EXHIBIT 10
SECOND AMENDMENT TO
AMENDED AND RESTATED KEEP WELL AGREEMENT
This Second Amendment to the Amended and Restated Keep Well Agreement (this
"Amendment") is dated as of June 17, 1997 and is made by and between The Fuji
Bank, Limited, a Japanese banking corporation ("Fuji"), acting by and through
its New York Branch, and Xxxxxx Financial, Inc., a Delaware corporation
("Finance").
RECITALS
A. Fuji and Finance are parties to that certain Amended and Restated Keep
Well Agreement dated as of August 28, 1992, as amended by that certain First
Amendment to Amended and Restated Keep Well Agreement dated as of May 3, 1995
(as so amended, the "Keep Well Agreement"). Capitalized terms used but not
otherwise defined herein shall have the respective meanings given to them in the
Keep Well Agreement.
B. By this Amendment, Fuji and Finance desire to amend the Keep Well
Agreement as more specifically set forth hereinafter.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment to the Keep Well Agreement. The Keep Well Agreement is
hereby amended as follows:
(a) The following new definitions are added to Section 1 of the Keep
Well Agreement in the appropriate alphabetical order:
"'Series A Preferred Stock' shall mean the 'Cumulative Perpetual
Senior Preferred Stock, Series A' issued by Finance."
"'Series B Preferred Stock' shall mean the 'Fixed Rate Noncumulative
Perpetual Senior Preferred Stock, Series B' issued by Finance and any
preferred stock issued by Finance in exchange therefor."
"'Series A Minimum Rating' shall mean with respect to: a) Moody's, a
rating of 'a3' and, with respect to Moody's successor rating agency,
if any, the comparable rating of such successor, all as determined in
accordance with the definition of Moody's below; and b) S&P, a rating
of 'A-' and, with respect to S&P's successor rating agency, if any,
the comparable rating of such successor, all as determined in
accordance with the definition of S&P below."
"'Series B Minimum Rating' shall mean with respect to: a) Moody's, a
rating of 'baa1' and, with respect to Moody's successor rating agency,
if any, the comparable rating of such successor, all as determined in
accordance with the definition of Moody's below; and b) S&P, a rating
of 'BBB' and, with respect to S&P's successor rating agency, if any,
the comparable rating of such successor, all as determined in
accordance with the definition of S&P below."
"'Termination Date' shall mean the earlier of (a) December 31, 2007
and (b) the Unsupported Rating Date, but in no event earlier than
December 31, 2002."
"'Unsupported Rating Date' shall mean such date on which Finance shall
have first obtained from each of the Rating Agencies a written
certification that upon termination of this Agreement the ratings on
the senior unsecured indebtedness of Finance without the support
provided by this Agreement shall be no lower than the ratings of
Finance with the support provided by this Agreement."
(b) The definition of "Minimum Rating" is deleted from Section 1 of
the Keep Well Agreement.
(c) The definition of "Moody's" in Section 1 of the Keep Well
Agreement is deleted in its entirety and there is inserted in its place the
following new definition:
"'Moody's' shall mean Xxxxx'x Investors Service, Inc. Any reference
in this Agreement to any specific rating by Xxxxx'x is a reference to
such rating as currently defined by Moody's and shall be deemed to
refer to the equivalent rating if such rating system changes. If
Moody's shall at any time discontinue rating either the Series A
Preferred Stock or the Series B Preferred Stock and S&P is not then
rating such Preferred Stock, then Xxxxxxx, Sachs & Co. for as long as
the Series A Preferred Stock shall remain outstanding and thereafter
Xxxxxx Brothers Inc., or its applicable successor, shall, within 30
days, select a nationally recognized substitute rating agency and
identify the comparable ratings from such agency. During such 30 day
period, Xxxxx'x rating shall be considered to be the last rating
Moody's provided before it discontinued rating the applicable
Preferred Stock."
(d) Clause (a) within the definition of "NW Preferred Stock" in
Section 1 of the Keep Well Agreement is deleted in its entirety and there is
inserted in its place the following new clause (a):
(a) Dividends. Dividends as to any series of NW Preferred Stock
shall be payable (if declared) quarterly commencing on the last day of
the calendar
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quarter during which such series is issued, and on the last day of
each calendar quarter thereafter (each such last day of a calendar
quarter being a "Dividend Date") for so long as that series is
outstanding (the dividend during the first such quarter to be
prorated); dividends on each series of NW Preferred Stock shall accrue
and be payable at a rate per annum equal at all times during a
calendar quarter ending on a Dividend Date to 1% per annum above the
rate of interest at which deposits in United States Dollars are
offered by the principal office of Fuji in London, England on the
second Business Day (it being agreed that for this purpose only, the
definition of "Business Day" shall not include reference to Chicago)
preceding the first day of such calendar quarter (or, in the case of
the first dividend period, preceding the date of issuance of such
series) to prime banks in the London interbank market for a period
equal to three months (or, in the case of such first dividend period,
equal to such shorter period commencing on the date of issuance of
such series and ending on the last day of the calendar quarter during
which such issuance occurred); provided, however that the dividends on
each series of NW Preferred Stock shall be noncumulative such that if
the Board of Directors of Finance fails to declare a dividend on the
NW Preferred Stock payable on a dividend payment date, then holders of
NW Preferred Stock will have no right to receive a dividend in respect
of the dividend period ending on such dividend payment date, and
Finance will have no obligation to pay dividends accrued for such
period, whether or not dividends on the NW Preferred Stock are
declared payable on any future dividend payment date; and provided
further, however, that no dividend shall be paid on any series of NW
Preferred Stock during the existence of a default in the payment of
principal of or interest on any outstanding indebtedness for money
borrowed of Finance;"
(e) The definition of "Preferred Stock" in Section 1 of the Keep Well
Agreement is deleted in its entirety and there is inserted in the appropriate
alphabetical order within Section 1 the following new definition:
"'Preferred Stock' shall mean either the Series A Preferred Stock or
the Series B Preferred Stock, or both, as the context shall require."
(f) The definition of "Rating Agencies" in Section 1 of the Keep Well
Agreement is deleted in its entirety and there is inserted in its place the
following new definition:
"'Rating Agencies' shall mean Moody's and S&P and their respective
successors, if any, selected in accordance with the definitions of
Moody's and S&P, respectively. In the event either Moody's or S&P
shall discontinue rating either the Series A Preferred Stock or the
Series B Preferred Stock or both while the other is continuing to
provide such ratings, 'Rating Agencies' shall thereafter mean the
Rating Agency which is continuing to provide such ratings."
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(g) The definition of "S&P" in Section 1 of the Keep Well Agreement
is deleted in its entirety and there is inserted in its place the following new
definition:
"'S&P' shall mean Standard & Poor's Corporation. Any reference in
this Agreement to any specific rating by S&P is a reference to such
rating as currently defined by S&P and shall be deemed to refer to the
equivalent rating if such rating system changes. If S&P shall at any
time discontinue rating either the Series A Preferred Stock or the
Series B Preferred Stock and Xxxxx'x is not then rating such Preferred
Stock, then Xxxxxxx, Sachs & Co. for as long as the Series A Preferred
Stock shall remain outstanding and thereafter Xxxxxx Brothers Inc., or
its applicable successor, shall, within 30 days, select a nationally
recognized substitute rating agency and identify the comparable
ratings from such agency. During such 30 day period, S&P's rating
shall be considered to be the last rating S&P provided before it
discontinued rating the applicable Preferred Stock."
(h) Section 6(e) of the Keep Well Agreement is deleted in its
entirety and there is inserted in its place the following new Section 6(e):
"(e) Finance will maintain (and Fuji hereby undertakes to assure that
Finance will maintain) in full force and effect and available to it
unused short-term lines of credit, asset sales facilities and
committed credit facilities in its favor in an amount at all times
approximately equal to 75% of the amount of its commercial paper
(including Commercial Paper) from time to time outstanding; and"
(i) Section 8 of the Keep Well Agreement is amended by deleting each
reference therein to "December 31, 2002" and inserting in each such place the
phrase "the Termination Date."
(j) Section 8(e) of the Keep Well Agreement is deleted in its
entirety and there is inserted in its place the following new Section 8(e):
"(e)(1) Anything contained elsewhere herein to the contrary
notwithstanding, it is expressly understood and agreed that this
Agreement may not be terminated for any reason by either party hereto,
and shall continue in full force and effect, at any time while all or
any portion of the Series A Preferred Stock is outstanding and held by
third parties other than Fuji (or any direct or indirect wholly-owned
subsidiary of Fuji) unless Finance shall have first obtained from each
of the Rating Agencies a written certification that upon termination
of this Agreement the Series A Preferred Stock will be rated no lower
than the Series A Minimum Rating.
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(2) Anything contained elsewhere herein to the contrary
notwithstanding, it is expressly understood and agreed that this
Agreement may not be terminated for any reason by either party hereto,
and shall continue in full force and effect, at any time while all or
any portion of the Series B Preferred Stock is outstanding and held by
third parties other than Fuji (or any direct or indirect wholly-owned
subsidiary of Fuji) unless Finance shall have first obtained from each
of the Rating Agencies a written certification that upon termination
of this Agreement the Series B Preferred Stock will be rated no lower
than the Series B Minimum Rating.
(3) For purposes of the each of the foregoing clauses (1) and (2),
the Series A Preferred Stock or the Series B Preferred Stock shall
cease to be considered outstanding at such time as an effective notice
of redemption of all of such Preferred Stock shall have been given by
Finance and funds sufficient to effectuate such redemption shall have
been deposited with the party designated for such purpose in the
notice."
2. Consent by Fuji to Changes to NW Preferred Stock. Fuji hereby
consents to all of the changes to the terms of the NW Preferred Stock
contemplated by this Amendment and to any corresponding changes required to be
made to the certificate of incorporation of Finance or otherwise.
3. Miscellaneous.
(a) Governing Law. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York.
(b) Binding Effect; Successors. This Amendment shall be binding upon,
and inure to the benefit of, Fuji and Finance and their respective successors
and assigns.
(c) Continued Effectiveness. Except as expressly amended hereby, the
terms and conditions of the Keep Well Agreement remain in full force and effect.
(d) Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed to be an original, but all of such counterparts
shall together constitute but one and the same Amendment.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
THE FUJI BANK, LIMITED
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Its: Managing Director
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THE FUJI BANK, LIMITED, NEW YORK
BRANCH, as Obligor under Section 3 of the
Amended and Restated Keep Well Agreement
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Its: General Manager
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XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Its: Chairman
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