Letter Agreement EXHIBIT (4h)
January 31, 2002
Reference is hereby made to (i) that certain Note Agreement dated as of
December 7, 1995 between Xxxxxxx Corporation (the "Borrower") and The Prudential
Insurance Company of America ("Prudential"), as amended to the date hereof
pursuant to various amendment agreements (the "1995 Prudential Agreement"), and
the Note Agreement dated as of August 28, 1997, between the Borrower and
Prudential, as amended to the date hereof pursuant to various amendment
agreements (the "1997 Prudential Agreement" and, together with the 1995
Prudential Agreement, the "Prudential Agreements"); (ii) (a) that certain Note
Agreement dated as of December 1, 1992 between the Borrower and Teachers
Insurance and Annuity Association of America, (b) that certain Note Agreement
dated as of December 1, 1992 between the Borrower and AllState Life Insurance
Company, (c) that certain Note Agreement dated as of December 1, 1992 between
the Borrower and Connecticut General Life Insurance Company, and (d) that
certain Note Agreement dated as of December 1, 1992 between the Borrower and
Connecticut General Life Insurance Company on behalf of one or more separate
accounts, each relating to the Borrower's Senior Notes due August 31, 2002, and
originally issued in the aggregate principal amount of $75,000,000, each as
amended to the date hereof pursuant to various amendment agreements
(collectively, the "1992 Agreements" and the lenders thereunder (including
Prudential as an assignee of notes originally issued under the 1992 Agreements)
hereinafter collectively referred to as the "1992 Noteholders"); (iii) that
certain Amended and Restated Term Loan/Bankers' Acceptance Agreement dated as of
January 31, 2002, as amended to the date hereof pursuant to various amendment
agreements (the "SunTrust Loan Agreement"), between the Borrower and SunTrust
Bank ("SunTrust") and (iv) that certain Amended and Restated Credit Agreement
dated as of January 31, 2002, as amended to the date hereof pursuant to various
amendment agreements (the "1999 Credit Agreement"), by and among the Borrower,
Xxxxxxx Europe Limited ("Xxxxxxx Europe"), the banks listed therein (the
"Revolver Banks"), Wachovia Bank, N.A., as Administrative Agent, SunTrust Bank,
as Syndication Agent, and First Union National Bank, as Documentation Agent.
Prudential, the 1992 Noteholders, SunTrust and the Revolver Banks
(together with the Administrative Agent, Syndication Agent, and Documentation
Agent under the 1999 Credit Agreement) are sometimes herein collectively
referred to as the "Lenders"; Prudential, SunTrust, the Required Banks (as such
term is defined in the 1999 Credit Agreement) and 1992 Noteholders together
holding 662/3% or more of the aggregate principal amount of the notes issued
under the 1992 Agreements shall together constitute the "Required Lenders". The
Prudential Agreements, the 1992 Agreements, the SunTrust Loan Agreement and the
1999 Credit Agreement are sometimes herein collectively referred to as the
"Agreements." Terms not otherwise defined herein shall have the meanings given
to such terms in the applicable Agreement unless the context clearly otherwise
requires.
Pursuant to the Memorandum of Understanding, dated as of January 18,
2002, among the Borrower and the Lenders, the Borrower hereby agrees as follows:
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1. Ticking Fees. In addition to all the fees payable by the
Borrower under the Agreements, the Borrower shall pay a ticking fee (the
"Ticking Fee") (i) to the Administrative Agent, for the ratable account of the
Revolver Banks, in an amount equal to 0.25% of the Aggregate Commitments (as
defined in the 1999 Credit Agreement), (ii) to SunTrust in an amount equal to
0.25% of the outstanding loans under the SunTrust Loan Agreement, (iii) to
Prudential in an amount equal to 0.25% of the principal amount of the notes
outstanding under each of the Prudential Agreements and (iv) to the 1992
Noteholders in an amount equal to 0.25% of the principal amount of the notes
outstanding under the 1992 Agreements, on April 30, 2002 and on each July 31,
October 31, January 31 and April 30 thereafter, in each case if by such date the
Borrower has not consummated the offering of the High Yield Notes (as defined in
each of the Agreements) in an aggregate principal amount of at least
$150,000,000. Any failure on the part of the Borrower to comply with this
paragraph 1 shall constitute (after the expiration of the applicable grace
period) an Event of Default under (i) Section 6.01(a) of the 1999 Credit
Agreement, (ii) Section 8.01(a) of the SunTrust Loan Agreement, (iii) Section
6.1(c) of each of the Prudential Agreements provided such default shall continue
for more than 5 Business Days and (iv) Section 6.1(c) of each of the 1992 Note
Agreements provided such default shall continue for more than 5 Business Days.
2. Cash Flow Models. In addition to the information reporting
obligations of the Borrower pursuant to the Agreements, the Borrower shall
deliver to the Lenders, on a weekly basis, 13-week cash flow projections in form
reasonably acceptable to the Required Lenders; it being understood, however,
that each weekly projection delivered hereunder shall cover projected cash flow
for the 13-week period commencing two weeks prior to the date of delivery of
each such projection. Any failure on the part of the Borrower to comply with
this paragraph 2 shall constitute (after the expiration of the applicable grace
period) an Event of Default under (i) Section 6.01(c) of the 1999 Credit
Agreement, (ii) Section 8.01(d) of the SunTrust Loan Agreement, (iii) Section
6.1(f) of each of the Prudential Agreements, and (iv) Section 6.1(f) of each of
the 1992 Note Agreements.
3. Primary Deposit Accounts. The Borrower agrees to keep and
maintain each of its primary bank depository accounts at one or more of the
Revolver Banks. Any failure on the part of the Borrower to comply with this
paragraph 3 shall constitute (after the expiration of the applicable grace
period) an Event of Default under Section 6.01(c) of the 1999 Credit Agreement.
4. Good Faith Negotiations. In connection with the proposed
offering of High-Yield Notes (as defined in each of the Agreements) by the
Borrower, the parties hereto agree to enter into good faith negotiations to
further amend the Agreements to, among other things, (i) reset the financial
covenants and acquisitions/investment covenants, (ii) address flexibility on
dividends and treasury stock purchases and (iii) address the capital
expenditures covenant.
5. Conditions to Effectiveness. This Letter Agreement shall be
effective as of the date first written above upon delivery of counterparts of
this Letter Agreement which have been executed by the Borrower, Xxxxxxx Europe
and the Lenders party hereto.
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6. Counterparts; Facsimile Transmissions. This Letter Agreement
may be executed in any number of counterparts, each of which shall be an
original and all of which taken together shall constitute one and the same
Letter Agreement. Any signature delivered by a party by facsimile transmission
shall be deemed to be an original signature hereto.
7. Governing Law. This Letter Agreement shall be governed by and
construed in accordance with the internal laws of the State of Georgia.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have caused this Letter Agreement
to be duly executed, under seal, and delivered by their respective duly
authorized officers on the date first above written.
XXXXXXX CORPORATION
By:
--------------------------------------
Name:
Title:
Accepted and Agreed:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:
-----------------------------
Name:
Title:
SUNTRUST BANK
By:
-----------------------------
Name:
Title:
WACHOVIA BANK, N.A.
as Administrative Agent and as a
Revolver Bank
By:
-----------------------------
Name:
Title:
TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF AMERICA
By:
-----------------------------
Name:
Title:
5
ALLSTATE LIFE INSURANCE COMPANY
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
BY: CIGNA INVESTMENTS, INC.
By:
----------------------------
Name:
Title:
SUNTRUST BANK,
as a Revolver Bank
By:
----------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
as a Revolver Bank
By:
----------------------------
Name:
Title:
AMSOUTH BANK,
as a Revolver Bank
By:
----------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as a Revolver Bank
By:
----------------------------
Name:
Title:
ALIANT BANK,
as a Revolver Bank
By:
----------------------------
Name:
Title:
COMERICA BANK
as a Revolver Bank
By:
----------------------------
Name:
Title:
