EXHIBIT 10.2
BINKS XXXXX CORPORATION
_______________________
CONSENT AND THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT
_______________________
RE:
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 30, 1993
AND
$15,000,000 ORIGINAL PRINCIPAL AMOUNT OF
7.64% SERIES A SENIOR NOTES DUE SEPTEMBER 30, 1999
DATED AS OF NOVEMBER 30, 1993
BINKS XXXXX CORPORATION
CONSENT AND THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT
RE:
NOTE PURCHASE AGREEMENT DATED AS OF NOVEMBER 30, 1993
AND
$15,000,000 ORIGINAL PRINCIPAL AMOUNT OF
7.64% SERIES A SENIOR NOTES DUE SEPTEMBER 30, 1999
THIS CONSENT AND THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT (this
"AMENDMENT") is made as of this 30th day of June, 1998, between BINKS XXXXX
CORPORATION, a Delaware corporation (the "COMPANY"), and THE EQUITABLE LIFE
ASSURANCE SOCIETY OF THE UNITED STATES (the "NOTEHOLDER"), with respect to that
certain Note Purchase Agreement dated as of November 30, 1993, as amended by a
Waiver and First Amendment to Note Purchase Agreement dated September 23, 1997,
and a Waiver and Second Amendment to Note Purchase Agreement dated March 16,
1998, between the Company and the Noteholder (the "EXISTING NOTE PURCHASE
AGREEMENT," and the Existing Note Purchase Agreement as amended by this
Amendment, the "AMENDED NOTE PURCHASE AGREEMENT"). Capitalized terms used in
this Amendment which are not otherwise defined herein shall have the meanings
given such terms in the Existing Note Purchase Agreement.
WITNESSETH
WHEREAS, the Company and the Noteholder are parties to the Existing Note
Purchase Agreement; and
WHEREAS, the Company requests the amendment of certain provisions of the
Existing Note Purchase Agreement and a consent to the settlement of certain
pending litigation specified herein;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Noteholder (subject to the satisfaction of the
condition set forth below in Section 3) hereby agree as follows:
1. AMENDMENT OF EXISTING NOTE PURCHASE AGREEMENT
(a) AMENDMENT OF SECTION 11.1 OF THE EXISTING NOTE PURCHASE
AGREEMENT. Section 11.1 of the Existing Note Purchase Agreement is amended
to add the following definitions in appropriate alphabetical order:
"XXXX ENTITIES" means Behr Systems, Inc. and Xxxx Systems, GmbH.
"XXXX PATENTS" means U.S. Patent No. 4,405,086 entitled "DEVICE
FOR ATOMIZING LIQUID COLOR" and the related foreign patents.
"XXXX LITIGATION" means (a) that certain patent infringement
action brought by Behr Systems, Inc. against SEI and Xxxxx, X.X. in
the United States District Court for the Eastern District of Michigan,
Civil Action No. 97-72744; (b) the suit filed in Germany by Xxxx
Systems, GmbH against the Company and/or any of its Subsidiaries or
Affiliates; and (c) any other pending actions or threatened actions by
either of the Xxxx Entities against the Company or any of its
Subsidiaries or Affiliates relating to or arising out of the Xxxx
Patents.
"XXXX SETTLEMENT AGREEMENT" means a Patent License and Settlement
Agreement among the Company, Xxxxx, X.X., SEI and the Xxxx Entities on
substantially the same terms and conditions as the draft dated June
30, 1998 and distributed to the Noteholder by cover memorandum from
the Company's counsel dated June 30, 1998.
(b) AMENDMENT OF SECTION 11.1 OF THE EXISTING NOTE PURCHASE
AGREEMENT. Section 11.1 of the Existing Note Purchase Agreement is further
amended by amending and restating the defined term "Restricted Payment" to
read as follows:
"Restricted Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any Equity Interests
of the Company now or hereafter outstanding, except a dividend payable
solely in the Company's Capital Stock (other than Disqualified Stock)
or in options, warrants or other rights to purchase such Capital
Stock, (ii) any redemption, retirement, purchase or other acquisition
for value, direct or indirect, of any Equity Interests of the Company
or any of its Subsidiaries now or hereafter outstanding, other than in
exchange for, or out of the proceeds of, the substantially concurrent
sale (other than to a Subsidiary of the Company) of other Equity
Interests of the Company (other than Disqualified Stock, (iii) any
redemption, purchase, retirement, defeasance, prepayment or other
acquisition for value, direct or indirect, of any Indebtedness other
than the Notes, (iv) any payment of a claim for the rescission of the
purchase or sale of, or for material damages arising from the purchase
or sale of, any Indebtedness (other than the Notes) or any Equity
Interests of the Company or any of the Company's Subsidiaries, or of a
claim for reimbursement, indemnification or contribution arising out
of or related to any such claim for damages or rescission and (v) any
payment to any Person in connection with the Disclosed Disputes (other
than the payment of ordinary course litigation management costs to
Persons not a party to the litigation or dispute, including, without
limitation, court reporter services, document management services and
attorneys' and paralegals' fees and expenses).
(c) AMENDMENT OF SECTION 7.3(A)(x) OF THE EXISTING NOTE PURCHASE
AGREEMENT. Section 7.3(A)(x) of the Existing Note Purchase Agreement is
amended to delete the "and" immediately prior to clause (b) thereof and
substitute it with a ";" and to add the following immediately after clause
(b) thereof:
; and (c) unsecured Indebtedness in an amount not to exceed the amount
set forth in Section 3.2 of the Xxxx Settlement Agreement PROVIDED
such Indebtedness is incurred in connection with a full and complete
settlement of the Xxxx Litigation on the terms set forth in Xxxx
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Settlement Agreement and PROVIDED FURTHER such Indebtedness shall
reduce the amount available under Section 1(c) of the Disclosure
Letter for agreements in connection with any of the other Disclosed
Disputes by the amount of such Indebtedness.
(d) AMENDMENT OF SECTION 7.4 OF THE EXISTING NOTE PURCHASE AGREEMENT.
Section 7.4 of the Existing Note Purchase Agreement is amended to add the
following at the end thereof:
(F) Notwithstanding anything herein to the contrary, each of the
financial covenants set forth in clauses (B) through (D) above shall
be calculated without taking into account the non-cash charge taken by
the Company in connection with the Company's execution of the Xxxx
Settlement Agreement.
2. CONSENT
Notwithstanding the terms of Section 1(c) of the Disclosure Letter, the
Company, Xxxxx, X.X. and SEI shall be permitted to incur the unsecured
settlement obligations set forth in Section 3.2 of the Xxxx Settlement Agreement
provided the amount of such obligations shall count against the dollar basket
set forth in Section 1(c) of the Disclosure Letter.
3. CONDITION OF EFFECTIVENESS
This Amendment shall not become effective unless, on or before July 2,
1998, the Company shall have entered into a parallel amendment to the Credit
Agreement on terms and conditions substantially identical to this Amendment.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants as follows:
(a) This Amendment and the Amended Note Purchase Agreement constitute
legal, valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms.
(b) Upon the effectiveness of this Amendment, the Company hereby
reaffirms all covenants, representations and warranties made in the
Existing Note Purchase Agreement and the other Financing Documents to the
extent the same are not amended or waived hereby, and agrees that all such
covenants, representations and warranties shall be deemed to have been
remade as of the effective date of this Amendment.
(c) No Default or Event of Default has occurred under the Amended
Note Purchase Agreement.
5. MISCELLANEOUS
(a) EFFECT OF AMENDMENT AND WAIVER. Upon the execution and delivery
by the Company and the Noteholder, the Existing Note Purchase Agreement
shall be deemed to be amended as set forth above and the consent set forth
above shall be deemed to be effective. This Amendment shall be binding
upon, and shall inure to the benefit of, the permitted successors and
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assigns of the parties hereto and the holders from time to time of the
Amended Notes. Except as expressly provided herein, (i) no terms or
provisions of any agreement are modified or changed by this Amendment,
(ii) the terms of this Amendment shall not operate as a waiver by the
Noteholder of, or otherwise prejudice the Noteholder's rights, remedies or
powers under, the Existing Note Purchase Agreement or under any applicable
law and (iii) the terms and provisions of the Existing Note Purchase
Agreement shall continue in full force and effect, as amended by this
Amendment.
(b) NO LEGEND REQUIRED. Any and all notices, requests, certificates
and other instruments including, without limitation, the Amended Notes, may
refer to the Note Purchase Agreement or the Note Purchase Agreement dated
as of November 30, 1993 without making specific reference to this Consent
and Third Amendment to Note Purchase Agreement, but nevertheless all such
references shall be deemed to include this Consent and Third Amendment to
Note Purchase Agreement unless the context shall otherwise require.
(c) FEES AND EXPENSES. Whether or not the transactions herein
contemplated shall be consummated, the Company agrees to pay directly all
of the Noteholder's reasonable out-of-pocket expenses in connection with
the preparation, negotiation, execution and delivery of this Amendment, and
the transactions contemplated hereby, including, but not limited to, the
fees and disbursements of Xxxx & Xxxxxx, the Noteholder's special counsel.
(d) SURVIVAL. All warranties, representations, certifications and
covenants made by the Company in this Amendment or in any certificate or
other instrument delivered by it or on its behalf under this Amendment
shall be considered to have been relied upon by the Noteholder and shall
survive the execution of this Amendment, regardless of any investigation
made by or on the Noteholder's behalf. All statements in any such
certificate or other instrument shall constitute warranties and
representations of the Company under this Amendment.
(e) DUPLICATE ORIGINALS; EXECUTION IN COUNTERPART. Two or more
duplicate originals of this Amendment may be signed by the parties, each of
which shall be an original but all of which together shall constitute one
and the same instrument. This Amendment may be executed in one or more
counterparts and shall be effective when at least one counterpart shall
have been executed by each party to this Amendment, and each set of
counterparts which, collectively, show execution by each such party to this
Amendment shall constitute one duplicate original.
(f) GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6. NO STRICT CONSTRUCTION
The parties hereto have participated in jointly in the negotiation and
drafting of this Amendment and the Existing Note Purchase Agreement. In the
event of an ambiguity or question of intent or interpretation arises, this
Amendment and the Amended Note Purchase Agreement shall be construed as if
drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Amendment or the Amended Note Purchase Agreement.
[Remainder of this Page Intentionally Blank.]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first above written.
BINKS XXXXX CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: VP, Chief Financial Officer
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:/s/ Xxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Investment Officer
