FIRST AMENDMENT TO PARTICIPATION AGREEMENT
THIS FIRST AMENDMENT TO PARTICIPATION AGREEMENT (this "Amendment"),
dated as of April 5, 1999, is entered into by and among:
(1) FAIR, XXXXX AND COMPANY, INC., a Delaware corporation
("Lessee");
(2) LEASE PLAN NORTH AMERICA, INC., an Illinois corporation
("Lessor");
(3) Each of the financial institutions listed in Schedule I to
the Participation Agreement referred to in Recital A below
(collectively, the "Participants"); and
(4) ABN AMRO BANK, N.V., acting through its San Francisco
International Branch, as agent for the Participants (in such capacity,
"Agent").
RECITALS
A. Lessee, Lessor, the Participants and Agent are parties to a
Participation Agreement dated as of May 15, 1998 (the "Participation
Agreement").
B. Lessee has requested Lessor, the Participants and Agent to amend the
Participation Agreement to change the covenant limiting Lessee's repurchase of
its Equity Securities.
X. Xxxxxx, the Participants and Agent are willing so to amend the
Participation Agreement upon the terms and subject to the conditions set forth
below.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Lessee, Lessor, the Participants and Agent hereby agree as
follows:
1. Definitions, Interpretation. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in the Participation Agreement, as
amended by this Amendment. The rules of construction set forth in Schedule 1.02
to the Participation Agreement shall, to the extent not inconsistent with the
terms of this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. Amendment to Participation Agreement. Subject to the satisfaction of
the conditions set forth in Xxxxxxxxx 0 xxxxx, Xxxxxx (xxx) of Subparagraph
5.02(f) of the Participation Agreement is hereby amended to read in full as
follows:
EXHIBIT 10.19
(iii) Lessee may repurchase its Equity Securities, provided
that the cost of any such repurchase, when added to the aggregate cost
of all other repurchases made pursuant to this clause (iii) since the
date of this Agreement, does not exceed the greater of $25 million or
five percent (5%) of Lessee's Tangible Net Worth on the last day of the
immediately preceding fiscal year.
3. Representations and Warranties. Lessee hereby represents and
warrants to Agent and the Participants that the following are true and correct
on the date of this Amendment and that, after giving effect to the amendment set
forth in Paragraph 2 above, the following will be true and correct on the
Effective Date (as defined below):
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other
Operative Documents are true and correct in all material respects as if
made on such date (except for representations and warranties expressly
made as of a specified date, which shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Operative Documents are in full force and
effect.
(Without limiting the scope of the term "Operative Documents," Lessee expressly
acknowledges in making the representations and warranties set forth in this
Paragraph 3 that, on and after the date hereof, such term includes this
Amendment.)
4. Effective Date. The amendments effected by Paragraph 2 above shall
become effective April, 5, 1999 (the "Effective Date") so long as Lessor, Agent
and the Participants have received on or prior to the effective Date this
Amendment duly executed by Lessor, Lessee, each Participant and Agent.
5. Effect of this Amendment. On and after the Effective Date, each
reference in the Participation Agreement and the other Operative Documents to
the Participation Agreement shall mean the Participation Agreement as amended
hereby. Except as specifically amended above, (a) the Participation Agreement
and the other Operative Documents shall remain in full force and effect and are
hereby ratified and affirmed and (b) the execution, delivery and effectiveness
of this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power, or remedy of the Participants or Agent, nor
constitute a waiver of any provision of the Participation Agreement or any other
Operative Document.
6. Miscellaneous.
(a) Counterparts. This Amendment may be executed in any number
of identical counterparts, any set of which signed by all the parties
hereto shall be deemed to constitute a complete, executed original for
all purposes.
(b) Headings. Headings in this Amendment are for convenience
of reference only and are not part of the substance hereof.
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(c) Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
[Signature pages follow]
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IN WITNESS WHEREOF, Lessee, Lessor, Agent and the Participants have
caused this Amendment to be executed as of the day and year first above written.
LESSEE: FAIR, XXXXX AND COMPANY, INC.
By: _____________________________________
Name: _______________________________
Title: ______________________________
LESSOR: LEASE PLAN NORTH AMERICA, INC.
By: _____________________________________
Name: _______________________________
Title: ______________________________
AGENT: ABN AMRO BANK N.V.
By: _____________________________________
Name: _______________________________
Title: ______________________________
By: _____________________________________
Name: _______________________________
Title: ______________________________
PARTICIPANTS: ABN AMRO BANK N.V.
By: _____________________________________
Name: _______________________________
Title: ______________________________
By: _____________________________________
Name: _______________________________
Title: ______________________________
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KEYBANK NATIONAL ASSOCIATION
By: _____________________________________
Name: _______________________________
Title: ______________________________
BANQUE NATIONALE de PARIS
By: _____________________________________
Name: _______________________________
Title: ______________________________
By: _____________________________________
Name: _______________________________
Title: ______________________________
FLEET NATIONAL BANK
By: _____________________________________
Name: _______________________________
Title: ______________________________
THE DAI-ICHI KANGO BANK, LIMITED
Los Angeles Agency
By: _____________________________________
Name: _______________________________
Title: ______________________________
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