EXHIBIT 4.4 (ii)
3031786 NOVA SCOTIA COMPANY
AMENDMENT NO. 1 TO NOTE AGREEMENT
As of February 5, 2003
To each of the Current Noteholders
Named in Annex 1 hereto
Ladies and Gentlemen:
3031786 Nova Scotia Company, a Nova Scotia company, (hereinafter, the
"Company") and ▇▇▇▇▇▇ Group Inc., a Delaware corporation (hereinafter, the
"Guarantor" as to Sections 2, 7 and 8 of the Note Agreement), together with
their respective successors and assigns, agree with you as follows:
1. PRELIMINARY STATEMENTS.
1.1 NOTE ISSUANCE, ETC.
The Company issued and sold (i) US$24,500,000 aggregate principal amount
of its 7.66% Senior Notes due November 12, 2007 (as may be amended, restated or
otherwise modified from time to time, the "7.66% Notes") and (ii) US$45,500,000
aggregate principal amount of its 7.80% Senior Notes due November 12, 2010 (as
may be amended, restated or otherwise modified from time to time, the "7.80%
Notes" and together with the 7.66% Notes, the "Notes") pursuant to a Note
Agreement (the "Existing Note Agreement" and, as amended by this Amendment No. 1
to Note Agreement (this "Amendment Agreement"), the "Note Agreement"), dated as
of November 12, 1999, and entered into by and among the Company, the Guarantor
and each of the Purchasers listed on Schedule A attached thereto. The register
for the registration and transfer of the Notes indicates that the Persons named
in Annex 1 hereto (collectively, the "Current Noteholders") are currently the
holders of the outstanding principal amount of the Notes as set forth next to
such holder's name in Annex 1.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Note Agreement.
3. AMENDMENT.
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Subject to Section 5, the Existing Note Agreement is amended as provided
for by this Amendment Agreement in the manner specified in Exhibit A (the
"Amendment").
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTOR.
To induce you to enter into this Amendment Agreement and to consent to
the Amendment, the Company and the Guarantor represent and warrant as follows:
4.1. ORGANIZATION, POWER AND AUTHORITY, ETC.
Each of the Company and the Guarantor is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all requisite corporate or other power and authority to
enter into and perform its respective obligations under this Amendment
Agreement.
4.2. LEGAL VALIDITY.
The execution and delivery of this Amendment Agreement by the Company
and the Guarantor and compliance by the Company and the Guarantor with their
respective obligations hereunder: (a) are within the corporate or other powers
of the Company and the Guarantor; and (b) are legal and do not conflict with,
result in any breach of, constitute a default under, or result in the creation
of any Lien upon any Property of the Company or the Guarantor under the
provisions of: (i) any charter instrument or bylaw to which either the Company
or the Guarantor is a party or by which either the Company or the Guarantor any
of its respective Property may be bound; (ii) any order, judgment, decree or
ruling of any court, arbitrator or governmental authority applicable to the
Company or the Guarantor or any of their respective Properties; or (iii) any
agreement or instrument to which either the Company or the Guarantor is a party
or by which either the Company or the Guarantor or any of their respective
Properties may be bound or any statute or other rule or regulation of any
governmental authority applicable to the Company or the Guarantor or any of
their respective Properties.
This Amendment Agreement has been duly authorized by all necessary
action on the part of each of the Company and the Guarantor, has been executed
and delivered by a duly authorized officer of each of the Company and the
Guarantor, and constitutes a legal, valid and binding obligation of each of the
Company and the Guarantor, enforceable in accordance with its terms, except that
enforceability may be limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws affecting the
enforceability of creditors' rights generally and subject to the availability of
equitable remedies.
4.3. NO DEFAULTS.
No event has occurred and no condition exists that, upon the execution
and delivery of this Amendment Agreement, would constitute a Default or an Event
of Default.
5. EFFECTIVENESS OF AMENDMENT.
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The Amendment shall become effective as of the first date written above
(the "Effective Date") upon:
(a) execution and delivery of a counterpart of this Amendment
Agreement by the Company, the Guarantor and the holders of 66-2/3% of the
aggregate outstanding principal amount of the Notes;
(b) delivery by the Guarantor of a fully executed copy of the Kar
Guaranty (as defined below) dated as of February 5, 2003 from Kar Products, LLC,
a Delaware limited liability company, in favor of (i) Fleet National Bank, a
national banking association, as administrative agent (in such capacity, the
"Administrative Agent") for itself and the other lending institutions
(collectively, the "Bank Lenders") which are or may become parties to a
Revolving Credit Agreement dated as of June 14, 2002 by and among the Guarantor,
the Bank Lenders, the Administrative Agent and the Documentation Agents (as such
term is defined in the Credit Agreement) (the "Credit Agreement"), (ii) each of
the Bank Lenders, (iii) each of the holders of the Notes and (iv) each of the
other financial institutions named therein, guarantying the payment and other
obligations of (x) the Guarantor under the Credit Agreement and the other
agreements listed therein (including (A) the Note Purchase Agreement dated as of
December 1, 1995, by and among the Guarantor and each of the purchasers listed
on Schedule A attached thereto (the "1995 Note Agreement") and (B) the Note
Purchase Agreement dated as of November 21, 2000, by and among the Guarantor and
each of the purchasers listed on Exhibit A attached thereto (the "2000 Note
Agreement")) and (y) of the Company under the Note Agreement (the "Kar
Guaranty");
(c) delivery by the Guarantor of a fully executed copy of (i) an
amendment to the 1995 Note Agreement, dated the date hereof, and (ii) an
amendment to the 2000 Note Agreement, dated the date hereof; and
(d) delivery by the Guarantor of a fully executed copy of an
amendment to the Credit Agreement, dated the date hereof.
6. EXPENSES.
Whether or not the Amendment becomes effective, the Company will
promptly (and in any event within thirty days of receiving any statement or
invoice therefor) pay all fees, expenses and costs relating to this Amendment
Agreement, including, but not limited to, the reasonable fees of your special
counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, incurred in connection with the preparation,
negotiation and delivery of this Amendment Agreement and any other documents
related thereto. Nothing in this Section shall limit the Company's obligations
pursuant to Section 1.5 of the Existing Note Agreement.
7. MISCELLANEOUS.
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7.1. PART OF EXISTING NOTE AGREEMENT; FUTURE REFERENCES, ETC.
This Amendment Agreement shall be construed in connection with and as a
part of the Existing Note Agreement and, except as expressly amended by this
Amendment Agreement, all terms, conditions and covenants contained in the
Existing Note Agreement are hereby ratified and shall be and remain in full
force and effect. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Amendment Agreement may refer to the Existing Note Agreement without making
specific reference to this Amendment Agreement, but nevertheless all such
references shall include this Amendment Agreement unless the context otherwise
requires.
7.2. COUNTERPARTS; EFFECTIVENESS.
This Amendment Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
Delivery of an executed signature page by facsimile transmission shall be
effective as delivery of a manually signed counterpart of this Amendment
Agreement.
7.3. GOVERNING LAW.
THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE
OF CONNECTICUT EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT
WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN
CONNECTICUT.
[Remainder of page intentionally left blank; next page is signature page.]
If you are in agreement with the foregoing, please so indicate by
signing the acceptance below on the accompanying counterpart of this Amendment
Agreement and returning it to the Company, whereupon it will become a binding
agreement among each of you and the Company.
3031786 NOVA SCOTIA COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇▇ GROUP INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President - Finance
and Chief Financial Officer
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Vice President and Treasurer
The foregoing Amendment Agreement is hereby accepted as of the date
first above written.
ALLSTATE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
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MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc,
as Investment Adviser
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
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CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
By: CIGNA Investments, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
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NATIONWIDE LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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THE CANADA LIFE ASSURANCE COMPANY
(J. ROMEO & CO. as Nominee)
By: /s/ C. ▇▇▇▇ ▇▇▇▇▇▇▇
Name: C. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: U.S. Securities Vice-President
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PAN-AMERICAN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇., C.F.A.
Name: ▇▇▇▇ ▇▇▇▇▇▇, ▇▇., C.F.A
Title: Senior Vice President
Investments
ANNEX 1
CURRENT NOTEHOLDERS AND
CURRENT OUTSTANDING PRINCIPAL AMOUNT
Current Noteholders: Outstanding Principal Amount of Notes
-------------------- -------------------------------------
7.66% Notes 7.80% Notes
----------- -----------
Allstate Insurance Company $ 5,000,000 n/a
Allstate Life Insurance Company $ 12,500,000 n/a
State Farm Life Insurance Company $ 7,000,000 $ 7,000,000
Massachusetts Mutual Life Insurance Company n/a $ 14,000,000
Connecticut General Life Insurance Company n/a $ 10,500,000
Nationwide Life Insurance Company n/a $ 7,000,000
The Canada Life Assurance Company n/a $ 3,500,000
Pan-American Life Insurance Company n/a $ 3,500,000
TOTALS $ 24,500,000 $ 45,500,000
EXHIBIT A
AMENDMENT
1. Section 7.7 (Indebtedness) of the Existing Note Agreement is hereby
amended and restated in its entirety to read as follows:
"Section 7.7 Indebtedness.
Except to the extent permitted under Section 7.7(d) through (f),
inclusive, the Company will not, nor will it permit any of its Subsidiaries to,
directly or indirectly incur, create, assume or permit to exist any Indebtedness
other than the Notes. The Guarantor will not, nor will it permit any of its
Subsidiaries (including the Company) to, directly or indirectly incur, create,
assume or permit to exist any Indebtedness other than:
(a) Indebtedness incurred by the Guarantor under the Revolving
Credit Agreement;
(b) the Notes;
(c) Indebtedness outstanding on the date hereof under the
Guarantor's $40,000,000, 9.47% Senior Notes due September 16,
2001 and $25,000,000, 7.13% Senior Notes due December 5, 2005;
(d) Indebtedness which constitutes extensions, renewals or
replacements on substantially the same terms and conditions (and
does not increase the amount outstanding) of (a) through (c)
above;
(e) the Kar Guaranty; and
(f) additional Indebtedness of the Guarantor and its Subsidiaries;
provided, however, that (i) the total Indebtedness of the Guarantor's
Subsidiaries (including the Company) shall not at any time exceed $100
million (excluding the Kar Guaranty); (ii) total Indebtedness of the
Guarantor's Domestic Subsidiaries (excluding the Kar Guaranty) shall not
at any time exceed $10 million (excluding from the calculation thereof
for all purposes except compliance with Section 7.4(b)(4) any
pre-existing Indebtedness of a newly acquired Domestic Subsidiary for a
period not exceeding 90 days after acquisition of such Domestic
Subsidiary); and (iii) the aggregate amount of all Indebtedness of the
Guarantor and its Subsidiaries (including the Company) at any time
outstanding shall not exceed an amount equal to 155% of Consolidated Net
Worth at such time."
2. Clause (d) of Section 7.14 (Restricted Loans, Advances and Investments)
of the Existing Note Agreement shall be amended and restated in its entirety to
read as follows:
"(d) loans or advances of the Guarantor to any of its Subsidiaries and
loans or advances of any Subsidiary of the Guarantor to the Guarantor or another
such Subsidiary, or an investment made by the Guarantor in a Person pursuant to
which, immediately after giving effect to such investment, such Person becomes a
Subsidiary of the Guarantor,"
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3. Clause (e) of Section 7.14 (Restricted Loans, Advances and Investments)
of the Existing Note Agreement shall be amended and restated in its entirety to
read as follows:
"(e) in addition to those investments permitted by clause (d) hereof,
purchases of stock or other securities of any corporations, associations or
other business entities; provided, however, that the aggregate cost to or fair
market value of the consideration paid by the Guarantor and its Subsidiaries for
such stock or securities of any such corporation, association or other business
entity shall not exceed the sum of: (A) $25,000,000, plus (B) 50% of
Consolidated Net Income for the period commencing on October 1, 1999 and ending
on the date of such stock or securities purchase (or minus 100% of Consolidated
Net Income for such period if Consolidated Net Income for such period is a loss)
or"
4. The definition of "Kar Guaranty" shall be added to Section 10.1 (Terms
Defined) of the Existing Note Agreement in the appropriate alphabetical order
thereof to read as follows:
""Kar Guaranty" means that certain Guaranty dated as of February 5, 2003 from
Kar Products, LLC, a Delaware limited liability company, in favor of (i) Fleet
National Bank, a national banking association, as administrative agent (in such
capacity, the "Administrative Agent") for itself and the other lending
institutions (collectively, the "Bank Lenders") which are or may become parties
to a Revolving Credit Agreement dated as of June 14, 2002 by and among the
Guarantor, the Bank Lenders, the Administrative Agent and the Documentation
Agents (as such term is defined in the Credit Agreement) (the "Credit
Agreement"), (ii) each of the Bank Lenders, (iii) each of the holders of the
Notes and (iv) each of the other financial institutions named therein,
guarantying the payment and other obligations of (x) the Guarantor under the
Credit Agreement and the other agreements listed therein (including (A) the Note
Purchase Agreement dated as of December 1, 1995, by and among the Guarantor and
each of the purchasers listed on Schedule A attached thereto (the "1995 Note
Agreement") and (B) the Note Purchase Agreement dated as of November 21, 2000,
by and among the Guarantor and each of the purchasers listed on Exhibit A
attached thereto (the "2000 Note Agreement")) and (y) of the Company under the
Note Agreement."
