EXHIBIT 4.5(ii)
▇▇▇▇▇▇ GROUP, INC.
AMENDMENT NO. 1 TO NOTE AGREEMENT
As of February 21, 2002
To each of the Current Noteholders
Named in Annex 1 hereto
Ladies and Gentlemen:
▇▇▇▇▇▇ Group, Inc. (hereinafter, the "Company"), together with its
successors and assigns, agrees with you as follows:
1. PRELIMINARY STATEMENTS.
1.1 NOTE ISSUANCE, ETC.
The Company issued and sold $60,000,000 aggregate principal amount of its
8.59% Senior Notes due November 21, 2008 (as may be amended, restated or
otherwise modified from time to time, 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 21, 2000, and entered into by and among the Company and each of the
Purchasers listed in Exhibit 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 entire outstanding principal amount of the Notes.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Note Agreement.
3. AMENDMENT.
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.
To induce you to enter into this Amendment Agreement and to consent to the
Amendment, the Company represents and warrants as follows:
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4.1. ORGANIZATION, POWER AND AUTHORITY, ETC.
The Company is a corporation duly incorporated and validly existing in good
standing under the laws of Delaware and has all requisite corporate power and
authority to enter into and perform its obligations under this Amendment
Agreement.
4.2. LEGAL VALIDITY.
The execution and delivery of this Amendment Agreement by the Company and
compliance by the Company with its obligations hereunder: (a) are within the
corporate powers of the Company; 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 under the provisions of: (i) any
charter instrument or bylaw to which the Company is a party or by which the
Company or any of its Property may be bound; (ii) any order, judgment, decree or
ruling of any court, arbitrator or governmental authority applicable to either
the Company or its Property; or (iii) any agreement or instrument to which the
Company is a party or by which the Company or any of its Property may be bound
or any statute or other rule or regulation of any governmental authority
applicable to the Company or its Property.
This Amendment Agreement has been duly authorized by all necessary action
on the part of the Company, has been executed and delivered by a duly authorized
officer of the Company, and constitutes a legal, valid and binding obligation of
the Company, 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.
The Amendment shall become effective as of the first date written above
(the "Effective Date") upon (a) receipt by the Company of the written consent of
the holders of 66-2/3% of the aggregate outstanding principal amount of the
Notes and (b) payment of the amendment fees described in Section 7 hereof to
each holder of the Notes.
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
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limited to, the reasonable fees of your special counsel, ▇▇▇▇▇▇▇ ▇▇▇▇ LLP,
incurred in connection with the preparation, negotiation and delivery of the
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. AMENDMENT FEE.
Prior to the effectiveness of this Amendment Agreement, the Company shall
have paid to each holder of Notes an amendment fee equal to 0.05% of the
outstanding principal amount of the Notes held by such holder in the manner and
to the accounts specified in the Existing Note Agreement for payments of
principal and interest on the Notes.
8. MISCELLANEOUS.
8.1. 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.
8.2. 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.
8.3. 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.
▇▇▇▇▇▇ GROUP, INC.
BY: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: VICE PRESIDENT, TREASURER
The foregoing Amendment Agreement is hereby accepted as of the date first
above written.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: MANAGING DIRECTOR
ALLSTATE LIFE INSURANCE
COMPANY
BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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AMERICAN HERITAGE LIFE
INSURANCE COMPANY
BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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NATIONWIDE LIFE INSURANCE COMPANY
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: ASSOCIATE VICE PRESIDENT
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: ASSOCIATE VICE PRESIDENT
NATIONWIDE INDEMNITY COMPANY
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: ASSOCIATE VICE PRESIDENT
ANNEX 1
CURRENT NOTEHOLDERS
The Prudential Insurance Company of America
Allstate Life Insurance Company
American Heritage Life Insurance Company
Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company
Nationwide Indemnity Company
EXHIBIT A
AMENDMENT
(a) SECTION 10.1, Definition of Consolidated EBITR. The definition of
Consolidated EBITR shall be and is hereby amended and restated in its entirety
to read as follows:
"Consolidated EBITR -- means, for any period, the sum of (a) Consolidated
Net Income for such period and (b) to the extent, and only to the extent,
that such aggregate amount was deducted in the computation of such
Consolidated Net Income, the aggregate amount of (i) Interest Charges, (ii)
income tax expense and (iii) Lease Rentals. Notwithstanding the foregoing,
those certain restructuring charges of the Company relating to loss on sale
of assets and severance and related costs arising primarily from the
closure of the Dallas facility of the Springs Division, in an amount not to
exceed $4,500,000 and recorded in the Company's fiscal quarter ending
December 31, 2001, shall not be included in any calculation of Consolidated
EBITR for such fiscal quarter."
