EXHIBIT 10.1
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XXXXX CORPORATION
XXXXX WORLDWIDE, INC.
TRICOR DIRECT, INC.
FIRST SUPPLEMENT TO NOTE PURCHASE AGREEMENT
Dated as of February 14, 2006
Re: $200,000,000 5.30% Series 2006-A Senior Notes
Due February 14, 2016
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XXXXX CORPORATION
XXXXX WORLDWIDE, INC.
TRICOR DIRECT, INC.
0000 XXXX XXXX XXXX XXXX
XXXXXXXXX, XX 00000
Dated as of
February 14, 2006
To the Purchaser(s) named in
Schedule A hereto
Ladies and Gentlemen:
This First Supplement to Note Purchase Agreement (this "Supplement") is
among each of XXXXX CORPORATION, a Wisconsin corporation (the "Company"), Xxxxx
Worldwide, Inc., a Wisconsin corporation ("Xxxxx Worldwide"), and Tricor Direct,
Inc., a Delaware corporation ("Tricor Direct" and, together with the Company and
Xxxxx Worldwide, the "Obligors"), and the institutional investors named on
Schedule A attached hereto (the "Purchasers").
Reference is hereby made to that certain Note Purchase Agreement dated as
of June 28, 2004 (the "Note Purchase Agreement") among the Obligors and the
purchasers listed on Schedule A thereto. All capitalized terms not otherwise
defined herein shall have the same meaning as specified in the Note Purchase
Agreement. Reference is further made to Section 4.12 of the Note Purchase
Agreement which requires that, prior to the delivery of any Additional Notes,
the Obligors and each Additional Purchaser shall execute and deliver a
Supplement.
The Company hereby agrees with the Purchaser(s) as follows:
1. The Obligors have authorized the issue and sale of $200,000,000
aggregate principal amount of 5.30% Series 2006-A Senior Notes due February 14,
2016 (the "Series 2006-A Notes"). The Series 2006-A Notes, together with the
Series 2004-A Notes initially issued pursuant to the Note Purchase Agreement and
each series of Additional Notes which may from time to time hereafter be issued
pursuant to the provisions of Section 2.2 of the Note Purchase Agreement, are
collectively referred to as the "Notes" (such term shall also include any such
notes issued in substitution therefor pursuant to Section 13 of the Note
Purchase Agreement). The Series 2006-A Notes shall be substantially in the form
set out in Exhibit 1 hereto with such changes therefrom, if any, as may be
approved by the Purchaser(s) and the Obligors.
2. Subject to the terms and conditions hereof and as set forth in the Note
Purchase Agreement and on the basis of the representations and warranties
hereinafter set forth, the Obligors agree to issue and sell to each Purchaser,
and each Purchaser agrees to purchase from
the Obligors, Series 2006-A Notes in the principal amount set forth opposite
such Purchaser's name on Schedule A hereto at a price of 100% of the principal
amount thereof on the Closing Date hereinafter defined.
3. The sale and purchase of the Series 2006-A Notes to be purchased by
each Purchaser shall occur at the offices of Xxxxxxx and Xxxxxx LLP, 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, at 10:00 A.M. Chicago time, at a closing
(the "Closing") on February 14, 2006 or on such other Business Day thereafter on
or prior to February 21, 2006 as may be agreed upon by the Obligors and the
Purchasers (the "Closing Date"). At the Closing, the Obligors will deliver to
each Purchaser the Series 2006-A Notes to be purchased by such Purchaser in the
form of a single Series 2006-A Note (or such greater number of Series 2006-A
Notes in denominations of at least $100,000 as such Purchaser may request) dated
the Closing Date and registered in such Purchaser's name (or in the name of such
Purchaser's nominee), against delivery by such Purchaser to the Obligors or its
order of immediately available funds for the benefit of the Obligors to Account
Number 00000000, at M&I Bank, Milwaukee, Wisconsin, ABA Number 000000000, in the
Account Name of "Xxxxx Corporation." If, at the Closing, the Obligors shall fail
to tender such Series 2006-A Notes to any Purchaser as provided above in this
Section 3, or any of the conditions specified in Section 4 shall not have been
fulfilled to any Purchaser's satisfaction, such Purchaser shall, at such
Purchaser's election, be relieved of all further obligations under this
Supplement, without thereby waiving any rights such Purchaser may have by reason
of such failure or such nonfulfillment.
4. The obligation of each Purchaser to purchase and pay for the Series
2006-A Notes to be sold to such Purchaser at the Closing is subject to the
fulfillment to such Purchaser's satisfaction, prior to the Closing, of the
conditions set forth in Sections 2.2 and 4 of the Note Purchase Agreement (other
than Sections 4.1 and 4.13 thereof) with respect to the Series 2006-A Notes to
be purchased at the Closing with the same force and effect as if each reference
to "Series 2004-A Notes" (or words of similar import) set forth therein (and in
the related Exhibits) was modified to refer the "Series 2006-A Notes" (or words
of similar import) and each reference to "this Agreement" (or words of similar
import) therein was modified to refer to the Note Purchase Agreement as
supplemented by this Supplement and each reference to the "Closing Date" therein
was modified to refer to the "Closing Date" as defined herein, and to the
following additional conditions:
(a) Except as supplemented, amended or superceded by the
representations and warranties set forth in Exhibit A hereto, each of the
representations and warranties of the Obligors set forth in Section 5 of
the Note Purchase Agreement shall be correct as of the Closing Date and
the Obligors shall have delivered to each Purchaser an Officer's
Certificate, dated the Closing Date certifying that such condition has
been fulfilled.
(b) Each of the representations and warranties of the Subsidiary
Guarantors in the Subsidiary Guaranty shall be correct as of the Closing
Date and the Subsidiary Guarantors shall have delivered to each Purchaser
an Officer's Certificate, dated the Closing Date certifying that such
condition has been fulfilled.
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(c) Contemporaneously with the Closing, the Obligors shall sell to
each Purchaser, and each Purchaser shall purchase, the Series 2006-A Notes
to be purchased by such Purchaser at the Closing as specified in Schedule
A.
(d) Each Purchaser shall have received evidence, in form and
substance satisfactory to it, of the consent of CT Corporation System in
New York, New York to the appointment and designation provided for by
Section 23 of the Note Purchase Agreement for the period from the Closing
Date through February 14, 2017 (and the prepayment in full of all fees in
respect thereof).
5. On February 14, 2010 and on each February 14 thereafter to and
including February 14, 2015, the Obligors will prepay $28,571,429 principal
amount (or such lesser principal amount as shall then be outstanding) of the
Series 2006-A Notes at par and without payment of Make-Whole Amount or any other
premium. The entire unpaid principal amount of the Series 2006-A Notes shall
become due and payable on February 14, 2016.
Upon any partial prepayment of the Series 2006-A Notes pursuant to Section
8.2 of the Note Purchase Agreement or partial purchase thereof pursuant to
Section 8.5 of the Note Purchase Agreement, the principal amount of each
required prepayment of the Series 2006-A Notes becoming due under this Section 5
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 Series 2006-A
Notes is reduced as a result of such prepayment or purchase.
6. The term "Make-Whole Amount" means with respect to a Series 2006-A Note
an amount equal to the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of the Series 2006-A
Note, over the amount of such Called Principal, provided that the Make-Whole
Amount may in no event be less than zero. For the purposes of determining the
Make-Whole Amount, the following terms have the following meanings:
"Called Principal" means, with respect to a Series 2006-A Note, the
principal of the Series 2006-A Note that is to be prepaid pursuant to
Section 8.2 of the Note Purchase Agreement or has become or is declared to
be immediately due and payable pursuant to Section 12.1 of the Note
Purchase Agreement, as the context requires.
"Discounted Value" means, with respect to the Called Principal of a
Series 2006-A Note, the amount obtained by discounting all Remaining
Scheduled Payments with respect to such Called Principal from their
respective scheduled due dates to the Settlement Date with respect to such
Called Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which
interest on the Series 2006-A Note is payable) equal to the Reinvestment
Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of
a Series 2006-A Note, 0.50% plus the yield to maturity implied by (i) the
yields reported, as of 10:00 A.M. (New York City time) on the second
Business Day preceding the
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Settlement Date with respect to such Called Principal, on the display
designated as "PX-1" on the Bloomberg Financial Market Screen (or such
other display as may replace such display) for actively traded U.S.
Treasury securities having a maturity equal to the Remaining Average Life
of such Called Principal as of such Settlement Date, or (ii) if such
yields are not reported as of such time or the yields reported as of such
time are not ascertainable, the Treasury Constant Maturity Series Yields
reported, for the latest day for which such yields have been so reported
as of the second Business Day preceding the Settlement Date with respect
to such Called Principal, in Federal Reserve Statistical Release H.15
(519) (or any comparable successor publication) for actively traded U.S.
Treasury securities having a constant maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date. Such
implied yield will be determined, if necessary, by (a) converting U.S.
Treasury xxxx quotations to bond-equivalent yields in accordance with
accepted financial practice and (b) interpolating linearly on a straight
line basis between (1) the actively traded U.S. Treasury security with the
maturity closest to and greater than the Remaining Average Life and (2)
the actively traded U.S. Treasury security with the maturity closest to
and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called
Principal, the number of years (calculated to the nearest one-twelfth
year) obtained by dividing (i) such Called Principal into (ii) the sum of
the products obtained by multiplying (a) the principal component of each
Remaining Scheduled Payment with respect to such Called Principal by (b)
the number of years (calculated to the nearest one-twelfth year) that will
elapse between the Settlement Date with respect to such Called Principal
and the scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called
Principal of a Series 2006-A Note, all payments of such Called Principal
and interest thereon that would be due after the Settlement Date with
respect to such Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be
made under the terms of the Series 2006-A Note, then the amount of the
next succeeding scheduled interest payment will be reduced by the amount
of interest accrued to such Settlement Date and required to be paid on
such Settlement Date pursuant to Section 8.2 or 12.1 of the Note Purchase
Agreement.
"Settlement Date" means, with respect to the Called Principal of a
Series 2006-A Note, the date on which such Called Principal is to be
prepaid pursuant to Section 8.2 of the Note Purchase Agreement or has
become or is declared to be immediately due and payable pursuant to
Section 12.1 of the Note Purchase Agreement, as the context requires.
8. Each Purchaser represents and warrants that the representations and
warranties set forth in Section 6 of the Note Purchase Agreement are true and
correct on the date hereof with respect to the purchase of the Series 2006-A
Notes by such Purchaser.
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9. The Obligors and each Purchaser agree to be bound by and comply with
the terms and provisions of the Note Purchase Agreement as fully and completely
as if such Purchaser were an original signatory to the Note Purchase Agreement.
The execution hereof shall constitute a contract between the Obligors and
the Purchaser(s) for the uses and purposes hereinabove set forth, and this
Supplement may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one agreement.
XXXXX CORPORATION
By /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
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Title: Vice President & Chief
Financial Officer
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XXXXX WORLDWIDE, INC.
By /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
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Title: Vice President
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TRICOR DIRECT, INC.
By /s/ Xxxxxxx X. Bolens
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Name: Xxxxxxx X. Bolens
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Title: Vice President
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