SECOND AMENDMENT TO NOTE PURCHASE AGREEMENTS
Exhibit 10.3
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS SECOND AMENDMENT, dated as of May 27, 2004 (this “Amendment”) to those certain separate
Note Purchase Agreements, each dated as of August 23, 2000 (as amended by that certain First
Amendment to Note Purchase Agreements, dated as of November 30, 2001, and as in effect immediately
prior to the effectiveness of this Amendment, collectively, the “Existing Note Purchase
Agreement”), among The X. X. Xxxxxxx Company, an Ohio corporation (the “Company”), and the
purchasers signatory thereto (together with their successors, transferees and assigns,
collectively, the “Noteholders”) pursuant to which the Company issued to the Noteholders its (i)
7.70% Series A Senior Notes due September 1, 2005 in the aggregate principal amount of $17,000,000,
(ii) 7.87% Series B Senior Notes due September 1, 2007 in the aggregate principal amount of
$33,000,000, and (iii) 7.94% Series C Senior Notes due September 1, 2010 in the aggregate principal
amount of $10,000,000 (collectively, the “Notes”).
RECITALS:
A. The Noteholders are the holders of all of the outstanding Notes.
B. Capitalized terms used herein shall have the respective meanings ascribed thereto in the
Existing Note Purchase Agreement unless herein defined or the context shall otherwise require.
C. The Company and the Noteholders now desire to amend the Existing Note Purchase Agreement in
the respects, but only in the respects, hereinafter set forth.
D. All requirements of law have been fully complied with and all other acts and things
necessary to make this Amendment a legal, valid and binding instrument according to its terms for
the purposes herein expressed have been done or performed.
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the Company and the Noteholders do hereby agree as follows:
1. AMENDMENTS.
1.1. Amendment to Section 7.1(a); Quarterly Statements.
Section 7.1(a) of the Existing Note Purchase Agreement is hereby amended by inserting in the
first line thereof the phrase “(or within 10 days after such earlier date as the Company’s
quarterly report is required to be filed with the U.S. Securities and Exchange Commission under the
Exchange Act, with written notice of such earlier filing to be delivered to each holder of Notes
simultaneously with such filing)” immediately following the phrase “within 90 days.”
1.2. Amendment to Section 7.1(b); Annual Statements.
Section 7.1(b) of the Existing Note Purchase Agreement is hereby amended by inserting in the
first line thereof the phrase “(or within 10 days after such earlier date as the Company’s annual
report is required to be filed with the U.S. Securities and Exchange Commission under
the Exchange Act, with written notice of such earlier filing to be delivered to each holder of Notes
simultaneously with such filing)” immediately following the phrase “within 120 days.”
1.3. Amendment to Section 7.1; Bank Credit Agreement.
Section 7.1 of the Existing Note Purchase Agreement is hereby amended by (i) deleting the
phrase “and” at the end of Section 7.1(e)(iii) thereof, (ii) inserting new clauses (f) and (g)
immediately following Section 7.1(e)(iii) to read in their entirety as follows:
“(f) Bank Credit Agreement — promptly, and in any event within five Business
Days of the execution thereof, a copy of the Bank Credit Agreement, certificated as true and
correct by a Responsible Officer;”
“(g) Acquisition — promptly, and in any event within five Business Days of the
consummation of the Acquisition, evidence that International Multifoods Corporation has been
merged with and into MIX and all of the property, real, personal and mixed, of International
Multifoods Corporation shall be vested in MIX; and”
and (iii) deleting in its entirety the existing Section 7.1(f) (“Requested Information”) and
inserting in its place the following:
“(h) Requested Information — with reasonable promptness and to the extent not
prohibited by applicable law, such other data and information relating to the business,
operations, affairs, financial condition, assets or properties of the Company or any of its
Subsidiaries or relating to the ability of any Obligor to perform its obligations under the
Financing Documents to which it is a party, as from time to time may be reasonably requested
by any such holder of Notes.”
1.4. Amendment to Section 9; Financial Covenant Standards.
Section 9 of the Existing Note Purchase Agreement is hereby amended by inserting a new Section
9.7 at the end thereof, to read in its entirety as follows:
“9.7 Financial Covenant Standards.
If at any time and from time to time after the Second Amendment Effective Date, the
Company enters into the Bank Credit Agreement or any modification thereof, and the Bank
Credit Agreement or such modification contains one or more Financial Covenants that are
either not contained in this Agreement or are contained in this Agreement but are more
favorable to the lender or lenders under the Bank Credit Agreement than are the terms of
this Agreement to the holders of the Notes, this Agreement shall, without any further action
on the part of the Company or any of the holders of the Notes, be deemed to be amended
automatically (effective simultaneously with the effectiveness of the Bank Credit Agreement
or such modification) to include each such additional or more favorable Financial Covenant,
unless the Required Holders provide written notice to the
Company to the contrary within 30 days after having received written notice from the
Company of the effectiveness of such additional or more favorable Financial Covenant (in
which event such Financial Covenant shall be deemed not to have been included in
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this Agreement at any time). No modification or amendment of the Bank Credit Agreement that
results in any Financial Covenant becoming less restrictive on the Company shall be
effective as a modification, amendment or waiver under this Agreement. The Company further
covenants promptly to execute and deliver at its expense (including, without limitation, the
fees and expenses of counsel for the holders of the Notes) an amendment to this Agreement in
form and substance satisfactory to the Required Holders to reflect such additional or more
favorable Financial Covenant, provided that the execution and delivery of such amendment
shall not be a precondition to the effectiveness of such additional or more favorable
Financial Covenant as provided for in this Section 9.7. The provisions of this Section 9.7
shall apply successively to each change in a Financial Covenant contained in the Bank Credit
Agreement.
“Financial Covenant” means any covenant or equivalent provision (including,
without limitation, any default or event of default provision and definitions of
defined terms used therein) requiring the Company:
(a) to maintain any level of financial performance (including, without
limitation, a specified level of net worth, total assets, cash flow or net
income),
(b) not to exceed any maximum level of indebtedness,
(c) to maintain any relationship of any component of its capital
structure to any other component thereof (including, without limitation, the
relationship of indebtedness, senior indebtedness or subordinated
indebtedness to total capitalization or to net worth), or
(d) to maintain any measure of its ability to service its indebtedness
(including, without limitation, falling below any specified ratio of
revenues, cash flow or net income to interest expense, rental expense,
capital expenditures and/or scheduled payments of indebtedness).”
1.5. Amendment to Section 10.2; Merger Consolidation, etc.
Section 10.2 of the Existing Note Purchase Agreement is hereby deleted in its entirety, and a
new Section 10.2 is hereby inserted in its place, to read as follows:
“10.2 Merger, Consolidation, etc.
The Company will not, and will not permit any Subsidiary Guarantor to, consolidate with
or merge with any other Person or convey, transfer or lease all or substantially all of its
assets in a single transaction or series of transactions to any Person unless:
(a) the successor formed by such consolidation or the survivor of such merger
or the Person that acquires by conveyance, transfer or lease substantially all of
the assets of the Company or such Subsidiary Guarantor, as the case may
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be, as an entirety (the “Survivor”), as the case may be, shall be a solvent corporation
organized and existing under the laws of the United States, any state thereof or the
District of Columbia, and, if the Company or such Subsidiary Guarantor is not the
Survivor, the Survivor shall have expressly assumed in writing the due and punctual
payment of the principal of and Make-Whole Amount, if any, and interest on all of
the Notes according to their tenor and the due and punctual performance and
observance of each covenant and condition of such Obligor under the applicable
Financing Documents, pursuant to such agreements and instruments as shall be
reasonably satisfactory to the Required Holders;
(b) to the extent the Company is not the Survivor of such transaction, each
Subsidiary Guarantor shall have executed and delivered to each holder of Notes its
reaffirmation of its obligations under its Guaranty Agreement in form and substance
reasonably satisfactory to the Required Holders; and
(c) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing.
No such conveyance, transfer or lease of all or substantially all of the assets of
either the Company or any Subsidiary Guarantor shall have the effect of releasing the
Company or any Subsidiary Guarantor, as applicable, or any Survivor that shall theretofore
have become such in the manner prescribed in this Section 10.2 from its liability under the
applicable Financing Documents.”
1.6. Amendment to Section 11(d); Events of Default.
Section 11(d) of the Existing Note Purchase Agreement is hereby deleted in its entirety, and a
new Section 11(d) is hereby inserted in its place, to read as follows:
“(d) any Obligor defaults in the performance of or compliance with any term contained
herein (other than those referred to in Section 11(a)), Section 11(b) or Section 11(c)) and
such default is not remedied within 30 days after the earlier of (i) a Responsible Officer
obtaining actual knowledge of such default and (ii) the Company receiving written notice of
such default from any holder of a Note (any such written notice to be identified as a
“notice of default” and to refer specifically to this Section 11(d)); or”
1.7. Amendment to Section 11(e); Events of Default.
Section 11(e) of the Existing Note Purchase Agreement is hereby deleted in its entirety, and a
new Section 11(e) is hereby inserted in its place, to read as follows:
“(e) any representation or warranty made in writing by or on behalf of any Obligor or
by any officer of such Obligor in any Financing Document or in any writing
furnished in connection with the transactions contemplated hereby proves to have been
false or incorrect in any material respect on the date as of which made; or”
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1.8. Amendment to Section 11; Events of Default.
Section 11 of the Existing Note Purchase Agreement is hereby amended by (i) deleting the
period at the end of Section 11(j) and inserting in its place the phrase “; or”, and (ii) inserting
a new paragraph (k) and a new paragraph (l) at the end of such Section 11, each to read in its
entirety as follows:
“(k) any Subsidiary Guarantor fails or neglects to observe, perform or comply
with any term, provision, condition or covenant contained in its respective Guaranty
Agreement; or
(l) any Guaranty Agreement is not or ceases to be effective against the
applicable Subsidiary Guarantor or is alleged by the Company or any Subsidiary
Guarantor to be ineffective against a Subsidiary Guarantor for any reason other than
in the event that the applicable Subsidiary Guarantor is merged with and into the
Company.”
1.9. Amendment to Section 12; Remedies on Default, etc.
Section 12 of the Existing Note Purchase Agreement is hereby amended by inserting a new
Section 12.5 at the end thereof, to read in its entirety as follows:
“12.5 Notice of Acceleration or Rescission.
Whenever any Note shall be declared immediately due and payable pursuant to Section
12.1 or any such declaration shall be rescinded or annulled pursuant to Section 12.3, the
Obligors shall forthwith give written notice thereof to the holders of each Note at the time
outstanding.”
1.10. Amendment to Section 15.1; Transaction Expenses.
Section 15.1 of the Existing Note Purchase Agreement is hereby deleted in its entirety, and a
new Section 15.1 is hereby inserted in its place, to read as follows:
“15.1 Transaction Expenses.
Whether or not the transactions contemplated hereby are consummated, the Company will
pay all out-of-pocket costs and expenses (including reasonable attorneys’ fees of a special
counsel and, if reasonably required, local or other counsel) incurred by you and each Other
Purchaser or holder of a Note in connection with such transactions and in connection with
any amendments, waivers or consents under or in respect of this Agreement, the Notes or any
Guaranty Agreement (whether or not such amendment, waiver or consent becomes effective),
including, without limitation: (a) the costs and expenses incurred in enforcing or defending
(or determining whether or how to enforce or defend) any rights under this Agreement, the
Notes or any Guaranty Agreement as
against any Obligor or in responding to any subpoena or other legal process or informal
investigative demand issued in connection with this Agreement, the Notes or any Guaranty
Agreement, or by reason of being a holder of any Note, and (b) the costs and
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expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy
of any Obligor or any Subsidiary or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Company will pay, and will save you
and each other holder of a Note harmless from, all claims in respect of any fees, costs or
expenses if any, of brokers and finders (other than those retained by you).”
1.11. Amendment to Section 17.2(b); Payment.
Section 17.2(b) of the Existing Note Purchase Agreement is hereby amended by (i) inserting the
phrase “or issue any guaranty” immediately following the phrase “or grant any security” in the
third line thereof, and (ii) inserting the phrase “or guaranty” immediately following the phrase
“or security” in the fifth line thereof.
1.12. Amendment to 20; Confidential Information.
Section 20(d)(viii)(D) of the Existing Note Purchase Agreement is hereby amended by inserting
the phrase “, any Guaranty Agreement” immediately preceding the phrase “and this Agreement” in the
last line thereof.
1.13. Amendments to Schedule B; Defined Terms.
Schedule B to the Existing Note Purchase Agreement is hereby amended by inserting the
following new definitions into such Schedule, each in their proper alphabetical order, to read as
follows:
(a) “Acquisition” means the acquisition by the Company of International Multifoods
Corporation pursuant to the Agreement and Plan of Merger, dated March 7, 2004, by and among
the Company, MIX and International Multifoods Corporation.
(b) “Agreement” is defined in Section 17.3.
(c) “Bank Credit Agreement” means that certain unsecured revolving credit facility by
and among the Company, Key Bank National Association, as Agent, and the lenders named
therein, to be entered into on or about June 17, 2004, as such agreement may be amended or
restated from time to time.
(d) “Financing Documents” means this Agreement, the Notes and any Guaranty Agreement,
as each may be amended, restated or otherwise modified from time to time, and all other
documents to be executed and/or delivered in favor of any holders of Notes, or all of them,
by the Company, any of its Subsidiaries, or any other Person in connection with this
Agreement.
(e) “Guaranty Agreement” means, collectively, (a) that certain guaranty agreement,
executed and delivered by MIX in favor of the holders of Notes on the
Second Amendment Effective Date, in form and substance satisfactory to the Required
Holders, and (b) any Guaranty executed and delivered in favor of the holders of Notes in
form and substance satisfactory to the Required Holders.
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(f) “MIX” means MIX Acquisition Corporation, a Delaware corporation and Wholly-Owned
Subsidiary of the Company.
(g) “1999 Note Agreement” means, collectively, those certain Note Purchase Agreements,
each dated as of June 16, 1999, among the Company and each of the Persons listed on Schedule
A thereto.
(h) “Obligor(s)” means, collectively, the Company and each Subsidiary Guarantor.
(i) “Second Amendment” means that certain Second Amendment to Note Purchase Agreement,
dated as of the Second Amendment Effective Date, among the Company and each of the holders
of Notes signatory thereto, amending certain provisions of this Agreement.
(j) “Second Amendment Effective Date” means the date upon which the Second Amendment is
executed and delivered by the Company and the holders of Notes and becomes effective
pursuant to the terms thereof.
(k) “Subsidiary Guarantor” means, collectively, MIX and any Subsidiary that has
executed and delivered to the holders of Notes a Guaranty Agreement together with an opinion
of counsel to such Subsidiary in form and substance satisfactory to the Required Holders,
evidence of proper corporate authorization and such other documents and instruments as may
be reasonably requested by the Required Holders.
(l) “2004 Note Agreement” means that certain Note Purchase Agreement, dated as of May
27, 2004, among the Company and each of the Persons listed on Schedule A thereto.
1.14. Amendment to Schedule B; Change in Control Definition.
The definition of “Change in Control” set forth in Schedule B to the Existing Note Purchase
Agreement is hereby deleted in its entirety, and a new definition is hereby inserted in its place,
to read as follows:
““Change in Control” means any of:
(a) (i) the failure of the Xxxxxxx Family to hold, in the aggregate, not
less than the greater of (A) 7.5% of the Special Voting Power of all classes
of Voting Stock of the Company and (B) not less than the amount of the
Special Voting Power of all classes of the Voting Stock of the Company
possessed by the Largest Other Shareholder, or
(ii) the failure of the Xxxxxxx Family to hold, in the aggregate, not
less than the greater of (A) 5% of the Ordinary Voting Power of all classes
of the Voting Stock of the Company and (B) not less than the amount of
Ordinary Voting Power of all classes of the Voting Stock of the Company
possessed by the Largest Other Shareholder; or
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(b) all or substantially all of the assets of the Company are sold or otherwise
transferred, in a single transaction or a series of related transactions, to any
person (as such term is used in section 13(d) and section 14(d)(2) of the Exchange
Act as in effect on the date of the Closing) or related persons constituting a group
(as such term is used in Rule 13d-5 under the Exchange Act as in effect on the date
of the Second Amendment Effective Date); or
(c) if, for any reason whatsoever, either Xxxxxxx X. Xxxxxxx or Xxxxxxx X.
Xxxxxxx (or both) shall fail to serve on the board of directors of the Company at
any time; provided, that if either Xxxxxxx X. Xxxxxxx or Xxxxxxx X. Xxxxxxx (but not
both) shall fail to serve on the board of directors of the Company at any time, then
with respect to this clause (c) only, it shall not be deemed to constitute a Change
of Control if such individual is replaced as a director of the Company within one
hundred twenty (120) days of such event by an individual reasonably satisfactory to
the Required Holders.”
1.15. Amendment to Schedule B; Material Adverse Effect.
The definition of “Material Adverse Effect” set forth in Schedule B to the Existing Note
Purchase Agreement is hereby deleted in its entirety, and a new definition is hereby inserted in
its place, to read as follows:
““Material Adverse Effect” means a material adverse effect on (a) the business,
operations, affairs, financial condition, assets or properties of the Company and its
Subsidiaries taken as a whole, (b) the ability of the Company to perform its obligations
under this Agreement and the Notes, (c) the ability of any Subsidiary Guarantor to perform
its obligations under its respective Guaranty Agreement or (d) the validity or
enforceability of this Agreement, the Notes or any Guaranty Agreement.”
1.16. Amendment to Schedule B; Priority Debt Definition.
The definition of “Priority Debt” set forth in Schedule B to the Existing Note Purchase
Agreement is hereby deleted in its entirety, and a new definition is hereby inserted in its place,
to read as follows:
““Priority Debt” means the sum of (a) all Debt of the Company secured by Liens
permitted by Section 10.7(g), (b) all Debt of Subsidiaries (other than (x) Debt held by the
Company or a Wholly-Owned Subsidiary or (y) Debt of MIX under the Guaranty Agreement
executed and delivered by MIX in favor of the holders of Notes on the Second Amendment
Effective Date and any Guaranty by a Subsidiary Guarantor of the Debt evidenced by (1) this
Agreement, (2) the Bank Credit Agreement, so long as such Debt is subject to an
intercreditor agreement in form and substance satisfactory to the
Required Holders, and so long as the holders of Notes have the benefit of such
intercreditor agreement with respect to such Debt, (3) the 1999 Note Agreement, and (4) the
2004 Note Agreement) and (c) Consolidated Attributable Debt.”
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1.17. Amendment to Schedule B; Significant Subsidiary Definition.
The definition of “Significant Subsidiary” set forth in Schedule B to the Existing Note
Purchase Agreement is hereby amended by deleting the period at the end of such definition, and
inserting in its place the phrase “; provided that each Subsidiary Guarantor shall at all times be
deemed a Significant Subsidiary.”
1.18. Amendment to Schedule B; Xxxxxxx Family Definition.
The definition of “Xxxxxxx Family” set forth in Schedule B to the Existing Note Purchase
Agreement is hereby amended by deleting the reference to “Xxxxxxxx X. Xxxxxxx,” in the first line
thereof.
2. NO OTHER MODIFICATIONS; CONFIRMATION.
All the provisions of the Notes, and, except as expressly amended, modified and supplemented
hereby, all the provisions of the Existing Note Purchase Agreement, are and shall remain in full
force and effect. As of the Effective Date (defined below), all references in the Notes to the
“Note Purchase Agreements” shall be references to the Existing Note Purchase Agreement, as modified
by this Amendment and as hereafter amended, modified or supplemented in accordance with its terms.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to execute and deliver this Amendment (which representations shall
survive such execution and delivery), the Company represents and warrants to the Noteholders that:
(a) the Company is a corporation duly organized, validly existing and in good standing
under the laws of the state of Ohio;
(b) the Subsidiary Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware;
(c) this Amendment and the Guaranty Agreement have been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantor, respectively, and this Amendment and
the Guaranty Agreement each constitutes a legal, valid and binding obligation, contract and
agreement of the Company and the Subsidiary Guarantor, respectively, enforceable against it
in accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles relating to
or limiting creditors’ rights generally;
(d) the Existing Note Purchase Agreement, as amended by this Amendment, constitutes the
legal, valid and binding obligation, contract and agreement of the Company enforceable
against it in accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles relating to
or limiting creditors’ rights generally;
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(e) the execution, delivery and performance by each of the Company and the Subsidiary
Guarantor of this Amendment and the Guaranty Agreement, respectively, (i) have been duly
authorized by all requisite corporate action and, if required, shareholder action, (ii) does
not require the consent or approval of any governmental or regulatory body or agency or
registration, filing or declaration with, any Governmental Authority, and (iii) will not (A)
violate (1) any provision of law, statute, rule or regulation or its certificate of
incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any
other agency or government binding upon it, or (3) any provision of any material indenture,
agreement or other instrument to which it is a party or by which its properties or assets
are or may be bound, or (B) result in a breach of or constitute (alone or with due notice or
lapse of time or both) a default under any indenture, agreement or other instrument referred
to in clause (iii)(A)(3) of this paragraph (e);
(f) as of the date hereof and after giving effect to this Amendment, no Default or
Event of Default has occurred which is continuing;
(g) neither the Company nor any Subsidiary (a) is or will become a blocked Person
described by section 1 of Executive Order 13224 of September 24, 2001, Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(31 CFR Part 595 et seq.) or (b) to the knowledge of the Company, engages or will engage in
any dealings or transactions, or is otherwise associated, with any such Person; and
(h) neither the Company nor any Subsidiary is in violation of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT ACT) Act of 2001 of the United States of America.
4. EFFECTIVENESS.
This Amendment shall become effective only upon the date of the satisfaction in full of the
following conditions precedent (which date shall be the “Effective Date”).
4.1. Execution and Delivery of this Amendment.
The Company shall have delivered to each Noteholder a counterpart hereof, duly executed and
delivered by the Company and each of the Noteholders.
4.2. Representations and Warranties.
The representations and warranties of the Company made in Section 3 of this Amendment and of
the Subsidiary Guarantor in the Guaranty Agreement shall remain true and correct in all respects as
of the Effective Date.
4.3. No Injunction, Etc.
No injunction, writ, restraining order or other order of any nature prohibiting, directly or
indirectly, the consummation of the transactions contemplated herein shall have been issued and
remain in force by any Governmental Authority.
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4.4. Guaranty Agreement.
MIX Acquisition Corporation, a Delaware corporation and Wholly-Owned Subsidiary of the Company
(the “Subsidiary Guarantor”), shall have executed and delivered to each Noteholder a guaranty
agreement (as may be amended, restated or modified from time to time, the “Guaranty Agreement”) in
respect of the obligations evidenced by the Existing Note Purchase Agreement and the Notes, in form
and substance satisfactory to each Noteholder.
4.5. Subsidiary Guarantor Secretary’s Certificate.
The Subsidiary Guarantor shall have delivered to each Noteholder a certificate of an officer
of the Subsidiary Guarantor certifying as to the resolutions attached thereto and other corporate
or other proceedings relating to the authorization, execution and delivery by the Subsidiary
Guarantor of the Guaranty Agreement.
4.6. Opinion of Counsel.
Each Noteholder shall have received a legal opinion in form and substance satisfactory to it,
dated the Effective Date, from M. Xxx Xxxxxx, counsel for the Company and the Subsidiary Guarantor,
with respect to the due authorization and enforceability of each of this Amendment and the Guaranty
Agreement.
4.7. Amendment to 1999 Note Purchase Agreement.
The Company shall have delivered to the Noteholders a fully executed copy of that certain
Second Amendment to Note Purchase Agreement, dated as of May 27, 2004, by and among the Company and
each of the Persons signatory thereto with respect to those certain separate Note Purchase
Agreements, each dated as of June 16, 1999, together with each of the other instruments and
agreements executed and/or delivered in connection therewith, each certified as true and correct by
a Responsible Officer.
4.8. 2004 Note Purchase Agreement.
The Company shall have delivered to the Noteholders a fully executed copy of that certain Note
Purchase Agreement, dated as of May 27, 2004, by and among the Company and each of the Persons
listed on Schedule A thereto, pursuant to which the Company has issued to such Persons its 4.78%
Senior Notes due May 27, 2014 in the aggregate principal amount of $100,000,000, together with each
of the other instruments and agreements executed and/or delivered in connection therewith, each
certified as true and correct by a Responsible Officer.
4.9. Payment of Special Counsel Fees.
The Company shall have paid on or before the Effective Date the reasonable fees, charges and
disbursements of Xxxxxxx XxXxxxxxx LLP, the Noteholders’ special counsel, to the extent reflected
in a statement of such counsel rendered to the Company at least one Business Day prior to the
Effective Date.
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5. MISCELLANEOUS.
5.1. This Amendment constitutes a contract between the Company and the Noteholders for the
uses and purposes hereinabove set forth, and may be executed in any number of counterparts, each
executed counterpart constituting an original, but all together only one agreement.
5.2. Whenever any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party, and all the promises and agreements contained in
this Amendment by or on behalf of the Company and the Noteholders shall bind and inure to the
benefit of the respective successors and assigns of such parties, whether so expressed or not.
5.3. This Amendment constitutes the final written expression of all of the terms hereof and is
a complete and exclusive statement of those terms.
5.4. This Amendment shall be governed by and construed in accordance with the internal laws of
the state of New York.
5.5. This Amendment shall become effective in accordance with the provisions of Section 4 of
this Amendment.
[Remainder of page intentionally left blank. Next page is signature page.]
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IN WITNESS WHEREOF, the parties hereto have caused the execution of this Amendment by
duly authorized officers of each as of the date hereof.
| THE X. X. XXXXXXX COMPANY | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
[Signature Page to Second Amendment to Note Purchase Agreements (2000)]
Accepted and Agreed to:
| THE TRAVELERS INSURANCE COMPANY | ||||
By:
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/s/ Xxxxxx X. Xxxxxx | |||
Name:
|
||||
Title:
|
Investment Officer | |||
| THE TRAVELERS LIFE AND ANNUITY COMPANY | ||||
By:
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/s/ Xxxxxx X. Xxxxxx | |||
Name:
|
||||
Title:
|
Investment Officer | |||
[Signature Page to Second Amendment to Note Purchase Agreements (2000)]
| PREMIER INSURANCE COMPANY OF MASSACHUSETTS | ||||
By:
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/s/ Xxxxx X. Xxxxxxx | |||
Name:
|
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Title:
|
Vice President, Fixed Income Investments | |||
| FIRST TRENTON INDEMNITY COMPANY | ||||
By:
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/s/ Xxxxx X. Xxxxxxx | |||
Name:
|
||||
Title:
|
Vice President, Fixed Income Investments | |||
[Signature Page to Second Amendment to Note Purchase Agreements (2000)]
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
| By: | CIGNA Investments, Inc. (authorized agent) |
| By: | /s/ Xxxxx X. Height | |||||
| Name: | ||||||
| Title: | Managing Director |
[Signature Page to Second Amendment to Note Purchase Agreements (2000)]
MINNESOTA LIFE INSURANCE COMPANY
| By: | Advantus Capital Management, Inc. |
By:
|
/s/ Xxxxxxxxxxx X. Xxxxxx | |||
Name:
|
||||
Title:
|
Senior Vice President | |||
| EQUITRUST LIFE INSURANCE COMPANY | ||||
| (formerly held by NATIONAL TRAVELERS LIFE COMPANY) | ||||
By:
|
Advantus Capital Management, Inc. | |||
By:
|
/s/ Xxxxxxxxxxx X. Xxxxxx | |||
Name:
|
||||
Title:
|
Senior Vice President | |||
| AMERICAN REPUBLIC INSURANCE COMPANY | ||||
By:
|
Advantus Capital Management, Inc. | |||
By:
|
/s/ Xxxxxxxxxxx X. Xxxxxx | |||
Name:
|
||||
Title:
|
Senior Vice President | |||
[Signature Page to Second Amendment to Note Purchase Agreements (2000)]
HARTFORD LIFE INSURANCE COMPANY
| By: | Hartford Investment Services, Inc., its Agent and Attorney-in-Fact |
By:
|
/s/ Xxxxxx X. Xxxxxx | |||
Name:
|
||||
Title:
|
Managing Director |
[Signature Page to Second Amendment to Note Purchase Agreements (2000)]
| NATIONWIDE MUTUAL FIRE INSURANCE COMPANY | ||||
By:
|
/s/ Xxxxxx X. Xxxxx | |||
Name:
|
||||
Title:
|
Authorized Signatory | |||
[Signature Page to Second Amendment to Note Purchase Agreements (2000)]
| MODERN WOODMEN OF AMERICA | ||||
By:
|
/s/ Xxxx X. Coin | |||
Name:
|
||||
Title:
|
Treasurer and Investment Manager | |||
[Signature Page to Second Amendment to Note Purchase Agreements (2000)]
