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EXHIBIT 4.3
LETTER OF CONSENT, WAIVER, AND AMENDMENT
XXXXX CORPORATION
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
As of November 15, 1995
TO THE PERSONS LISTED ON
Annex 1 hereto
Re: Consent, Waiver and Amendment regarding certain Subsidiary
Guaranties and the acquisition by Xxxxx Corporation of certain
1991 Notes (as herein defined)
Ladies and Gentlemen:
Reference is made to each of the following:
(a) those certain Note Agreements, each dated as of June
15, 1991 (hereinafter referred to, collectively, as the "1991 NOTE
AGREEMENT"), by and among Xxxxx Corporation, a Delaware corporation
(hereinafter referred to as the "COMPANY"), and each of the
purchasers listed on Annex 1 thereto (hereinafter referred to,
collectively, as the "1991 PURCHASERS"), pursuant to which the Company
issued and sold, and the 1991 Purchasers purchased, the Company's
(i) 9.72% Series A Senior Notes due June 15, 1998
(hereinafter referred to, collectively, as the "SERIES A
NOTES") in the aggregate principal amount of
Twenty-Eight Million Dollars ($28,000,000), and
(ii) 10.16% Series B Senior Notes due June 15,
2001 (hereinafter referred to, collectively, as the "SERIES B
NOTES," and, together with the Series A Notes, the "1991
NOTES") in the aggregate principal amount of Fifty-Two Million
Dollars ($52,000,000); and
(b) those certain proposed Note Agreements, each dated as
of November 15, 1995 (hereinafter referred to, collectively, as the
"1995 NOTE AGREEMENT"), by and among the Company and each of the
purchasers listed on Annex 1 thereto (hereinafter referred to,
collectively, as the "1995 PURCHASERS"), which provide for the issuance
and sale by the Company, and the purchase by the 1995 Purchasers, of
the Company's:
(i) 7.62% Series C Senior Notes due December 15,
2005 (hereinafter referred to, collectively, as the "SERIES C
NOTES") in the aggregate principal amount of Thirty-Nine
Million Dollars ($39,000,000), and
(ii) Series D Senior Notes due December 15, 2005
(hereinafter referred to, collectively, as the "SERIES D
NOTES," and, together with the Series C Notes, the "1995
NOTES") in the aggregate principal amount of Twenty-One
Million Dollars ($21,000,000).
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Pursuant to the terms of the 1995 Note Agreement, the purchasers of the
Series D Notes shall tender to the Company part or all of the Series B Notes
held by such purchasers as payment of the purchase price of an equal principal
amount of the Series D Notes.
Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed thereto in the 1991 Note Agreement.
SECTION 1. CERTAIN TERMS OF THE 1991 NOTE AGREEMENT
1.1 PRO RATA OFFER FOR 1991 NOTES; RETIRED NOTES DEEMED
NOT OUTSTANDING. Pursuant to paragraph 4F of the 1991 Note Agreement, the
Company is, among other things, prohibited from acquiring any of the 1991 Notes
prior to their respective stated final maturities, unless (i) the Company shall
have offered to acquire a proportional share of the aggregate principal amount
of 1991 Notes held by each holder of 1991 Notes at the time outstanding upon
the same terms, conditions and consideration, and (ii) such acquisition is not
directly or indirectly conditioned upon the holder of any 1991 Note giving its
consent to any amendment, supplement or waiver to any provision of the 1991
Note Agreement. Additionally, any 1991 Note retired or acquired by the Company,
a Subsidiary or an Affiliate in connection with an offer to acquire Notes
pursuant to paragraph 4F is deemed by the terms of the 1991 Note Agreement not
to be outstanding.
1.2 SUBSIDIARY GUARANTIES. Pursuant to paragraph 5J of
the 1991 Note Agreement, the Company is obligated to, among other things, cause
a Restricted Subsidiary which is not already a guarantor of the 1991 Notes to
execute and deliver a Subsidiary Guaranty in each case where such Restricted
Subsidiary guaranties the obligations of the Company under the Revolving Credit
Agreement.
1.3 EVENT OF DEFAULT. Pursuant to paragraph 7A(vi) of the
1991 Note Agreement, it shall, among other things, be an Event of Default if
the Company fails to perform or observe its obligations in respect of paragraph
5J of the 1991 Note Agreement and such failure shall not be remedied within
thirty (30) days after a Responsible Officer of the Company obtains actual
knowledge thereof.
1.4 CONSENTS TO AMENDMENTS. Pursuant to paragraph 11C
of the 1991 Note Agreement, the written consent of all of the holders of 1991
Notes is required to change the time of payment of interest payable with
respect to any Note.
SECTION 2. COMPANY REPRESENTATIONS AND WARRANTIES
In order to induce each of the other parties hereto to execute
and accept this Letter, the Company hereby represents and warrants that:
2.1 HOLDERS OF 1991 NOTES. Annex 1 hereto contains the
names of all of the holders of the 1991 Notes as of the date hereof, indicating
which of such holders are also 1995 Purchasers.
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2.2 ADDITIONAL RESTRICTED SUBSIDIARY GUARANTORS UNDER THE
REVOLVING CREDIT AGREEMENT.
(A) NAVAJO CRUDE. Navajo Crude Oil Marketing
Company, a Texas corporation ("Navajo Crude"), is a Restricted
Subsidiary which has guarantied the obligations of the Company
under the Revolving Credit Agreement pursuant to a guaranty
agreement dated as of April 7, 1994.
(B) NAVAJO WESTERN. Navajo Western Asphalt
Company, a New Mexico corporation ("Navajo Western"), is a
Restricted Subsidiary which has guarantied the obligations of
the Company under the Revolving Credit Agreement pursuant to a
guaranty agreement dated as of February 20, 1992.
(C) NO OTHER GUARANTORS. Navajo Crude and Navajo
Western are the only Restricted Subsidiaries which have
undertaken to guaranty the obligations of the Company under
the Revolving Credit Agreement since June 26, 1991.
(D) FAILURE TO DELIVER SUBSIDIARY GUARANTIES. A
Responsible Officer of the Company has discovered that the
Company has inadvertently failed to comply with its
obligations under paragraph 5J of the 1991 Note Agreement.
Such Responsible Officer first became aware of such failure on
or about October 30, 1995.
2.3 MATURITY DATES OF 1991 NOTES AND 1995 NOTES. The
maturity date of the Series A Notes is June 15, 1998, the maturity date of the
Series B Notes is June 15, 2001, the maturity date of the Series C Notes is
December 15, 2005 and the maturity date of the Series D Notes is December 15,
2005. The Company has no present intention of amending or changing any of the
respective maturity dates listed in the immediately preceding sentence.
SECTION 3. DELIVERY OF SUBSIDIARY GUARANTIES
In order to remedy the Company's failure to comply with
paragraph 5J of the 1991 Note Agreement, prior to or contemporaneously
herewith, the Company has caused each of Navajo Crude and Navajo Western to
execute and deliver to each of holder of 1991 Notes (i) a Subsidiary Guaranty
dated as of November 1, 1995, substantially in the form of Exhibit E to the
1991 Note Agreement, and (ii) a copy of the resolutions of the board of
directors of such Subsidiaries, certified by their respective secretaries or
assistant secretaries, authorizing the execution, delivery and performance of
such Subsidiary Guaranty.
SECTION 4. CONSENT, WAIVER AND AMENDMENT
By executing and delivering to the Company a counterpart of
this letter of consent, waiver and amendment ("THIS LETTER"), each holder of
1991 Notes:
(a) consents to the acquisition of $21,000,000 of
the Series B Notes by the Company in exchange for an equal
aggregate principal amount of the 1995 Notes pursuant to
the terms and conditions of the 1995 Note Agreement,
notwithstanding paragraph 4F of the 1991 Note Agreement,
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(b) consents to the payment of accrued interest to the
date of acquisition on each Series B Note being delivered to the
Company in exchange for the Series D Notes,
(c) waives any Default or Event of Default under
paragraph 7A(vi) of the 1991 Note Agreement that may have existed due
solely to the failure of the Company to cause Navajo Crude and Navajo
Western to deliver a Subsidiary Guaranty, and the required resolutions
of their respective board of directors and certificates from their
respective secretaries or assistant secretaries, in a more timely
fashion, and
(d) agrees that the last paragraph of paragraph 4F the
1991 Note Agreement is hereby amended and restated so as to read in it
entirety as follows:
"For purposes of paragraph 4A, any Notes purchased or
otherwise acquired by the Company or any of the Subsidiaries
or Affiliates pursuant to this paragraph 4F shall be deemed to
be outstanding and the Company, such Subsidiary or such
Affiliate the holder thereof, but such Notes shall not be
deemed to be outstanding for any other purpose under this
Agreement (including, without limitation, any determination of
the Required Holders)."
SECTION 5. NO OTHER WAIVERS, AMENDMENTS
Except as expressly provided herein, the terms of this Letter
shall not effect or amend any other term or provision of the 1991 Note
Agreement, and shall not operate as a waiver by any of the 1991 Purchasers, or
any other holder of the 1991 Notes, of, or otherwise prejudice their rights,
remedies or powers under, the 1991 Note Agreement or under applicable law and
the terms and provisions of the 1991 Note Agreement continue in full force and
effect.
SECTION 6. MISCELLANEOUS
6.1 GOVERNING LAW. THIS LETTER SHALL BE CONSTRUED,
INTERPRETED, AND ENFORCED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY
WITHIN SUCH STATE, WITHOUT REGARD TO ANY CHOICE OR CONFLICTS OF LAW RULES.
6.2 DUPLICATE ORIGINALS. Two or more duplicate originals
of this Letter may be signed by the parties, each of which shall be an original
but all of which together shall constitute one and the same instrument. This
Letter may be executed in one or more counterparts and shall be effective when
at least one counterpart shall have been executed by each party hereto, and
each set of counterparts which, collectively, show execution by each party
hereto shall constitute one duplicate original.
6.3 SECTION HEADINGS. The titles of the sections hereof
appear as a matter of convenience only, do not constitute a part of this Letter
and shall not affect the construction hereof.
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6.4 SUCCESSORS AND ASSIGNS. This Letter shall inure to
the benefit of and be binding upon the successors and assigns of each of the
partieshereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; NEXT PAGE IS SIGNATURE PAGE]
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If this Letter is satisfactory to you, please so indicate by signing
the acceptance at the foot of a counterpart of this Letter, whereupon this
Letter will become binding between us in accordance with its terms.
Very truly yours,
XXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President, Treasurer
and Controller
[SIGNATURE PAGE TO 1995 XXXXX CORPORATION LETTER OF CONSENT,
WAIVER AND AMENDMENT]
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Accepted and Agreed to:
NEW YORK LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: AssistanT Vice President
[SIGNATURE PAGE TO 1995 XXXXX CORPORATION LETTER OF CONSENT,
WAIVER AND AMENDMENT]
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XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Investment Officer
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. XxxXxxx
Title: Vice President - Investments
[SIGNATURE PAGE TO 1995 XXXXX CORPORATION LETTER OF CONSENT,
WAIVER AND AMENDMENT]
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CONFEDERATION LIFE INSURANCE
COMPANY
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: Director, Private Placements
Confederation Insurance Co.
(U.S.) In Rehabilitation
By:
-------------------
Name:
Title:
[SIGNATURE PAGE TO 1995 XXXXX CORPORATION LETTER OF CONSENT,
WAIVER AND AMENDMENT]
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THE PENN INSURANCE AND ANNUITY
COMPANY
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Investment Officer
THE PENN MUTUAL LIFE INSURANCE
COMPANY
BY: /s/ XXXXXXX X. XXXXXXXXX
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NAME: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
[SIGNATURE PAGE TO 1995 XXXXX CORPORATION LETTER OF CONSENT,
WAIVER AND AMENDMENT]
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THE MANHATTAN LIFE INSURANCE
COMPANY
By: /s/ X.X. XXXXXXXX
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Name: X.X. Xxxxxxxx
Title: Sr. Vice President & CFO
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: Second Vice President
THE UNION CENTRAL LIFE INSURANCE
COMPANY
By: /s/ XXXXXX X. XXXXXX III
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NAME: Xxxxxx X. Xxxxxx III
Title: Assistant Treasurer
[SIGNATURE PAGE TO 1995 XXXXX CORPORATION LETTER OF CONSENT,
WAIVER AND AMENDMENT]
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SAFECO LIFE INSURANCE
COMPANY
By: /s/ XXXXXXX X. XXXXXX
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NAME: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
[SIGNATURE PAGE TO 1995 XXXXX CORPORATION LETTER OF CONSENT,
WAIVER AND AMENDMENT]
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AMERICAN INTERNATIONAL LIFE
ASSURANCE COMPANY OF NEW YORK
By: /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO 1995 XXXXX CORPORATION LETTER OF CONSENT,
WAIVER AND AMENDMENT]
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PAN-AMERICAN LIFE INSURANCE
COMPANY
By: /s/ X. XXXXXXXX STONE
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Name: X. Xxxxxxxx Xxxxx
Title: Vice President
Corporate Securities
[SIGNATURE PAGE TO 1995 XXXXX CORPORATION LETTER OF CONSENT,
WAIVER AND AMENDMENT]
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JEFFERSON-PILOT LIFE INSURANCE
COMPANY
By: /s/ XXXXXX X. XXXXXX, XX
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Name: Xxxxxx X. Xxxxxx, XX
Title: Second Vice President
[SIGNATURE PAGE TO 1995 XXXXX CORPORATION LETTER OF CONSENT,
WAIVER AND AMENDMENT]
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ANNEX 1
LIST OF HOLDERS OF 1991 NOTES
NEW YORK LIFE INSURANCE COMPANY
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY (A 1995 PURCHASER)
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY (A 1995 PURCHASER)
CONFEDERATION LIFE INSURANCE COMPANY
THE PENN INSURANCE AND ANNUITY COMPANY
THE PENN MUTUAL LIFE INSURANCE COMPANY
THE MANHATTAN LIFE INSURANCE COMPANY
THE UNION CENTRAL LIFE INSURANCE COMPANY
SAFECO LIFE INSURANCE COMPANY
AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY OF NEW YORK
PAN-AMERICAN LIFE INSURANCE COMPANY (A 1995 PURCHASER)
JEFFERSON-PILOT LIFE INSURANCE COMPANY (A 1995 PURCHASER)
Annex 1-1