Exhibit 10.6
XXXXXX ASSOCIATES LLC
FIRST AMENDMENT
TO NOTE PURCHASE AGREEMENT
$15,000,000
7.94% Senior Notes, Series A, Tranche 1
due March 30, 2007
$35,000,000
8.08% Senior Notes,
Series A, Tranche 2 due March 30, 2012
Dated as of June 15, 2000
To the Holders of the Senior Notes,
Series A, of Xxxxxx Associates LLC
Named in the Attached Schedule I
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement dated as of March 15,
2000 among Xxxxxx Associates LLC, a limited liability company organized under
the laws of Illinois (the "Company"), and each of the Purchasers named in
Schedule A thereto (the "Note Agreement"), pursuant to which the Company issued
$15,000,000 aggregate principal amount of its 7.94% Senior Notes, Series A,
Xxxxxxx 0, xxx Xxxxx 00, 0000 (xxx "Series A Tranche 1 Notes") and $35,000,000
aggregate principal. amount of its 8.08% Senior Notes, Series A, Tranche 2, due
March 30; 2012 (the "Series A Tranche 2 Notes" and together with the Series A
Tranche 1 Notes, the "Series A Notes"). You are referred to herein individually
as a "Holder" and collectively as the "Holders." Capitalized terms used and not
otherwise defined in this Amendment shall have the meanings ascribed to them in
the Note Agreement.
In connection with its issuance of Subsequent Notes, the Company has
requested the modification to Section 1.2 of the Note Agreement. In addition,
the Company has requested the modification of the representation contained in
Section 5.12(d) of the Note Agreement to correct an error. The Holders are
willing to grant an amendment on the terms and conditions hereinafter set forth.
In consideration of the premises and for good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the Company and the Holders
agree as follows:
1. AMENDMENTS
1.1 Amendment of Section 1.2. Section 1.2 of the Note Agreement is
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amended to read in its entirety as follows:
"1.2. Subsequent Series.
Subsequent series of notes ("Subsequent Notes") may
be issued pursuant to Supplemental Note Purchase Agreements as provided
in Section 2.2 in an aggregate principal amount not to exceed
$50,000,000, shall be sequentially identified as "Series B Notes," etc.
and shall be in the aggregate principal amount, be dated, bear
interest, be subject to required and optional prepayments and shall
mature as provided in the Supplemental Note Purchase Agreement pursuant
to which they are issued, and shall be substantially in the form set
out in Exhibit 2. The Series A Notes and the Subsequent Notes are
collectively referred to as the "Notes," such term to include any such
notes issued in substitution therefor pursuant to Section 13 of this
Agreement."
1.2 Amendment of Section 5.12. Section 5.12(d) of the Note Agreement
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is amended to read in its entirety as follows:
"(d) The expected postretirement benefit obligation
(determined as of the -last day of the Company's most recently ended
fiscal year in accordance with Financial Accounting Standards Board
Statement No. 106, without regard to liabilities attributable to
continuation coverage mandated by section 4980B of the Code) of the
Company and its Subsidiaries does not exceed $9,000,000."
2. REAFFIRMATION; ETC.
2.1 Reaffirmation of Note Agreement. The Company reaffirms its
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agreement to comply with each of the covenants, agreements and other provisions
of the Note Agreement and the Series A Notes, as amended by this Amendment.
2.2 No Default or Event of Default. The Company represents and
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warrants that no Default or Event of Default has occurred and is continuing or
will occur as a result of the execution of this Amendment.
2.3 Authorization. The execution, delivery and performance by the
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Company of this Amendment have been duly authorized by all necessary corporate
action and, except as provided herein, do not require any registration with,
consent or approval of, notice to or action by, any Person (including any
Governmental Authority) in order to be effective and enforceable. Each of the
Note Agreement and this Amendment constitutes the legal, valid and binding
obligations of the Company, enforceable against it in accordance with its
respective terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3. EFFECTIVE DATE
This Amendment shall become effective as of the date set forth above
upon satisfaction of each of the following conditions:
-2-
3.1 Consent of Requisite Holders. Each of the Holders of the Series A
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Notes outstanding shall have executed counterparts of this Amendment.
3.2 Expenses. The Company shall have paid all fees and expenses of
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special counsel to the Holders in connection with this Amendment.
4. MISCELLANEOUS
4.1 Ratification. Except as expressly amended, modified, deleted or
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added to hereby, all of the terms and conditions of the Note Agreement, the
Series A Notes and all other documents relating to the Note Agreement remain in
full force and effect, and the parties hereto expressly reaffirm and ratify
their respective obligations thereunder.
4.2 Reference to and Effect on the Note Agreement. Upon the
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effectiveness of this Amendment, each reference in the Note Agreement and in
other documents describing or referencing the Note Agreement to the "Agreement,"
"Note Agreement," "hereunder," "hereof," "herein," or words of like import
referring to the Note Agreement, shall mean and be a reference to the Note
Agreement, as amended hereby.
4.3 Binding Effect. This Amendment shall be binding upon and inure to
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the benefit of the respective successors and assigns of the parties hereto.
4.4 Governing Law. This Amendment shall be governed by and construed
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in accordance with Illinois law.
4.5 Counterparts. This Amendment may be executed in any number of
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counterparts, each executed counterpart constituting an original, but altogether
only one instrument.
-3-
If you are in agreement with the foregoing, please sign the
accompanying counterpart of this Amendment and return it to the Company,
whereupon the foregoing shall become a binding agreement between you and the
Company upon satisfaction of the conditions set forth in Section 3 of this
Amendment.
XXXXXX ASSOCIATES LLC
By: /s/ C. Xxxxxxxx Xxxxxxxx, III
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Name: C. Xxxxxxxx Xxxxxxxx, III
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Title: Principal & Authorized Representative,
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Assistant Secretary
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The foregoing is hereby agreed to as of the date thereof.
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name:_____________________________________
By: /s/ Xxxxx Xxxxx
----------------
Name:_____________________________________
Authorized Signatories
ALLSTATE LIFE INSURANCE COMPANY OF
NEW YORK
By: /s/ Xxxxxx X. Xxxxxx
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Name:_____________________________________
By: /s/ Xxxxx Xxxxx
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Name:_____________________________________
Authorized Signatories
S-1
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc., as
Investment Advisor
By: /s/ Xxxx X. Xxxxx
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Name:____________________________________
Title: Managing Director
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C.M. LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Sub-Adviser
By: /s/ Xxxx X. Xxxxx
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Name:_____________________________________
Title: Managing Director
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PACIFIC LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxxxx
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Name:_____________________________________
Title: Assistant Vice President
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By: /s/ Xxxxxx X. Milfs
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Title: Corporate Secretary
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PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
By: /s/ Xxxx X. Xxxxx
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Name:_____________________________________
Title: Vice President
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S-2
SCHEDULE I
Tranche I Original
Name of Holder Note Principal Amount
-------------- ---- ----------------
Allstate Life Insurance Company AIR-1 $5,000,000
Allstate Life Insurance Company of New York AIR-2 4,000,000
Citibank, Federal Savings Bank as Collateral Agent and AIR-3 6,000,000
Trustee under the Security and Trust Agreement Dated as
of September 1, 1993 (Northbrook Life Insurance Company,
Secured Party and Beneficiary)
Tranche I Original
Name of Holder Note Principal Amount
-------------- ---- ----------------
Massachusetts Mutual Life Insurance Company A2R-1 8,700,000
Massachusetts Mutual Life Insurance Company A2R-2 1,900,000
Massachusetts Mutual Life Insurance Company A2R-3 2,600,000
C.M. Life Insurance Company A2R-4 1,800,000
Mac & Co./1/ A2R-5 10,000,000
Mac & Co./2/ A2R-6 5,000,000
Phoenix Home Life Mutual Insurance Company A2R-7 5,000,000
__________________
/1/ Nominee for Pacific Life Insurance Company.
/2/ Nominee for Pacific Life Insurance Company.
1
Schedule I
