FIRST AMENDMENT AND WAIVER AGREEMENT
FIRST AMENDMENT AND WAIVER AGREEMENT (this "Agreement"), dated as of May
16, 2002, between XXXXXXX & CO., a Delaware corporation (together with its
successors and assigns, the "Company") and each of the Persons holding one or
more Notes (defined below) on the Effective Date (defined below) (collectively,
the "Noteholders"), with respect to those certain separate Note Purchase
Agreements, each dated as of December 30, 1998 (collectively, as amended from
time to time and as in effect immediately prior to giving effect to this
Agreement, the "Note Purchase Agreement" and, as amended pursuant to this
Agreement and as may be further amended, restated or otherwise modified from
time to time, the "Amended Note Purchase Agreement"), between the Company and
each of the Persons listed on Schedule A thereto (collectively, the
"Purchasers"). Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Note Purchase Agreement.
RECITALS:
A. Pursuant to the Note Purchase Agreement, the Company authorized, issued
and sold, and the Purchasers purchased:
(a) $60,000,000 in aggregate principal amount of the Company's 6.90%
Series A Senior Notes due December 30, 2008 (as amended, restated or
otherwise modified from time to time, the "Series A Notes"), and
(b) $40,000,000 in aggregate principal amount of the Company's 7.05%
Series B Senior Notes due December 30, 2010 (as amended, restated or
otherwise modified from time to time, the "Series B Notes").
The Series A Notes and the Series B Notes are herein referred to, individually,
as a "Note," and collectively, as the "Notes."
B. An Event of Default may have occurred under the Note Purchase Agreement
as a result of the possible failure of the Company to comply with its
obligations set forth in Section 9.7 thereof.
C. The Company has requested that the Noteholders waive the Possible
Existing Event of Default (defined below) and the undersigned Noteholders are
agreeable, subject to the terms and conditions set forth below, to waiving the
Possible Existing Event of Default.
D. The Noteholders are the holders of all outstanding Notes as of the date
hereof.
AGREEMENT:
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Noteholders agree as follows:
SECTION 1. WAIVER; AMENDMENT.
1.1 Waiver.
Subject to the satisfaction of the conditions set forth in Section 3
hereof, each of the undersigned Noteholders hereby waives its rights to take any
action against the Company or any Guarantor based on any Event of Default that
may have arisen out of the possible failure of the Company to comply with its
obligations under Section 9.7 of the Note Purchase Agreement (the "Possible
Existing Event of Default") in connection with the negotiation, execution and
delivery of that certain Credit Agreement, dated as of November 5, 2001, by and
among the Company, certain Subsidiaries of the Company, each of the banks that
are a party thereto and The Bank of New York, as administrative agent.
1.2 Amendments to Note Purchase Agreement.
The Note Purchase Agreement is hereby amended in the manner specified
in Annex 1 to this Agreement.
1.3 Affirmation of Obligations under Note Purchase Agreement and Notes.
The Company hereby acknowledges and affirms all of its obligations under
the terms of the Note Purchase Agreement, the Notes and each of the other
Financing Documents to which it is a party. The execution, delivery and
effectiveness of this Agreement shall not be deemed, except as expressly
provided herein, (i) to operate as a waiver of any right, power or remedy of any
of the Noteholders under the Note Purchase Agreement, the Notes or the other
Financing Documents, nor constitute a waiver of any provision thereunder, or
(ii) to prejudice any rights which any Noteholder now has or may have in the
future under or in connection with the Amended Note Purchase Agreement, the
Notes or any other Financing Documents or under applicable law. Except as
specifically set forth above, all terms and conditions of the Note Purchase
Agreement, the Notes and the other Financing Documents shall remain unchanged
and in full force and effect.
SECTION 2. WARRANTIES AND REPRESENTATIONS.
To induce the Noteholders to enter into this Agreement, the Company
represents and warrants to each of the Noteholders that as of the Effective Date
(as hereinafter defined):
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2.1 Corporate and Other Organization and Authority.
(a) The Company and each Guarantor is a corporation duly organized,
validly existing and in good standing (to the extent that such concept is
applicable) under the laws of its jurisdiction of organization,and is duly
qualified as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and
(b) the Company has the requisite corporate power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder.
2.2 Authorization, etc.
This Agreement has been duly authorized by all necessary corporate action
on the part of the Company. Each of this Agreement, the Amended Note Purchase
Agreement, the Guaranty Agreement and each other Financing Document constitutes
a legal, valid and binding obligation of the Company or the Guarantors, as
applicable, enforceable, in each case, against such Person or Persons in
accordance with its terms, except as such enforceability may be limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally
and
(ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
2.3 No Conflicts, etc.
The execution and delivery by the Company of this Agreement and the
performance by the Company and the Guarantors of their respective obligations
under each of this Agreement, the Amended Note Purchase Agreement, the Guaranty
Agreement, and the other Financing Documents to which they are a party, as the
case may be, do not conflict with, result in any breach in any of the provisions
of, constitute a default under, violate or result in the creation of any Lien
upon any property of the Company or any Subsidiary under the provisions of:
(a) any charter document, constitutive document, agreement with
shareholders or members, bylaws or any other organizational or governing
agreement of the Company or any Subsidiary;
(b) any agreement, instrument or conveyance by which the Company or
any Subsidiary or any of their respective properties may be bound or
affected; or
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(c) any statute, rule or regulation or any order, judgment or award of
any court, tribunal or arbitrator by which the Company or any Subsidiary or
any of their respective properties may be bound or affected.
2.4 Governmental Consent.
The execution and delivery by the Company of this Agreement and the
performance by the Company and the Guarantors of their respective obligations
hereunder, under the Amended Note Purchase Agreement and the Guaranty Agreement
do not require any consents, approvals or authorizations of, or filings,
registrations or qualifications with, any Governmental Authority on the part of
the Company or any Subsidiary.
2.5 Existence of Defaults.
After giving effect to this Agreement, no event has occurred and no
condition exists that would constitute a Default or an Event of Default under
the Note Purchase Agreement.
2.6 Identity of Noteholders.
Annex 2 hereto sets forth (a) the names of the registered holders of the
Notes reflected on the register maintained by the Company pursuant to Section
13.1 of the Existing Note Purchase Agreement and (b) the stated principal
amounts of the Notes held by each such holder as reflect in said register.
2.7 Disclosure.
Neither the financial statements and certificates delivered to the
Noteholders pursuant to the Note Purchase Agreement nor any written statement,
financial statement or certificate furnished by the Company to any Noteholder in
connection herewith contains any untrue statement of a material fact or omits a
material fact necessary to make the statements contained therein or herein not
misleading. There is no fact that the Company has not disclosed to the
Noteholders in writing that has had or, so far as the Company can now reasonably
foresee, could reasonably be expected to have a Material Adverse Effect. The
Company has delivered to each Noteholder a true and correct copy of the Bank
Credit Agreement (as such term is defined on Annex 1 hereto) as in effect on the
Effective Date (defined below).
SECTION 3. CONDITIONS TO EFFECTIVENESS OF WAIVER.
The waiver set forth in Section 1.1 of this Agreement shall not become
effective unless all of the following conditions precedent shall have been
satisfied in full (the date of such satisfaction being herein referred to as the
"Effective Date"):
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3.1 Execution and Delivery of this Agreement.
The Company shall have executed and delivered to each of the Noteholders an
original counterpart of this Agreement.
3.2 Warranties and Representations True.
The warranties and representations set forth in Section 2 hereof shall be
true and correct on the Effective Date.
SECTION 4. MISCELLANEOUS.
4.1 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF
NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD
REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
4.2 Duplicate Originals.
Two or more duplicate originals of this Agreement 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 Agreement may be executed in one or
more counterparts and shall be effective when at least one counterpart shall
have been executed by each party hereto, and each set of counterparts that,
collectively, show execution by each party hereto shall constitute one duplicate
original.
4.3 Waivers and Amendments.
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, or by any action or inaction, but only by an
instrument in writing signed by each of the parties signatory hereto.
4.4 Section Headings.
The titles of the Sections hereof appear as a matter of convenience only,
do not constitute a part of this Agreement and shall not affect the construction
hereof.
4.5 Costs and Expenses.
Whether or not the waivers provided for herein become effective, the
Company confirms its obligation under Section 15.1 of the Amended Note Purchase
Agreement and
5
agrees that, on the Effective Date (or if an invoice is delivered subsequent to
the Effective Date or if the waiver provided for herein does not become
effective promptly after receiving any statement or invoice therefor), it will
pay all costs and expenses of the Noteholders relating to this Agreement,
including, but not limited to, the statement for reasonable fees and
disbursements of the Noteholders' special counsel presented to the Company on
the Effective Date. The Company will also promptly pay, upon receipt thereof,
each additional statement for reasonable fees and disbursements of the
Noteholder's special counsel rendered after the Effective Date in connection
with this Agreement.
4.6 Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto. The provisions hereof are
intended to be for the benefit of the Noteholders and shall be enforceable by
any successor or assign of any such Noteholder, whether or not an express
assignment of rights hereunder shall have been made by such Noteholder or its
successors and assigns.
4.7 Survival.
All warranties, representations, certifications and covenants made by the
Company in this Agreement shall be considered to have been relied upon by the
Noteholders and shall survive the execution and delivery of this Agreement,
regardless of any investigation made by or on behalf of the Noteholders.
4.8 Part of Note Purchase Agreement; Future References, etc.
This Agreement shall be construed in connection with and as a part of the
Note Purchase Agreement and the Notes and, except as expressly amended by this
Agreement, all terms, conditions and covenants contained in the Note Purchase
Agreement and the Notes 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
Agreement may refer to the Note Purchase Agreement and the Notes without making
specific reference to this Agreement, but nevertheless all such references shall
include this Agreement unless the context otherwise requires.
4.9 Affirmation by Guarantors.
By acknowledging and agreeing to this Agreement, each Guarantor affirms its
obligations set forth in the Guaranty Agreement.
[Remainder of page intentionally blank; next page is signature page.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed on its behalf by a duly authorized officer or agent thereof.
XXXXXXX & CO.
By: /s/ Xxxxx X. Xxxxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxxxx
Title:Executive Vice President and
Chief Financial Officer
Acknowledged and Agreed:
XXXXXXX AND COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxxxx
Title:Executive Vice President and
Chief Financial Officer
XXXXXXX & CO. INTERNATIONAL
By: /s/ Xxxxx X. Xxxxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxxxx
Title:Executive Vice President and
Chief Financial Officer
XXXXXXX & CO. JAPAN INC.
By: /s/ Xxxxx X. Xxxxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxxxx
Title:Executive Vice President and
Chief Financial Officer
Signature Page to First Amendment and Waiver Agreement
Accepted and Agreed:
THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:It's Authorized Representative
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:Vice President
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: /s/ Xxxx Xxxxxxxxxxx
--------------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title:Investment Officer
AIG ANNUITY INSURANCE COMPANY, FORMERLY KNOWN AS
AMERICAN GENERAL ANNUITY INSURANCE COMPANY
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By AIG Global Investment Corp., Investment Advisor
By: /s/ Xxxxxxx X. XxXxx
--------------------------------------------------
Name: Xxxxxxx X. XxXxx
Title:Vice President
THE GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------------
Signature Page to First Amendment and Waiver Agreement
Name: Xxxxx X. Xxxxxxxxx
Title:Director
TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF AMERICA
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title:Associate Director
J. ROMEO & CO.
By: /s/ Xxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxx
Title:Partner
WOODMEN OF THE WORLD LIFE
INSURANCE SOCIETY
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title:Securities Department Manager
KNIGHTS OF COLUMBUS
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------------
Name:Xxxxxxx X. Xxxxx
Title:Asst. Supreme Secretary
Signature Page to First Amendment and Waiver Agreement
ANNEX 1
AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT
1. Section 9.7 of the Existing Note Purchase Agreement is deleted in its
entirety.
2. Section 10.5(b) of the Existing Note Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) Incurrence of Priority Debt. The Company will not, and will not
permit any Subsidiary to, directly or indirectly, create, incur, assume,
guarantee, or otherwise become directly or indirectly liable with respect
to, any Priority Debt, unless on the date the Company or such Subsidiary
becomes liable with respect to any such Priority Debt and immediately after
giving effect thereto and the concurrent retirement of any other Priority
Debt, (i) no Default or Event of Default would exist and (ii) Priority Debt
would not exceed 15% of Consolidated Net Worth."
3. The following definition set forth on Schedule B to the Existing Note
Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
""Priority Debt" means, at any time, without duplication, the sum of
(a) all then outstanding Debt secured by any Lien on any property of
the Company or any Subsidiary, other than any such Debt (i) secured by
Liens permitted by any one or more of clauses (a) through (i), inclusive,
of Section 10.6, (ii) secured by Liens permitted by the text of Section
10.6 prior to clause (a) thereof or (iii) owing solely to the Company or
any Subsidiary, plus
(b) all then outstanding Debt of Subsidiaries;
provided that Priority Debt described in clause (b) above shall not include
(i) Debt of any Subsidiary owing solely to the Company or another
Subsidiary,
(ii) Debt of an Initial Guarantor constituting Bank Direct Loan Debt;
(iii) Debt of a Subsidiary (other than an Initial Guarantor)
constituting Bank Direct Loan Debt or a Guaranty of Bank Direct Loan Debt
arising under a Guaranty by a Subsidiary (other than an Initial Guarantor)
so long as: (A) the Company shall have caused the Subsidiary incurring such
Bank Direct Loan Debt or issuing such Guaranty (1) to deliver to each of
the holders of the Notes, (x) on or
Annex 1-1
before the date such Debt was incurred or such Guaranty was entered into,
in the case of any such Debt incurred or any such Guaranty entered into
after the Amendment No. 1 Effective Date or (y) promptly after the
Amendment No. 1 Effective Date with respect to any such Debt incurred or
any such Guaranty entered into prior to the Amendment No. 1 Effective Date,
a written notice designating such Bank Direct Loan Debt or such Guaranty,
as the case may be, as a New Bank Obligation (a "New Bank Obligation") and
(2) to execute and deliver a Guaranty of the Debt (a "New Note Guaranty")
evidenced by the Notes, substantially in the form of the Guaranty
Agreement; and (B) the Company shall have delivered to each holder of Notes
(1) a certificate of a Senior Financial Officer, in form reasonably
satisfactory to the Required Holders, to the effect that, after giving
effect to such New Bank Obligation and the New Note Guaranty, such
Subsidiary would not be insolvent (as such term is used in Section 548 of
Title 11 of the United States Code) and would not be engaged in business or
a transaction for which it has unreasonably small capital (as such term is
used in Section 548 of Title 11 of the United States Code) and (2) an
opinion from nationally recognized legal counsel, substantially in the form
attached as Annex 3 to Amendment No. 1, as to the enforceability of such
New Note Guaranty.
(iv) Debt arising under any Guaranty by an Initial Guarantor or by any
other Subsidiary who has issued a New Note Guaranty meeting the
requirements of clause (iii)(A) and clause (iii)(B) above of
(A) the Bank Direct Loan Debt;
(B) Debt evidenced by the Notes;
(C) Pari Passu Debt;
(v) Debt constituting a New Note Guaranty; or
(vi) (A) indebtedness for borrowed money of Xxxxxxx & Co. Japan Inc.,
a Delaware corporation, under loan agreements with American Family Life
Assurance Company of Columbus, Japan branch, and with The Fuji Bank Ltd.,
Aoyama branch, as such loan agreements may be amended, renewed or
refinanced from time to time, provided that, if the amount of outstanding
indebtedness under such loan agreements or successor credit or loan
agreements exceeds Y 10.5 billion, only the excess will be deemed to be
Priority Debt, and (B) the Guaranty by Xxxxxxx and Company of such
indebtedness which is not deemed Priority Debt."
4. The following definitions are hereby added to Schedule B of the Existing Note
Purchase Agreement in their proper alphabetical order:
""Amendment No. 1" means the First Amendment and Waiver Agreement
dated as of May ___, 2002 amending this Agreement.
Annex 1-2
"Amendment No. 1 Effective Date" means the date on which all of the
conditions set forth in Section 3 of Amendment No. 1 shall have been
satisfied and Amendment No. 1 shall have become effective.
"Bank Credit Agreement" means that certain Credit Agreement, dated as
of November 5, 2001, by and among the Company, certain Subsidiaries of the
Company, the banks that are parties thereto, and The Bank of New York, as
administrative agent, as amended or renewed from time to time, and each
successor loan or credit agreement constituting the Company's primary bank
credit facility, in each case as may be amended from time to time.
"Bank Direct Loan Debt" means Debt constituting direct loans or
extensions of credit under the Bank Credit Agreement in an aggregate amount
not exceeding 25% of Consolidated Net Worth to (a) the Company, (b) any one
or more of the Initial Guarantors or (c) any other Subsidiary if each of
the conditions set forth in clause (iii) under the proviso to the
definition of Priority Debt have been satisfied with respect to such other
Subsidiary.
"Initial Guarantor" means each of the Guarantors.
"Pari Passu Debt" means any Debt of the Company (a) held by one or
more institutional investors and incurred in accordance with the provisions
of Section 10.5 of this Agreement after the Amendment No. 1 Effective Date
or (b) evidenced by the Company's $51,500,000 7.52% Senior Notes due 2003.
"Y" means lawful currency of Japan."
Annex 1-3
ANNEX 2
INFORMATION AS TO NOTEHOLDERS
Principal Amount of
Name Notes Held
The Northwestern Mutual Life $20,000,000
Insurance Company
The Prudential Insurance Company $20,000,000
of America
The Equitable Life Assurance Society $14,000,000
of the United States
AIG Annuity Insurance Company, $ 7,000,000
formerly known as American General
Annuity Insurance Company
The Variable Annuity Life Insurance $ 6,000,000
Company
The Guardian Life Insurance Company $10,000,000
of America
Teachers Insurance and Annuity $10,000,000
Association of America
Mony Life Insurance Company $ 7,500,000
Woodmen of the World Life Insurance $ 3,500,000
Society
Knights Of Columbus $ 2,000,000
Annex 2-1
SCHEDULE A
Addressees
Northwestern Mutual Life Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
The Prudential Insurance Company of America
c/o The Prudential Capital Group
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
The Equitable Life Assurance Society of the United States
c/o Alliance Capital Management L.P.
1345 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
American Annuity Insurance Company, formerly known
as American General Annuity Insurance Company
c/o American General Corporation
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
The Variable Annuity Life Insurance Company
c/o American General Corporation
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
The Guardian Life Insurance Company of America
0 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Teachers Insurance and Annuity Association of America
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
MONY Life Insurance Company
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Woodmen of the World Life Insurance Society
0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Knights of Columbus
Xxx Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxxx 00000-0000
SCHEDULE B
[This Schedule B will be prepared by the Guarantor at the time of delivery of
this opinion to identify for counsel the material agreements that will be
reviewed by counsel.]
