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XXXX-XXXXX COMPANY
THIRD AMENDMENT AGREEMENT
Dated as of January 15, 1997
Re: Note Agreements Dated as of March 22, 1996
and
$30,000,000 original principal amount of 7.13%
Senior Notes Due October 1, 2011
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
SECTION 1. AMENDMENTS TO EXISTING NOTE AGREEMENTS 2
Section 1.1. General Reference Amendment. 2
Section 1.2. Amendments to Section 1.1 2
Section 1.3. Amendments to Section 2 2
Section 1.4. Amendments to Section 5.1 6
Section 1.5. Amendment to Section 6.7 6
Section 1.6. Amendment to Section 6.8 6
SECTION 2. AMENDMENT OF EXISTING NOTES 7
Section 2.1. Amendment of Existing Notes 7
SECTION 3. EXCHANGE OF NOTES 7
Section 3.1. Issuance of Notes 7
Section 3.2. Form and Registration 8
Section 3.3. Delivery of Notes 8
Section 3.4. Exchange Not Deemed Prepayment 8
SECTION 4. CONDITIONS PRECEDENT AND ADDITIONAL AGREEMENTS 8
Section 4.1. Conditions Precedent 8
SECTION 5. REPRESENTATIONS. 9
Section 5.1. Representations of the Company 9
SECTION 6. MISCELLANEOUS 9
Section 6.1. Capitalized Terms 9
Section 6.2. Existing Note Agreements 10
Section 6.3. References 10
Section 6.4. Successors and Assigns 10
Section 6.5. Governing Law 10
Section 6.6. Expenses 10
Section 6.7. Counterparts 11
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Signature 11
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XXXX-XXXXX COMPANY
THIRD AMENDMENT AGREEMENT
Re:
Note Agreements Dated as of March 22, 1996,
and
$30,000,000 original principal amount of 7.13%
Senior Notes Due October 1, 2011
Dated as of
January 15, 1997
(the "EFFECTIVE DATE")
To Each of the Holders
of Notes listed in Schedule I
to the Note Agreements described below
Gentlemen:
Reference is made to (i) the separate Note Agreements each dated as of
March 22, 1996 between XXXX-XXXXX COMPANY, a Delaware corporation (the
"COMPANY"), and each of you, respectively (the "NOTEHOLDERS"), as amended by
that certain First Amendment dated as of November 15, 1996 and that certain
Second Amendment dated as of November 15, 1996 (as so amended, the "EXISTING
NOTE AGREEMENTS"), and (ii) the $30,000,000 original principal amount of 7.13%
Senior Notes due October 1, 2011 issued pursuant to the Existing Note Agreements
(the "EXISTING NOTES"). The Existing Note Agreements, as amended hereby, shall
be referred to as the "NOTE AGREEMENTS," and the Existing Notes, as amended
hereby, shall be referred to as the "NOTES."
For good and valuable consideration, the Company requests the amendment of
certain provisions of the Existing Note Agreements and the Existing Notes as
hereinafter provided.
Upon your acceptance hereof and the satisfaction of all conditions
precedent hereto, this Third Amendment Agreement shall constitute a contract
between us amending the Existing Note Agreements and the Existing Notes, but
only in the respects hereinafter set forth:
SECTION 1. AMENDMENTS TO EXISTING NOTE AGREEMENTS.
SECTION 1.1. GENERAL REFERENCE AMENDMENT. From and after January 15,
1997, each reference in the Existing Note Agreements and the Existing Notes to
the "$30,000,000 7.13% Senior Notes Due October 1, 2011", is hereby amended to
refer to the "$30,000,000 First Amended and Restated 8.13% Senior Notes Due
October 1, 2006";
SECTION 1.2. AMENDMENTS TO SECTION 1.1. (a) From and after January 15,
1997, Section 1.1 of the Existing Note Agreements is hereby amended to change
the references in such section from "7.13%" and "8.13" to "8.13%" and "9.13%",
respectively and to change the references in such section from "OCTOBER 1, 2011"
to "OCTOBER 1, 2006".
(b) Section 1.1 of the Existing Note Agreements is hereby amended by
inserting the following paragraph at the end thereof:
Notwithstanding anything contained herein to the
contrary, in addition to the stated interest rate applicable
to the Notes (including, without limitation, the interest
rate applicable to overdue payments in respect of the
Notes), the Notes shall bear additional interest at the rate
of .50% per annum during any Interest Rate Event Period.
SECTION 1.3. AMENDMENTS TO SECTION 2. (a) Section 2.1 of the
Existing Note Agreements is hereby amended to read in its entirety as follows:
SECTION 2.1. REQUIRED PRINCIPAL PREPAYMENTS. The
Company agrees that it will prepay and apply, and there
shall become due and payable an amount equal to the amounts
set forth hereinbelow on October 1 in each year beginning
October 1, 2000 up to and including October 1, 2005 (each
such payment and the payment on October 1, 2006 being
hereinafter referred to collectively as the "PRINCIPAL
PAYMENT DATES") in respect of the aggregate principal
indebtedness evidenced by the Notes. The remaining unpaid
principal amount of the Notes and accrued and unpaid
interest thereon shall be due and payable on October 1,
2006.
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PRINCIPAL PRINCIPAL
PAYMENT DATE AMOUNT
October 1, 2000 $2,500,000
October 1, 2001 $4,000,000
October 1, 2002 $4,500,000
October 1, 2003 $4,500,000
October 1, 2004 $4,500,000
October 1, 2005 $5,000,000
No premium shall be payable in connection with any
required prepayment made pursuant to this SECTION 2.1. Upon
any repurchase of less than all of the outstanding Notes
pursuant to SECTION 2.6, SECTION 2.7 or SECTION 6.13, the
principal amount of each required principal prepayment of
the Notes becoming due under this SECTION 2.1 on and after
the date of such prepayment or purchase shall be reduced in
the same proportion as the aggregate unpaid principal amount
of the Notes is reduced as a result of such repurchase.
(b) Section 2 of the Existing Note Agreements is hereby amended to
insert the following new Section 2.7 at the end thereof:
SECTION 2.7. CHANGE IN CONTROL. (a) NOTICE OF CHANGE
IN CONTROL OR CONTROL EVENT. The Company will, within 3
days after any Change in Control or Control Event, give
written notice of such Change in Control or Control Event to
each holder of Notes UNLESS notice in respect of such Change
in Control (or the Change in Control contemplated by such
Control Event) shall have been given pursuant to
subparagraph (b) of this SECTION 2.7. If a Change in
Control has occurred, such notice shall contain and
constitute an offer to prepay Notes as described in
subparagraph (c) of this SECTION 2.7 and shall be
accompanied by the certificate described in subparagraph (g)
of this SECTION 2.7.
(b) CONDITION TO COMPANY ACTION. The Company will not
take any action that consummates or finalizes a Change in
Control unless (i) at least 45 days prior to such action it
shall have given to each holder of Notes written notice
containing and constituting an offer to prepay Notes as
described in subparagraph (c) of this SECTION 2.7, accompanied
by the certificate described in
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subparagraph (g) of this SECTION 2.7, and (ii) contemporaneously
with such action, it prepays all Notes required to be prepaid in
accordance with this SECTION 2.7.
(c) OFFER TO PREPAY NOTES. The offer to prepay Notes
contemplated by subparagraphs (a) and (b) of this SECTION
2.7 shall be an offer to prepay, in accordance with and
subject to this SECTION 2.7, all, but not less than all, of
the Notes held by each holder (in this case only, "HOLDER"
in respect of any Note registered in the name of a nominee
for a disclosed beneficial owner shall mean such beneficial
owner) on a date specified in such offer (the "PROPOSED
PREPAYMENT DATE"). If such Proposed Prepayment Date is in
connection with an offer contemplated by subparagraph (a) of
this SECTION 2.7, such date shall be not less than 30 days
and not more than 45 days after the date of such offer (if
the Proposed Prepayment Date shall not be specified in such
offer, the Proposed Prepayment Date shall be the 45th day
after the date of such offer).
(d) ACCEPTANCE. A holder of Notes may accept the
offer to prepay made pursuant to this SECTION 2.7 by causing
a notice of such acceptance to be delivered to the Company
at least 5 days prior to the Proposed Prepayment Date. A
failure by a holder of Notes to respond to an offer to
prepay made pursuant to this SECTION 2.7 shall be deemed to
constitute an acceptance of such offer by such holder.
(e) PREPAYMENT. Prepayment of the Notes to be prepaid
pursuant to this SECTION 2.7 shall be at 100% of the
principal amount of such Notes, plus the Make Whole Premium
determined for the date of prepayment with respect to such
principal amount, together with interest on such Notes
accrued to the date of prepayment. On the business day
preceding the date of prepayment, the Company shall deliver
to each holder of Notes being prepaid a statement showing
the Make Whole Premium due in connection with such
prepayment and setting forth the details of the computation
of such amount. The prepayment shall be made on the
Proposed Prepayment Date except as provided in subparagraph
(f) of this SECTION 2.7.
(f) DEFERRAL PENDING CHANGE IN CONTROL. The
obligation of the Company to prepay Notes pursuant to the
offers required by subparagraph (b) and accepted in
accordance with
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subparagraph (d) of this SECTION 2.7 is subject to the occurrence
of the Change in Control in respect of which such offers and
acceptances shall have been made. In the event that such Change in
Control does not occur on the Proposed Prepayment Date in respect
thereof, the prepayment shall be deferred until and shall be made
on the date on which such Change in Control occurs. The Company
shall keep each holder of Notes reasonably and timely informed of
(i) any such deferral of the date of prepayment, (ii) the date on
which such Change in Control and the prepayment are expected to
occur, and (iii) any determination by the Company that efforts to
effect such Change in Control have ceased or been abandoned (in
which case the offers and acceptances made pursuant to this SECTION
2.7 in respect of such Change in Control shall be deemed rescinded).
(g) OFFICER'S CERTIFICATE. Each offer to prepay the
Notes pursuant to this SECTION 2.7 shall be accompanied by a
certificate, executed by a senior financial officer of the
Company and dated the date of such offer, specifying:
(i) the Proposed Prepayment Date; (ii) that such offer is
made pursuant to this SECTION 2.7; (iii) the principal
amount of each Note offered to be prepaid; (iv) the
estimated Make Whole Premium due in connection with such
prepayment (calculated as if the date of such notice were
the date of the prepayment), setting forth the details of
such computation; (v) the interest that would be due on each
Note offered to be prepaid, accrued to the Proposed
Prepayment Date; (vi) that the conditions of this SECTION
2.7 have been fulfilled; and (vii) in reasonable detail, the
nature and date or proposed date of the Change in Control.
(h) "CHANGE IN CONTROL" DEFINED. "CHANGE IN CONTROL"
means any of the following events or circumstances:
if any person (as such term is used in section
13(d) and section 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE
ACT") or related persons constituting a group (as
such term is used in Rule 13d-5 under the Exchange
Act), become the "beneficial owners" (as such term
is used in Rule 13d-3 under the Exchange Act),
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directly or indirectly, of more than 35% of the
total voting power of all classes then outstanding
of the Company's voting stock.
(i) "CONTROL EVENT" DEFINED. "CONTROL EVENT" means:
(i) the execution by the Company or any of
its Subsidiaries or Affiliates of any agreement or
letter of intent with respect to any proposed
transaction or event or series of transactions or
events which, individually or in the aggregate,
may reasonably be expected to result in a Change
in Control,
(ii) the execution of any written agreement
which, when fully performed by the parties
thereto, would result in a Change in Control, or
(iii) the making of any written offer by
any person (as such term is used in section 13(d)
and section 14(d)(2) of the Exchange Act) or
related persons constituting a group (as such term
is used in Rule 13d-5 under the Exchange Act) to
the holders of the common stock of the Company,
which offer, if accepted by the requisite number
of holders, would result in a Change in Control.
SECTION 1.4. AMENDMENTS TO SECTION 5.1. Section 5.1 of the
Existing Note Agreements is hereby amended as follows: (a) by inserting the
following definition in alphabetical order:
"INTEREST RATE EVENT PERIOD" shall mean any period
during which the Company fails to have outstanding unsecured
long-term Indebtedness which has a then current rating of
BBB- or higher by Standard & Poor's Corporation.
(b) by amending the definition of "Make Whole Premium" so that the
reference to "7.13%" contained therein shall read "8.13%" as and after the
effective date hereof.
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SECTION 1.5. AMENDMENT TO SECTION 6.7. Section 6.7 of the Existing
Note Agreements is hereby amended to read in its entirety as follows:
SECTION 6.7. STOCKHOLDERS' EQUITY. The Company will not, at any
time, permit Stockholders' Equity to be less than the sum of (a)
$170,000,000, plus (b) an aggregate amount equal to 25% of its Consolidated
Net Income (but, in each case, only if a positive number) for each
completed fiscal year beginning with the fiscal year ended January 3, 1998.
SECTION 1.6. AMENDMENT TO SECTION 6.8. Section 6.8(a) of the Existing
Note Agreements is hereby amended to read in its entirety as follows:
SECTION 6.8. INCURRENCE OF DEBT. (a) Neither the Company nor any
Subsidiary will create, issue, assume, guarantee or otherwise incur or
become liable in respect of any Debt, except:
(1) the Notes;
(2) Debt of the Company and its Subsidiaries outstanding as of the
date of this Agreement and reflected on the consolidated balance sheet of
the Company and its Subsidiaries as of December 30, 1995;
(3) additional unsecured Debt of the Company; PROVIDED that at the
time of issuance thereof and after giving effect thereto and to the
application of the proceeds thereof Debt of the Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP
shall not, during any fiscal year set forth below, exceed the percent of
Total Capitalization set forth opposite such period:
PERCENTAGE OF DEBT TO
FISCAL YEAR TOTAL CAPITALIZATION
1996 70%
1997 70%
1998 67.5%
1999 65%
2000 and thereafter 60%
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(4) additional Debt of the Company and its Subsidiaries secured by
Liens permitted by and incurred within the limitations of SECTION
6.9(a)(8), SECTION 6.9(a)(9) or SECTION 6.9(a)(10); PROVIDED that at the
time of issuance thereof and after giving effect thereto and to the
application of the proceeds thereof Debt of the Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP
shall not, during any fiscal year set forth below, exceed the percent of
Total Capitalization set forth opposite such period:
PERCENTAGE OF
DEBT TO TOTAL
FISCAL YEAR CAPITALIZATION
1996 70%
1997 70%
1998 67.5%
1999 65%
2000 and thereafter 60%
(5) Debt of a Subsidiary to the Company or to a Wholly-Owned
Subsidiary.
SECTION 2. AMENDMENT OF EXISTING NOTES.
SECTION 2.1. AMENDMENT OF EXISTING NOTES. The Existing Notes shall be
and are hereby amended to be in the form of Exhibit A hereto.
SECTION 3. EXCHANGE OF NOTES.
SECTION 3.1. ISSUANCE OF NOTES. The Company agrees to issue and deliver
on the Effective Date of this Third Amendment Agreement the new Notes in the
form of Exhibit A hereto to the Noteholders in exchange for their outstanding
Existing Notes. The Noteholders agree to surrender their Existing Notes to the
Company in exchange for the new Notes, and the Existing Notes shall be canceled
by the Company and shall be void. The Company shall pay any stamp tax or
governmental charge imposed upon such exchange (including, without limitation,
any income or similar tax that is imposed upon the gain, if any, that is
realized by such Noteholder in connection with the exchange). Notwithstanding
anything contained herein to the contrary, the Notes shall bear interest at the
rate of 7.13% per annum for the period from October 1, 1996 to and including
January 14, 1997.
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SECTION 3.2. FORM AND REGISTRATION. Each Note shall be in the form of a
single registered Note, shall be registered in the name of the Noteholder
surrendering such Existing Note as reflected on the books and records of the
Company, shall be issued for the same principal amount (after giving effect to
all prepayments of Notes prior to January 15, 1997) as the outstanding principal
amount of the Existing Note surrendered in exchange therefor, and shall be dated
October 1, 1996.
SECTION 3.3. DELIVERY OF NOTES. The Company shall deliver the Notes in
proper form at the offices of Xxxxxxx and Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, to be held by such firm for delivery against surrender
by the Noteholders in exchange therefor of the Existing Notes.
SECTION 3.4. EXCHANGE NOT DEEMED PREPAYMENT. Each of the Noteholders and
the Company agrees that the amendments affected pursuant to this Third Amendment
Agreement and the exchange of Notes for Existing Notes pursuant to this Third
Amendment Agreement shall not be deemed a prepayment, redemption or repurchase
of the Existing Notes for any purpose, including Section 2 or Section 6.13 of
the Note Agreements.
SECTION 4. CONDITIONS PRECEDENT AND ADDITIONAL AGREEMENTS.
SECTION 4.1. CONDITIONS PRECEDENT. Each Noteholder's agreements set
forth in Section 1 of this Third Amendment Agreement are effective subject to
the satisfaction of the following conditions precedent:
(a) Each Noteholder shall have received this Third Amendment
Agreement, duly executed by the Company.
(b) The holders of 100% of the outstanding principal amount of the
Notes shall have consented to this Third Amendment Agreement as evidenced
by their execution hereof.
(c) The Company shall have provided to the holders of the Notes an
opinion of Xxx X. Xxxxxxx, Esq., counsel to the Company, substantially in
the form Exhibit B hereto and otherwise in form and substance satisfactory
to the holders of the Notes.
(d) The fees and disbursements of special counsel to the holders of
the Notes incurred through the Closing Date shall have been satisfied by
the Company.
SECTION 5. REPRESENTATIONS.
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SECTION 5.1. REPRESENTATIONS OF THE COMPANY. The Company hereby
represents and warrants that as of the date of execution and delivery of this
Third Amendment Agreement and as of the Effective Date:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation.
(b) The Company has the requisite power to own its property and to
carry on its business as now being conducted.
(c) The Company is duly qualified and in good standing as a foreign
corporation, authorized to do business in each jurisdiction in which the
failure to do so would, individually or in the aggregate, have a material
adverse effect on the business, condition (financial or other), assets,
operations, properties or prospects of the Company.
(d) This Third Amendment Agreement and the Note Agreements and Notes
(as amended hereby) are within the corporate powers of the Company and have
been duly authorized by all necessary corporate action on the part of the
Company and constitute (or, in the case of this Third Amendment Agreement,
when executed and delivered by holders of 100% of the outstanding principal
amount of the Notes will constitute) legal, valid and binding obligations
of the Company enforceable in accordance with their respective terms.
(e) The execution, delivery and performance of this Third Amendment
Agreement by the Company does not and will not result in a violation of or
default under (A) the certificate of incorporation or bylaws of the
Company, (B) any agreement to which the Company is a party or by which it
is bound or to which the Company or any of its properties is subject, (C)
any order, writ, injunction or decree binding on the Company, or (D) any
statute, regulation, rule or other law applicable to the Company.
(f) No material authorization, consent, approval, exemption or action
by or notice to or filing with any court or administrative or governmental
body is required in connection with the execution and delivery of this
Third Amendment Agreement or the consummation of the transactions
contemplated hereby.
SECTION 6. MISCELLANEOUS.
SECTION 6.1. CAPITALIZED TERMS. The capitalized terms used in this Third
Amendment Agreement shall have the respective meanings specified in the Existing
Note Agreements unless otherwise herein defined or the context hereof shall
otherwise require.
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SECTION 6.2. EXISTING NOTE AGREEMENTS. Except as amended herein, all
terms and provisions of the Existing Note Agreements are hereby ratified,
confirmed and approved in all respects.
SECTION 6.3. REFERENCES. Any and all notices, requests, certificates and
other instruments, including the Notes, may refer to the "Note Agreements," or
the "Note Agreements each dated as of November 15, 1993" without making specific
reference to this Third Amendment Agreement, but nevertheless all such
references shall be deemed to include this Third Amendment Agreement unless the
context shall otherwise require.
SECTION 6.4. SUCCESSORS AND ASSIGNS. This Third Amendment Agreement and
all covenants herein contained shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereunder. All covenants
made by the Company and the Noteholders herein shall survive the closing and the
delivery of this Third Amendment Agreement.
SECTION 6.5. GOVERNING LAW. This Third Amendment Agreement shall be
governed by and construed in accordance with Minnesota law.
SECTION 6.6. EXPENSES. The Company will pay and/or reimburse all
reasonable expenses of the Noteholders in connection with the negotiation,
preparation, execution and delivery of this Amendment and the transactions
contemplated hereby, in accordance with SECTION 9.4 of the Note Agreements.
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SECTION 6.7. COUNTERPARTS. This Third Amendment Agreement may be
executed in any number of counterparts, each executed counterpart constituting
an original but all together only one instrument.
XXXX-XXXXX COMPANY
By:
Its
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This foregoing Third Amendment Agreement is hereby accepted and agreed to
as of the Effective Date and the undersigned hereby confirms that on January 15,
1997 and as of the date of execution and delivery hereof immediately prior to
the exchange of Notes provided for herein it held Notes of the Company as
indicated on Schedule I hereto.
THE VARIABLE ANNUITY LIFE INSURANCE
COMPANY
By:
Its
INDEPENDENT LIFE AND ACCIDENT
INSURANCE COMPANY
By:
Its
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NORTHWESTERN NATIONAL LIFE
INSURANCE COMPANY
By:
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NORTHERN LIFE INSURANCE COMPANY
By:
Its
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XXXX-XXXXX COMPANY
First Amended and Restated 8.13% Senior Note Due October 1, 2006
PPN: _________________
No. R- October 1, 1996
$
XXXX-XXXXX COMPANY, a Delaware corporation (the "COMPANY"), for value
received, hereby promises to pay to
or registered assigns the principal amount of
DOLLARS ($ ) on
October 1, 2006 together with interest on the principal amount from time to
time remaining unpaid hereon at the rate of 7.13% per annum from and after
the date hereof through and including January 14, 1997 and at the rate of
8.13% per annum from the date hereof until maturity (computed on the basis of
a 360-day year of 12 consecutive 30-day months) in installments payable on
April 1, 1997 and on the first day of each April and October thereafter to
and including the date of maturity hereof. The Company further promises to
pay interest on each overdue installment of principal, premium, if any, and
(to the extent legally enforceable) upon each overdue installment of interest
at the rate of 9.13% per annum in each case from and after the maturity of
each such installment, whether by acceleration or otherwise, until paid.
Subject only to SECTION 2.5 of the Note Agreements hereinafter referred to,
both the principal hereof, premium, if any, and interest hereon are payable
at the principal office of the Company in Minneapolis, Minnesota, in coin or
currency of the United States of America which at the time of payment shall
be legal tender for the payment of public and private debts.
This Note is one of the First Amended and Restated 8.13% Senior Notes due
October 1, 2006 of the Company in the aggregate principal amount of $30,000,000
issued or to be issued under and pursuant to the terms and provisions of
separate and several Note Agreements each dated as of March 22, 1996
(collectively, the "NOTE AGREEMENTS") entered into by the Company with the
institutional investors named in Schedule I thereto as amended by that certain
First Amendment dated as of November 15, 1996, as amended by that certain Second
Amendment dated as of November 15, 1996 and as amended by that certain Third
Amendment Agreement dated as of January 15, 1997. This Note and the holder
hereof are entitled equally and ratably with the holders of all other Notes
outstanding under the Note Agreements to all the benefits
EXHIBIT A
(to Third Amendment Agreement)
provided for thereby or referred to therein, to which Note Agreements
reference is hereby made for the statement thereof. This Note amends and
restates in its entirety that certain 7.13% Senior Note Number R-___, in the
original principal amount of $__________ issued by the Company on ____ and
registered in the name of __________________.
This Note and the other Notes outstanding under the Note Agreements may be
declared due prior to their expressed maturity date and certain prepayments are
required to be made thereon by the Company, all in the events, on the terms and
in the manner and amounts as provided in the Note Agreements.
The Notes are not subject to prepayment or redemption at the option of the
Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Note Agreements.
Notwithstanding anything contained herein to the contrary, in addition to
the stated interest rate applicable to the Notes (including, without limitation,
the interest rate applicable to overdue payments in respect of the Notes), the
Notes shall bear additional interest at the rate of .50% per annum during any
Interest Rate Event Period (as defined in the Note Agreements).
A-21
This Note is registered on the books of the Company and is transferable
only by surrender thereof at the principal office of the Company duly endorsed
or accompanied by a written statement of transfer duly executed by the
registered holder of this Note or his attorney duly authorized in writing.
Payment of or on account of principal, premium, if any, and interest on this
Note shall be made only to or upon the order in writing of the registered
holder.
XXXX-XXXXX COMPANY
By
Its
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DESCRIPTION OF CLOSING OPINION
OF COUNSEL TO THE COMPANY
The closing opinion of counsel for the Company called for by SECTION 4.1(c)
of the Third Amendment Agreement, shall be dated the Effective Date and
addressed to the Noteholders, shall be satisfactory in scope and form to the
Noteholders and shall be to the effect that:
1. The Company is a corporation that is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, has the requisite power and the authority to execute and
perform the Note Agreements, as amended, and to issue the Notes, as
amended, and has the full requisite power and the authority to conduct the
activities in which it is now engaged.
2. Each Note Agreement, as amended, has been duly authorized by all
necessary action on the part of the Company, has been duly executed and
delivered by the Company and constitutes the legal, valid and binding
contract of the Company enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally, and general principles of equity (regardless
of whether the application of such principles is considered in a proceeding
in equity or at law).
3. The Notes, as amended, have been duly authorized by all necessary
action on the part of the Company, have been duly executed and delivered by
the Company and constitute the legal, valid and binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors'
rights generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in equity
or at law).
The opinion of Xxx X. Xxxxxxx, Esq. shall cover such other matters relating
to the Third Amendment Agreement as the holders of the Notes may reasonably
request. With respect to matters of fact on which such opinion is based, such
counsel shall be entitled to rely on appropriate certificates of public
officials and officers of the Company.
EXHIBIT B
(to Third Amendment Agreement)
SCHEDULE I
The Variable Annuity Life Insurance Company $17,000,000
7.13% Senior Notes
Independent Life and Accident Insurance Company $3,000,000
7.13% Senior Notes
Var & Co. (as nominee of Northwestern National $4,000,000
Life Insurance Company) 7.13% Senior Notes
Var & Co. (as nominee of Northern Life $6,000,000
Insurance Company 7.13% Senior Notes
Schedule I
