Exhibit 10.3
OMNIBUS AMENDMENT AGREEMENT
OMNIBUS AMENDMENT AGREEMENT (together with the Exhibits hereto, this
"AGREEMENT"), dated as of September 27, 1999, by and among HF HOLDINGS, INC., a
Delaware corporation (together with its successors and assigns, the "COMPANY"),
CREDIT SUISSE FIRST BOSTON CORPORATION, a Massachusetts corporation (together
with its successors and assigns, "CSFB"), CREDIT SUISSE FIRST BOSTON MANAGEMENT
CORPORATION, a Delaware corporation (together with its successors and assigns,
"CSFBM"), BAIN CAPITAL FUND IV, L.P., a Delaware limited partnership (together
with its successors and assigns, "BAIN"), and HF INVESTMENT HOLDINGS, LLC, a
Delaware limited liability company (together with its successors and assigns,
the "LLC").
RECITALS:
A. The Company has entered into that certain Securities Purchase
Agreement, dated as of September 27, 1999, with CSFB (as in effect prior to the
effectiveness of this Agreement, the "EXISTING SECURITIES PURCHASE AGREEMENT"
and, as amended by this Agreement, the "AMENDED SECURITIES PURCHASE AGREEMENT").
B. The Company has entered into that certain Note Agreement, dated as
of September 27, 1999 (as in effect prior to the effectiveness of this
Agreement, the "EXISTING NOTE AGREEMENT" and, as amended by this Agreement, the
"AMENDED NOTE AGREEMENT"), with CSFB, pursuant to which the Company originally
issued and sold to CSFB a 0% Convertible Subordinated Note Due September 27,
2011 having an aggregate principal amount of Five Million Dollars ($5,000,000)
(the "EXISTING NOTE", and, as amended by this Agreement, the "AMENDED NOTE").
C. The LLC has issued that certain HF Class C Units Purchase Warrant,
dated as of September 27, 1999 (the "EXISTING WARRANT", and, as amended by this
Agreement, the "AMENDED WARRANT") to CSFBM.
D. Bain has entered into that certain Limited Liability Company
Agreement, dated as of September 27, 1999 (as in effect prior to the
effectiveness of this Agreement, the "EXISTING LLC AGREEMENT" and, as amended by
this Agreement, the "AMENDED LLC AGREEMENT"), with Bain Capital Fund IV-B, L.P.,
BCIP Associates and BCIP Trust Associates, L.P., Gary Stevenson, Scott Watterson
and such other persons as may from time to time be admitted as Members under the
Existing LLC Agreement.
E. CSFB has entered into that certain letter agreement, dated as of
September 27, 1999 (as amended from time to time prior to the date hereof, the
"LETTER AGREEMENT") with Bain and Bain Capital Fund IV-B, L.P., pursuant to
which the parties thereto have agreed, under certain circumstances, to enter
into certain amendments to the Existing Securities Purchase Agreement, the
Existing Note Agreement, the Existing Note, the Existing Warrant and the
Existing LLC Agreement.
F. The Company, CSFB, CSFBM, Bain and the LLC are desirous of entering
into this Agreement to effectuate the amendments contemplated by the Letter
Agreement.
AGREEMENT:
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO EXISTING SECURITIES PURCHASE AGREEMENT.
The Company and CSFB hereby consent and agree to replace the Existing
Securities Purchase Agreement with the Amended Securities Purchase Agreement as
set forth in EXHIBIT A to this Agreement.
2. AMENDMENTS TO EXISTING NOTE AGREEMENT; EXISTING NOTES.
The Company and CSFB hereby consent and agree to replace the Existing
Note Agreement and the Existing Note with the Amended Note Agreement and the
Amended Note as set forth in EXHIBIT B to this Agreement. Upon issuance of the
Amended Note, the indebtedness evidenced by the Existing Notes shall thereafter
be evidenced by the Amended Note, and the Existing Note shall thereupon be of no
further force or effect.
3. AMENDMENTS TO EXISTING WARRANT.
The LLC and CSFBM hereby consent and agree to replace the Existing
Warrant with the Amended Warrant as set forth in EXHIBIT C to this Agreement.
Upon issuance of the Amended Warrant, the obligations evidenced by the Existing
Warrant shall thereafter be evidenced by the Amended Warrant, and the Existing
Warrant shall thereupon be of no further force or effect.
4. AMENDMENTS TO EXISTING LLC AGREEMENT.
Bain and CSFBM hereby consent and agree to replace the Existing LLC
Agreement with the Amended LLC Agreement as set forth in EXHIBIT D to this
Agreement.
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5. CONDITIONS PRECEDENT.
The amendments of the Existing Securities Purchase Agreement, the
Existing Note Agreement, the Existing Note, the Existing Warrant and the
Existing LLC Agreement shall become effective on the date (the "EFFECTIVE Date")
upon which all of the following conditions precedent have been satisfied:
5.1 EXECUTION AND DELIVERY OF THIS AGREEMENT.
The Company, CSFB, CSFBM, Bain and the LLC shall have executed and
delivered a counterpart of this Agreement.
5.2 DELIVERY OF AMENDED NOTE, AMENDED WARRANT AND STOCK CERTIFICATE.
The Company shall have delivered to CSFB or its counsel an originally
executed Amended Note, an originally executed Amended Warrant and the shares of
common stock of the Company to be issued pursuant to the Amended Securities
Purchase Agreement, each in form and substance satisfactory to CSFB and its
counsel.
5.3 DELIVERY OF EXISTING NOTE, EXISTING WARRANT AND ORIGINAL STOCK
CERTIFICATE.
CSFB shall have delivered to the Company or its counsel the Existing
Note and the stock certificate representing 1,290,017 shares of common stock of
the Company issued pursuant to the Existing Securities Purchase Agreement. CSFBM
shall have delivered to the LLC or its counsel the Existing Warrant.
5.4 PROCEEDINGS SATISFACTORY.
All proceedings taken in connection with this Agreement and all
documents and papers relating hereto shall be satisfactory to CSFB, CSFBM, the
Company, Bain and their respective counsel. CSFB, CSFBM, the Company, Bain and
their respective counsel shall have received copies of such documents and papers
as they may reasonably request in connection therewith, in form and substance
satisfactory to them.
6. MISCELLANEOUS.
6.1 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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6.2 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.
6.3 DUPLICATE ORIGINALS, EXECUTION IN COUNTERPART.
Two or more 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 which,
collectively, show execution by each party hereto shall constitute one duplicate
original.
6.4 ENTIRE AGREEMENT.
This Agreement constitutes the final written expression of all of the
terms hereof and is a complete and exclusive statement of those terms.
[Remainder of Page Intentionally Blank. Next Page is Signature Page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf by a duly authorized officer or agent thereof, as the
case may be, as of the date first above written.
HF HOLDINGS, INC.
By: /s/ SCOTT R. WATTERSON
----------------------------
Name: Scott R. Watterson
Title: Chairman & CEO
CREDIT SUISSE FIRST
BOSTON CORPORATION
By: /s/ DAVID J. MATLIN
----------------------------
Name: David J. Matlin
Title: Managing Director
CREDIT SUISSE FIRST
BOSTON MANAGEMENT
CORPORATION
By: /s/ DAVID J. MATLIN
----------------------------
Name: David J. Matlin
Title: Managing Director
BAIN CAPITAL FUND IV,
L.P.
By: /s/ ROBERT C. GAY
----------------------------
Name: Robert C. Gay
Title: General Partner
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HF INVESTMENT
HOLDINGS, LLC
By: /s/ SCOTT R. WATTERSON
----------------------------
Name: Scott R. Watterson
Title: Administrative Member
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