EXHIBIT 4(i)
AMENDMENT NO. 1 TO NOTE AGREEMENT
AMENDMENT NO. 1 to NOTE AGREEMENT (this "Amendment") dated as of
October 30, 1998, by and among FRI-MRD Corporation, a Delaware corporation (the
"Company"), each Purchaser identified on the signature pages hereto and IBJ-
XXXXXXXX BANK & TRUST COMPANY, as agent for the Purchasers (in such capacity,
the "Agent").
W I T N E S S E T H:
-------------------
WHEREAS, the Company and certain of the Purchasers have entered into
the Note Agreement, dated as of June 9, 1998 (the "Note Agreement"; capitalized
terms used herein without being defined herein shall have the meanings
ascribed to such terms in the Note Agreement), relating to the Company's
$24,000,000 aggregate principal amount of 14% Senior Secured Discount Notes due
January 24, 2002;
WHEREAS, the Purchasers desire to appoint IBJ-Xxxxxxxx Bank & Trust
Company as Agent, pursuant to Section 8.8 of the Note Agreement;
WHEREAS, the Company agrees to the appointment by the Purchasers of
IBJ-Xxxxxxxx Bank & Trust Company, as Agent;
WHEREAS, the Company desires to appoint IBJ-Xxxxxxxx Bank & Trust
Company as Paying Agent and Note Registrar;
WHEREAS, the Company and the Agent acknowledge and agree than each of
the Purchasers identified in Schedule I hereto shall constitute, and have the
rights and obligations of, the Purchasers under the Note Agreement;
WHEREAS, certain of the parties to the Note Agreement specified herein
acknowledge and agree that such parties no longer have any rights or obligations
thereunder, upon the effectiveness of this Amendment;
WHEREAS, the Purchasers agree to purchase all of the Notes to be
issued under the Note Agreement, subject to the satisfaction of the conditions
set forth in section 4 of the Note Agreement; and
WHEREAS, the parties hereto agree to amend the Note Agreement as
provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendments to Note Agreement. (a) Section 7.1 of the Note
----------------------------
Agreement is hereby amended by inserting the following at the end of such
Section:
"Notwithstanding the foregoing, any amendment which affects the Agent,
the Paying Agent or the Note Registrar, as the case may be, shall
require the consent (which shall not unreasonably be withheld) of the
Agent, Paying Agent, or the Note Registrar, as the case may be."
(b) Section 8.5(c) of the Note Agreement is hereby amended by deleting
the word "Agent" contained in the penultimate sentence thereof and inserting the
word "Company" in replacement therefor.
(c) Section 8.8 of the Note Agreement is hereby amend by deleting the
second sentence thereof and inserting the following in replacement therefor:
"The Agent shall act in accordance with the instructions of the
Purchasers holding in excess of 50% of the Accreted Value of the
Notes; provided that the Agent shall not be required to take any
actions hereunder in the absence of instructions from Purchasers
holding in excess of 50% of the Accreted Value of the Notes."
(d) Section 8.9 of the Note Agreement shall be amended by
inserting the following in replacement therefor:
"Section 8.9. Duties of Agent. Agent shall be required to exercise
the reasonable care which a secured party would customarily exercise
with respect to the Pledged
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Collateral in its possession, in its capacity as a secured party. The
Agent makes no representation or warranty as to the value or condition
of the Pledged Collateral and has no obligation to ensure compliance
by the Company of its obligations with respect to the Pledged
Collateral."
(e) Section 8 of the Note Agreement is hereby amended by
inserting the following as Sections 8.11 and 8.12 thereof:
"Section 8.11 Indemnification of Agent.
(a) The Company agrees to indemnify the Agent, the Paying Agent, the
Note Registrar and each of their respective directors, officers, employees and
agents (each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of or as a result of
any claim, litigation, investigation or proceeding (whether or not an
Indemnitee is a party thereto) relating to the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby or the
performance by the parties hereto of their respective obligations hereunder;
provided that such indemnity shall not be available to the extent that such
losses, claims, damages, liabilities or related expenses result from or arise
out of the gross negligence or wilful misconduct of any Indemnitee.
(b) To the extent (x) the same shall not have been reimbursed by the
Company (and the Agent shall have utilized reasonable efforts to seek such
reimbursement from the Company) and (y) such claims, damages, liabilities and
related expenses relate to actions taken by the Agent in accordance with this
Agreement or that have been authorized by the Purchasers in accordance with
this Agreement, each Purchaser agrees to indemnify the Agent and each of its
directors, officers, employees and agents (each such person being called an
"Agent Indemnitee") against, and to hold each Agent Indemnitee harmless from, in
the amount of its pro rata share (based on the Accreted Value of Notes held by
such Purchaser), any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees, charges and disbursements, incurred
by or asserted against any Agent Indemnitee arising out of or as a result of any
claim, litigation, investigation or proceeding (whether or not an Agent
Indemnitee is a party thereto) relating to the execution or delivery of this
Agreement or any agreement or
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instrument contemplated hereby or the performance by the parties hereto of their
respective obligations hereunder; provided that such indemnity shall not be
available to the extent that such losses, claims, damages, liabilities and
related expenses result from or arise out of the gross negligence or wilful
misconduct of any Agent Indemnitee.
(c) The indemnities set forth in this Section 8.11 shall survive
termination of this Agreement and shall be applicable to any Agent, Paying Agent
and Note Registrar following the resignation or removal of such Agent, Paying
Agent and Note Registrar with respect to actions taken by such Agent prior to
such resignation or removal.
Section 8.12 Resignation and Removal of the Agent.
(a) The Agent may resign from the performance of its functions and
duties hereunder at any time by giving 30 days' prior written notice to the
Purchasers. Such resignation shall take effect upon the appointment of a
successor Agent pursuant to clause (b) below. The Agent may be removed at any
time by the affirmative vote of Purchasers holding at least 50% in aggregate
Accreted Value of the outstanding Notes.
(b) Upon any such notice of resignation or removal, Purchasers holding
at least 50% in aggregate Accreted Value of the outstanding Notes shall appoint
a successor Agent hereunder; provided that such Agent shall be subject to prior
written approval of the Company (which shall not unreasonably be withheld). If
no successor Agent has been appointed within 30 days of the Agent's resignation,
the resigning Agent may appoint a successor Agent. Upon the appointment of a
successor Agent, the resigning or removed Agent shall transfer and assign all
Pledged Collateral in its possession to the successor Agent. Any such successor
Agent shall agree to be bound by the provisions of this Agreement."
(f) Section 9.1 of the Note Agreement is hereby amended by:
(i) replacing the definition of "Business Day" with the
following:
""Business Day" shall mean any day other than a Saturday, Sunday,
statutory holiday or other day on which banks in Los Angeles,
California or New York, New
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York are required by law to close or are customarily closed."; and
(ii) inserting the following in appropriate alphabetical
order:
""Paying Agent" shall have the meaning provided under Section 10.12
herein."
(g) Section 10.1 of the Note Agreement is hereby amended by deleting
the first paragraph thereof and inserting the following in replacement therefor:
"The Company may appoint one or more Note Registrars and may
itself act as Note Registrar. The term "Note Registrar" includes any
such Note Registrars. The Company hereby appoints IBJ-Xxxxxxxx Bank
& Trust Company to act as the initial Note Registrar. The Company
may change or terminate any Note Registrar at any time. The Note
Registrar shall cause to be kept a register (the "Note Register") for
the registration and transfer of the Notes. The Note Registrar will
register or transfer or cause to be registered or transferred, as
hereinafter provided and under such reasonable regulations as it may
prescribe, any Note issued pursuant to this Agreement."
(h) Section 10 of the Note Agreement is further amended by inserting
the following as Section 10.12 thereof:
"Section 10.12. Paying Agent. The Company may, at its option,
appoint a paying agent (the "Paying Agent") with respect to the Notes,
which is authorized by the Company to make payments pursuant to the
instructions of and on behalf of the Company in respect of the
principal of and interest on the Notes. The Company hereby appoints
IBJ-Xxxxxxxx Bank & Trust Company to act as initial Paying Agent with
respect to the Notes. The Company may appoint one or more additional
5
Paying Agents and may itself act as Paying Agent. The term "Paying
Agent" includes any such additional Paying Agents. The Company may
also change or terminate at any time any Paying Agent."
(i) The Note Agreement is further amended by deleting Schedule I
thereto and inserting Schedule I hereto in replacement therefor.
(j) The Note Agreement is further amended by incorporating Schedule II
hereto as Schedule II to the Note Agreement.
Section 2. Acceptance of Appointment. Each Purchaser hereby
-------------------------
irrevocably designates and appoints IBJ- Xxxxxxxx Bank & Trust Company as the
Agent pursuant to Section 8.8 of the Note Agreement. IBJ- Xxxxxxxx Bank & Trust
Company hereby accepts such appointment as Agent and agrees to be bound in all
respects by the provisions of the Note Agreement. The Agent's notice address
for purposes of the Note Agreement shall be as set forth underneath its
signature to this Amendment.
Section 3. Acknowledgement.
---------------
(a) Each of (i) The Mainstay Funds, on behalf of its High Yield
Corporate Bond Fund Series, (ii) The Mainstay VP Series Fund, Inc., on behalf
of its High Yield Corporate Bond Portfolio and (iii) Teachers' Retirement System
of Louisiana acknowledges and agrees that (x) it is a Purchaser under the Note
Agreement and (y) the term "Purchaser" as used in the Note Agreement shall
mean each such party. Each Purchaser acknowledges and agrees that it has agreed
to purchase the aggregate principal amount of Notes (as defined in the Note
Agreement) set forth opposite such Purchaser's name on the signature pages
hereto, subject to the satisfaction of the conditions set forth in Section 4
of the Note Agreement.
(b) Each of the Company, the Agent and each Purchaser acknowledges
and agrees that it is a party to the Note Agreement, as modified by this
Amendment, and is bound by, entitled to the benefits of, and subject to the
terms of, the Note Agreement, as modified by this Amendment.
(c) Each of (i) the Company, (ii) the Agent and (iii) The Xxxxx &
Xxxxxxxxxx Master Retirement Trust, The Mainstay Fund, on behalf of its
Strategic Income Fund, Highbridge Capital Corporation, Police Officers Pension
System of
6
the City of Houston and Vulcan Materials Company High Yield Account (all
institutions referred to in this clause (iii) are collectively referred to as
"Former Purchasers") acknowledges and agrees that each of the Former Purchasers
is no longer a party to the Note Agreement and has no rights or obligations
thereunder.
Section 4. Waiver.
------
(a) The Purchasers agrees to waive the provisions of Section 5.5 of
the Note Agreement for the period from October 30, 1998 through and including
January 30, 1999 to the extent necessary to permit KKR and its subsidiaries to
maintain and remain liable for secured Indebtedness in an aggregate principal
amount not to exceed $1,600,000, which secured Indebtedness was incurred prior
to the merger of FRI-Sub, Inc. with and into KKR, pursuant to the Merger
Agreement.
(b) Purchasers holding at least 50% in aggregate Accreted Value (as
defined in the Existing Discount Note Agreement) of the outstanding Existing
Discount Notes agree to waive the provisions of Section 5.5 of the Existing
Discount Note Agreement for the period from October 30, 1998 through and
including January 30, 1999 to the extent necessary to permit KKR and its
subsidiaries to maintain and remain liable for secured Indebtedness in an
aggregate principal amount not to exceed $1,600,000, which secured Indebtedness
was incurred prior to the merger of FRI-Sub, Inc. with and into KKR, pursuant to
the Merger Agreement. This clause (b) constitutes a waiver under the Existing
Discount Note Agreement.
Section 5. Status of Note Agreement. This Amendment is limited
------------------------
solely for the purposes and to the extent expressly set forth herein and nothing
herein expressed or implied shall constitute an amendment or waiver of any other
term, provision or condition of the Note Agreement or the Existing Discount Note
Agreement. Except as expressly amended or waived hereby, the terms and
conditions of the Note Agreement and the Existing Discount Note Agreement shall
continue in full force and effect.
Section 6. Effectiveness. This Amendment shall become effective upon
-------------
the execution hereof by the Company, the Agent and each of the Purchasers.
Section 7. Counterparts. This Amendment may be executed in any
------------
number of counterparts, all of which taken together shall constitute one
Amendment, and any of the parties hereto may execute this Amendment by signing
such a counterpart.
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Section 8. Headings. The descriptive headings of the various
--------
Sections or parts of this Agreement are for convenience only and shall not
affect the meaning or construction of any of the provisions hereof.
Section 9. Governing Laws. THIS AMENDMENT SHALL BE GOVERNED BY AND
--------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND SECTION 327(b) OF THE NEW YORK CIVIL PRACTICE LAWS AND
RULES.
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SCHEDULE I
Purchaser: THE MAINSTAY FUNDS, ON BEHALF OF ITS HIGH YIELD CORPORATE BOND
FUND SERIES
1. Principal Amount of Notes being acquired: $19,000,000
2. In the case of payments on account of the Notes:
By wire transfer of Federal or other immediately available funds
---- --------
(identifying each payment as to issuer, security and principal or interest)
to:
ABA # 000000000
STATE STREET BANK AND TRUST COMPANY
XXXXXX, XXXX 00000
FOR CREDIT TO:
ACCT NAME: MAINSTAY HIGH YIELD CORPORATE
BOND FUND
DDA # 4266 0761
ACCT # SN04
3. All communications shall be delivered or mailed to:
XxxXxx-Xxxxxxx Financial Corporation
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Kleinberg, Kaplan, Xxxxx & Xxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
4. Tax I.D. #: 00-0000000
9
Purchaser: MAINSTAY VP SERIES FUND, INC., ON BEHALF OF ITS HIGH
YIELD CORPORATE BOND PORTFOLIO
1. Principal Amount of Notes being acquired: $3,000,000
2. In the case of payments on account of the Notes:
By wire transfer of Federal or other immediately available funds
---- --------
(identifying each payment as to issuer, security and principal or interest)
to:
ABA # 000000000
BANK OF NEW YORK/CUST.
GLA 111612
FOR CREDIT TO:
ACCT NAME: MAINSTAY V.P. SERIES HIGH YIELD CORPORATE BOND FUND
ACCT # 274467
3. All communications shall be delivered or mailed to:
XxxXxx-Xxxxxxx Financial Corporation
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Kleinberg, Kaplan, Xxxxx & Xxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
4. Tax I.D. #: 00-0000000
10
Purchaser: TEACHERS' RETIREMENT SYSTEM OF LOUISIANA
1. Principal Amount of Notes being acquired: $2,000,000
2. In the case of payments on account of the Notes:
By wire transfer of Federal or other immediately available funds
---- --------
(identifying each payment as to issuer, security and principal or interest)
to:
ABA # 021-001 000
XXXXXXX XXXXX, XX, XX
ACCT # 00-000-000
FOR FURTHER CREDIT TO:
ACCT NAME: TEACHERS RETIREMENT SYSTEM OF
LOUISIANA
ACCT # 173955
3. All communications shall be delivered or mailed to:
XxxXxx-Xxxxxxx Financial Corporation
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Kleinberg, Kaplan, Xxxxx & Xxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
4. Tax I.D. #: 00-0000000
11
SCHEDULE II
PLEDGED SECURITIES
Issued and Stock
Issuer Outstanding Shares Certificate
------ ------------------ -----------
The Hamlet 1,000 shares of Common 3
Group, Inc. Stock, no par value per
share
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
FRI-MRD CORPORATION, as Company
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
[signature pages continued on next page]
IBJ-XXXXXXXX BANK & TRUST
COMPANY, as Agent
By:_____________________________
Name:
Title:
Address:
-------------------------
-------------------------
-------------------------
[signature pages continued on next page]
PURCHASERS:
Principal Amount of Notes: THE MAINSTAY FUNDS, ON BEHALF OF
$19,000,000 ITS HIGH YIELD CORPORATE BOND FUND SERIES
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: __________________________
Name: Xxxxxx X. Xxxxx
Title: Director
[signature pages continued on next page]
Principal Amount of Notes: THE MAINSTAY VP SERIES FUND, INC.,
$3,000,000 ON BEHALF OF ITS HIGH YIELD CORPORATE BOND
PORTFOLIO
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By:___________________________
Name: Xxxxxx X. Xxxxx
Title: Director
[signature pages continued on next page]
Principal Amount of Notes: TEACHERS' RETIREMENT SYSTEM
$2,000,000 OF LOUISIANA
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By:___________________________
Name: Xxxxxx X. Xxxxx
Title: Director
[signature pages continued on next page]
ACKNOWLEDGED AND AGREED TO BY:
THE XXXXX & XXXXXXXXXX MASTER
RETIREMENT TRUST
By: MacKay-Shield Financial Corporation
Its: Investment Advisor
By:_______________________________
Name: Xxxxxx X. Xxxxx
Title: Director
[signature pages continued on next page]
THE MAINSTAY FUND, ON BEHALF OF
ITS STRATEGIC INCOME FUND
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: ___________________________
Name: Xxxxxx X. Xxxxx
Title: Director
[signature pages continued on next page]
HIGHBRIDGE CAPITAL CORPORATION
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By:________________________
Name: Xxxxxx X. Xxxxx
Title: Director
[signature pages continued on next page]
POLICE OFFICERS PENSION SYSTEM OF
THE CITY OF HOUSTON
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By:____________________________
Name: Xxxxxx X. Xxxxx
Title: Director
[signature pages continued on next page]
VULCAN MATERIALS COMPANY HIGH
YIELD ACCOUNT
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By:____________________________
Name: Xxxxxx X. Xxxxx
Title: Director
IBJ-XXXXXXXX BANK & TRUST
COMPANY, as Agent
By: /s/ XXXXXXX XxXXXXXXX
---------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
Address:
Xxx Xxxxx Xxxxxx
---------------------------------
Xxx Xxxx, Xxx Xxxx 00000
---------------------------------
---------------------------------
[signature pages continued on next page]
PURCHASERS:
Principal Amount of Notes: THE MAINSTAY FUNDS, ON BEHALF OF ITS
$19,000,000 HIGH YIELD CORPORATE BOND FUND SERIES
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/ XXXXXX X. NISI
-------------------------
Name: Xxxxxx X. Nisi
Title: Director
[signature pages continued on next page]
Principal Amount of Notes: THE MAINSTAY VP SERIES FUND, INC.,
$3,000,000 ON BEHALF OF ITS HIGH YIELD
CORPORATE BOND PORTFOLIO
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/ XXXXXX X. NISI
------------------------------------
Name: Xxxxxx X. Nisi
Title: Director
[signature pages continued on next page]
Principal Amount of Notes: TEACHERS' RETIREMENT SYSTEM
$2,000,000 OF LOUISIANA
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/ XXXXXX X. NISI
------------------------------------
Name: Xxxxxx X. Nisi
Title: Director
[signature pages continued on next page]
ACKNOWLEDGED AND AGREED TO BY:
THE XXXXX & XXXXXXXXXX MASTER
RETIREMENT TRUST
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/ XXXXXX X. NISI
------------------------------------
Name: Xxxxxx X. Nisi
Title: Director
[signature pages continued on next page]
THE MAINSTAY FUND, ON BEHALF OF
ITS STRATEGIC INCOME FUND
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/ XXXXXX X. NISI
------------------------------------
Name: Xxxxxx X. Nisi
Title: Director
[signature pages continued on next page]
HIGHBRIDGE CAPITAL CORPORATION
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/ XXXXXX X. NISI
------------------------------------
Name: Xxxxxx X. Nisi
Title: Director
[signature pages continued on next page]
POLICE OFFICERS PENSION SYSTEM OF
THE CITY OF HOUSTON
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/ XXXXXX X. NISI
------------------------------------
Name: Xxxxxx X. Nisi
Title: Director
[signature pages continued on next page]
VULCAN MATERIALS COMPANY HIGH
YIELD ACCOUNT
By: XxxXxx-Xxxxxxx Financial Corporation
Its: Investment Advisor
By: /s/ XXXXXX X. NISI
------------------------------------
Name: Xxxxxx X. Nisi
Title: Director
