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Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 1 TO
REMARKETING AND CONTINGENT
PURCHASE AGREEMENT
This AMENDMENT NO. 1 (the "AMENDMENT") is made as of November 7, 2000,
by and among Hercules Incorporated, a Delaware corporation ("HERCULES"),
Hercules Trust V, a Delaware statutory business trust (the "TRUST"), and Banc of
America Securities LLC (as remarketing agent, the "REMARKETING AGENT").
Capitalized terms used and not defined in this Amendment shall have the meanings
assigned to them in the Remarketing Agreement (as defined below).
WITNESSETH:
WHEREAS, Hercules, the Trust and the Remarketing Agent are parties to a
Remarketing and Contingent Purchase Agreement dated as of February 9, 2000 (the
"REMARKETING AGREEMENT");
WHEREAS, the parties hereto desire to amend the Remarketing Agreement
to modify the timing and conditions relating to exercise of the Put Right and to
delete any reference to repayment of a portion of the Extension Fee;
WHEREAS, the Remarketing Agreement provides for amendment of its
terms, subject to satisfaction of certain requirements;
WHEREAS, all things necessary to make this Amendment a valid amendment
and agreement according to its terms have been done;
NOW THEREFORE, in consideration of their mutual covenants contained
herein, the parties hereto, intending to be legally bound, hereby mutually
covenant and agree as follows:
ARTICLE 1
SECTION 1.01. Amendment of Section 8. Section 8 of the Remarketing
Agreement is hereby amended to read in its entirety as follows:
SECTION 8. Put Right. On any Business Day on or after 11:59
p.m. (New York City time) on November 15, 2000, the Holders of
a Majority in Liquidation Amount of the Trust Securities (or,
if applicable, the holders of a majority in principal amount
of the
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Subordinated Notes) may, by notice in writing to the Company
(the "PUT NOTICE"), require the Company to purchase from the
holders thereof, on a Pro Rata basis in accordance with
Section 9 of Annex I to the Trust Agreement, all outstanding
Trust Securities (or, if applicable, all outstanding
Subordinated Notes) for a purchase price equal to the
aggregate Liquidation Amount of such Trust Securities plus
accrued but unpaid Distributions thereon (or, if applicable,
the aggregate principal amount of such Subordinated Notes plus
accrued but unpaid interest thereon) (the "PUT RIGHT").
Payment of such purchase price shall be made directly to each
such holder on (A) the date on which the Put Notice is given,
if given before 11:00 a.m. New York City time or (B) the
Business Day immediately following the date on which the Put
Notice is given, if given after 11:00 a.m. New York City time.
Such purchase shall be without recourse of any kind to any
such holder. The parties recognize that the exercise of the
Put Right indicates that it would not be commercially
reasonable under the circumstances to require Holders of Trust
Securities (or, if applicable, holders of the Subordinated
Notes) to attempt to resell such securities otherwise than
pursuant to this Section 8, and that therefore in the event of
any default by the Company in its obligations under this
Section 8, a holder shall be entitled to recover the price of
the securities specified herein.
SECTION 1.02. Extension Fee. Clause (b) of Section 25 of the
Remarketing Agreement is hereby deleted in its entirety.
SECTION 1.03. Amendment Fee. In consideration for the execution of this
amendment, the Company agrees to pay to the Holders of the Preferred Securities
a fee as set forth in the Letter Agreement dated November 7, 2000 among Intrepid
Master Funding Trust, the Remarketing Agent and the Company.
SECTION 1.04. Rescission of Remarketing Notice. Subject to the payment
of the fee referred to in Section 1.03 on the date hereof, the Remarketing Agent
hereby rescinds, and the Holders of a Majority in Liquidation Amount of the
Trust Securities hereby consent to the rescission of, the Remarketing Notice
given pursuant to the Remarketing Agreement on October 11, 2000.
SECTION 1.05. Governing Law. This Amendment and the rights of the
parties hereunder shall be governed by and construed in accordance with the laws
of the State of New York and all rights and remedies shall be governed by such
laws, without reference to the choice of laws rules thereof.
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SECTION 1.06. Severability. If any provision in this Amendment shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.07. Counterparts. The parties may sign any number of copies
of this Amendment. Each signed copy shall be an original, but all of them
together represent the same agreement. Any signed copy shall be sufficient proof
of this Amendment.
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IN WITNESS WHEREOF, each of Hercules, the Trust and the Remarketing
Agent has caused this Remarketing Agreement to be executed in its name and on
its behalf by one of its duly authorized officers as of the date first above
written.
HERCULES INCORPORATED
By:
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Name:
Title:
HERCULES TRUST V
By:
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Name:
Title:
Confirmed and Accepted as of the date hereof:
BANC OF AMERICA
SECURITIES LLC, not individually,
but solely as Remarketing Agent
By:
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Name:
Title:
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Consented to:
INTREPID FUNDING MASTER TRUST,
as Holder of a Majority in Liquidation
Amount of the Trust Securities
By: Wilmington Trust Company, not
in its individual capacity, but
solely as Owner Trustee
By:
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Name:
Title:
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