EXHIBIT 4.10
AMENDMENT TO
AGREEMENT, dated as of May 15, 2001 (this "AMENDMENT
AGREEMENT"), between:
XXXXXXX ENTERPRISES, INC., a Louisiana corporation (the
"COMPANY"); and
BANC OF AMERICA SECURITIES LLC (which has changed its name
from NationsBanc Xxxxxxxxxx Securities LLC) ("BAS").
WHEREAS, the Company has issued $200,000,000 aggregate
principal amount of its 6.40% Remarketable Or Redeemable Securities Due May 1,
2013 (Remarketing Date May 1, 2003) (the "ROARS(SM)")(1) pursuant to an
Indenture, dated as of December 1, 1996, between the Company and Citibank, N.A.,
as trustee (in such capacity, the "TRUSTEE"), as supplemented by a First
Supplemental Indenture, dated as of April 24, 1998, between the Company and the
Trustee (the Indenture, as so supplemented, being hereinafter referred to as the
"INDENTURE");
WHEREAS, the Company and BAS have entered into a , dated as of April 24, 1998, pursuant to which BAS, as Remarketing
Dealer, has an option, among other things, to acquire and remarket the ROARS on
the Remarketing Date (as defined therein);
WHEREAS, the Company wishes to purchase ROARS in a tender
offer (the "TENDER OFFER") and in connection therewith eliminate the prohibition
in the Indenture (the "INDENTURE AMENDMENT") on the defeasance, purchase or
other acquisition of ROARS prior to the Remarketing Date, all as specified in
the Purchase Offer Statement relating to the Tender Offer (the "PURCHASE OFFER
STATEMENT");
WHEREAS, the Company may from time to time in the future seek
to purchase, through open market or privately negotiated transactions, one or
more tender or exchange offers or otherwise, all or a portion of the ROARS
remaining outstanding after the consummation of the Tender Offer;
WHEREAS BAS wishes to consent to the purchase of the ROARS by
the Company in the Tender Offer and from time to time thereafter and to the
Indenture Amendment, subject to the terms and conditions set forth herein;
NOW, THEREFORE, for and in consideration of the covenants
herein made, and subject to the conditions set forth herein, the parties hereto
agree as follows:
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(1) "ROARS" is a service xxxx of Banc of America Securities LLC.
SECTION 1. Capitalized terms used and not defined in this
Amendment Agreement shall have the meaning assigned to them in the Indenture
and, as amended hereby, the .
SECTION 2. (a) Section 3(f) of the is
hereby amended and restated as follows:
"The Company agrees that neither it, nor any of its
subsidiaries or affiliates whose ownership would cause the
ROARS to be deemed to be no longer outstanding, shall defease,
purchase or otherwise acquire, or enter into any agreement to
defease, purchase or otherwise acquire, any of the ROARS prior
to the remarketing thereof by the Remarketing Dealer, other
than pursuant to (i) Section 4(g) or 4(h) of this Agreement or
(ii) a Qualified Purchase. For purposes of this Agreement, a
"QUALIFIED PURCHASE" shall mean any defeasance, purchase or
other acquisition of the ROARS, in whole or in part, by the
Company or any of its subsidiaries or affiliates whose
ownership would cause the ROARS to be deemed to be no longer
outstanding made prior to the Notification Date, as to which
the Company or any such subsidiary or affiliate complies with
the payment obligations set forth under Section 11(e)(iv)
hereof."
(b) Section 11(e) of the is hereby
amended as follows:
(i) The first paragraph of Section 11(e) is hereby
amended and restated as follows:
"In the case of (i) any termination of this Agreement pursuant
to Section 11(b), (ii) the occurrence, prior to the
Remarketing Dealer's election on the Notification Date to
remarket the ROARS, or any event set forth in Section 8(d)(ii)
or (v), (iii) any redemption or any failure by the Company to
redeem the ROARS following any election by the Company to
effect such redemption as specified in Section 4(h) or (iv)
any Qualified Purchase (each, a "CALCULATION EVENT"), the
Company shall pay the Remarketing Dealer, in same-day funds by
wire transfer to an account designated by the Remarketing
Dealer, the fair market value, calculated as set forth below,
or the Remarketing Dealer's right to purchase and remarket the
ROARS (or, in the case of clause (iv) above, the aggregate
principal amount of ROARS that is the subject of such
Qualified Purchase, if less than all of the ROARS) pursuant to
this Agreement (the "CALCULATION AMOUNT"). Any such payment
shall be made immediately following the Calculation Amount
Determination Date (as defined below), except that in the
event of any payment made in connection with a Qualified
Purchase, such payment shall be made on the date such
Qualified Purchase is consummated.
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(ii) The first sentence of the second paragraph of
Section 11(e) is hereby amended by replacing the period at the
end of the sentence with a semicolon and inserting the
following additional proviso:
"provided further that in the event of a Qualified Purchase of
less than 100% of the ROARS, (x) a Calculation Amount with
respect to such Qualified Purchase shall be calculated as
though the aggregate principal amount of ROARS that would have
been repurchased and remarketed by the Remarketing Dealer on
the Remarketing Date were equal to the aggregate principal
amount of ROARS purchased in such Qualified Purchase, and (y)
any Calculation Amount payable in respect of any subsequent
Calculation Event shall be calculated giving effect to the
reduction in principal amount of ROARS resulting from such
Qualified Purchase."
(iii) the third sentence of the second paragraph of
Section 11(e) is hereby amended and restated as follows:
"The Remarketing Dealer shall determine the applicable
Calculation Amount as soon as practicable after the occurrence
of any of the Calculation Events (the "CALCULATION AMOUNT
DETERMINATION DATE"), except that in the event of any
Qualified Purchase the Remarketing Dealer shall determine the
applicable Calculation Amount as of the second Business Day
preceding the date such purchase is consummated."
SECTION 3. (a) The Company and BAS agree that the Tender Offer
shall be treated as a Qualified Purchase giving rise to a Calculation Event
pursuant to Section 11(e) of the , as amended by this
Amendment Agreement.
(b) BAS agrees to notify the Company of the Calculation Amount
in respect of the ROARS accepted for purchase in the Tender Offer on the
Business Day immediately following the date of expiration of the Tender Offer.
The Company agrees to pay such Calculation Amount on the Settlement Date (as
defined in the Purchase Offer Statement).
SECTION 4. BAS hereby consents to the Amendment (as defined in
the Purchase Offer Statement) for purposes of Section 8(d)(ii) of the
.
SECTION 5. This Amendment Agreement shall not affect any of
the obligations of the Company under the Indenture to the Trustee and to holders
of the ROARS. Except as expressly amended by this Amendment Agreement, the
shall remain in full force and effect. This Amendment
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed in such
State.
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IN WITNESS WHEREOF, each of the Company and BAS has caused
this Amendment Agreement to be executed in its name and on its behalf by one of
its duly authorized officers as of the date first above written.
XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: President and Chief Executive Officer
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Principal
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