Exhibit 2.4
FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT
AND CONSENT
THIS FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT AND CONSENT, is made
and entered into as of February 23, 2004 (this "First Amendment and Consent"),
by and among ▇▇▇▇▇▇▇▇▇ Holding Corporation, a Delaware corporation (the
"Company"), and each of ▇. ▇. ▇▇▇▇ Laminar Portfolios, L.L.C., SZ Investments,
L.L.C., and Third Avenue Trust, on behalf of The Third Avenue Value Fund Series
(collectively, the "Purchasers"). Capitalized terms used herein that are not
otherwise defined shall have the meaning ascribed to them in that certain Note
Purchase Agreement, dated December 2, 2003 (the "Note Purchase Agreement")
entered into by and between the Company and the Purchasers.
WHEREAS, pursuant to Section 5.3(d) of the Note Purchase Agreement, the
Company may not modify that certain Investment and Purchase Agreement, by and
between Covanta Energy Corporation and the Company, dated as of December 2, 2003
(the "Covanta Agreement"), without the prior written consent of Purchasers
holding at least 66 2/3% of the aggregate outstanding principal amount of the
notes issued pursuant to the Note Purchase Agreement (the "Required Majority");
WHEREAS, pursuant to Section 12.13 of the Note Purchase Agreement, any
modification, alteration, waiver or change in any of the terms of the Note
Purchase Agreement must be made in writing and duly executed by the Company and
the Required Majority;
WHEREAS, the Company seeks to obtain the consent of the Required
Majority to amend the Covanta Agreement to allow for a reduction in the
Consideration (as that term is defined in the Covanta Agreement) and the payment
of $175,000 from the Deposit Escrow Agreement (as that term is defined in the
Covanta Agreement) in order to purchase preferred stock representing 25% of the
voting and value of New Covanta Lake, Inc., as set forth in that certain Motion
for an Order Pursuant to Sections 105 and 363(B) of the Bankruptcy Code
Authorizing Transaction Involving Covanta Lake, Inc. (the "Covanta Lake
Transaction");
WHEREAS, the payment of $175,000 from the Deposit Escrow Agreement (as
that term is defined in the Covanta Agreement) pursuant to the Covanta Lake
Transaction requires certain conforming amendments to be made to the Note
Purchase Agreement; and
WHEREAS, the Company and at least the Required Majority each desire to
consent, as applicable, to the amendment of the Covanta Agreement pursuant to
the Covanta Lake Transaction and to amend the Note Purchase Agreement as set
forth herein;
NOW, THEREFORE, in consideration of the foregoing, the receipt and
sufficiency of which is hereby acknowledged, the undersigned hereby consent and
agree as follows:
1. CONSENT. The undersigned Required Majority hereby consent, pursuant
to Section 5.3(d) of the Note Purchase Agreement, to the amendment of the
Covanta Agreement in connection with the Covanta Lake Transaction to reduce the
Purchase Price by $175,000 and to
permit the release of $175,000 from the Deposit Escrow Agreement in order to
provide the Company's consideration for the Covanta Lake Transaction.
2. FIRST AMENDMENT.
i. MANDATORY PREPAYMENT UPON THE NON OCCURRENCE OF THE CONTEMPLATED
TRANSACTIONS. The undersigned each hereby consent and agree,
pursuant to Section 12.13 of the Note Purchase Agreement, that
Section 7.4(b)(i) shall now read and be replaced in its entirely
as follows:
"(i) $29,825,000 of the original principal of and accrued
interest on the Notes shall automatically be deemed to be
cancelled and forgiven by the Purchasers;"
ii. MANDATORY PREPAYMENT IN CASH. The undersigned each hereby consent
and agree, pursuant to Section 12.13 of the Note Purchase
Agreement, that Section 7.5(a)(i) shall now read and be replaced
in its entirely as follows:
"(i) the Company shall repay the aggregate principal amount
of $29,825,000 of the Notes in cash on July 15, 2004 or, if
earlier, the third Business Day following the return of such
Deposit under the Covanta Agreement, the Reserve Amount
shall be released from the Escrow Account to the Purchasers
in repayment of the Notes in such amount, and the remaining
$3,175,000 outstanding principal amount of the Notes, if
any, together with any accrued interest, shall remain
outstanding subject to the Non-Ownership Change Rollover
Terms; PROVIDED, that such outstanding principal amount
shall be deemed increased by the amount of Investor Expense
Reimbursement then due and payable; or"
2. GOVERNING LAW. This First Amendment and Consent shall be governed by and
construed in accordance with, the laws of the State of New York.
3. COUNTERPARTS. This First Amendment and Consent may be signed in one or
more counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned, including at least the Required
Majority, have caused this First Amendment and Consent to be executed by their
respective officers thereunto duly authorized as of the day and year first above
written.
PURCHASERS:
▇. ▇. ▇▇▇▇ LAMINAR PORTFOLIOS, L.L.C.
By: /S/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
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Title: AUTHORIZED SIGNATORY
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SZ INVESTMENTS, L.L.C.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: VICE PRESIDENT
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THIRD AVENUE TRUST, ON BEHALF OF THE THIRD
AVENUE VALUE FUND SERIES
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: CHIEF FINANCIAL OFFICER
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COMPANY:
▇▇▇▇▇▇▇▇▇ HOLDING CORPORATION
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: CHIEF FINANCIAL OFFICER
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