Exhibit 10.17
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS FIRST AMENDMENT (this "First Amendment") dated as of July 16, 1997,
and, subject to and upon satisfaction of the terms and conditions of Section 3
below, effective as of April 30, 1997 (the "Effective Date") to the Note
Purchase Agreements dated September 1, 1995, among Flow International
Corporation (the "Company"), a Delaware corporation, and the Persons identified
as "Holders" on the signature page hereof (collectively, the "Holders").
RECITALS:
A. The Company entered into those certain separate Note Purchase
Agreements, each dated September 1, 1995 (collectively, the "Existing Note
Purchase Agreement" and, as amended hereby, the "Amended Note Purchase
Agreement"), with each of Connecticut General Life Insurance Company and Life
Insurance Company of North America (each individually, a "Purchaser" and
collectively, the "Purchasers"), pursuant to which the Company issued and sold
to the Purchasers and the Purchasers purchased from the Company, Fifteen Million
Dollars ($15,000,000) in aggregate principal amount of the Company's Senior
Notes due September 26, 2005 (collectively, the "Notes").
B. The Holders are the registered holders of one hundred percent (100%)
of the Notes outstanding on the date hereof.
C. The Company has requested that the Holders agree to amend certain
provisions of the Existing Note Purchase Agreement as further set forth herein,
which requested amendment requires the consent of the holders of the Notes.
D. Subject to the terms and conditions set forth in this First Amendment,
the Company and the Holders are willing to agree to amend the Existing Note
Purchase Agreement, all in the manner as more particularly set forth herein.
AGREEMENT:
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Holders agree as follows:
SECTION 1. WARRANTIES AND REPRESENTATIONS.
To induce the Holders to enter into this First Amendment, the Company
warrants and represents to the Holders as follows:
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1.1 AUTHORIZATION, EXECUTION AND ENFORCEABILITY. The execution and
delivery by the Company of this First Amendment, and the performance of its
obligations under this First Amendment and the Amended Note Purchase Agreement
have been duly authorized by all necessary action on the part of the Company.
Each of this First Amendment and the Amended Note Purchase Agreement constitutes
a valid and binding obligation of the Company, enforceable in accordance with
its respective terms, except that the enforceability thereof may be:
(a) limited by bankruptcy, insolvency or other similar laws affecting
the enforceability of creditors' rights generally; and
(b) subject to the availability of equitable remedies.
1.2 NO CONFLICTS, ETC. The execution and delivery by the Company of
this First Amendment, and the performance by the Company of its obligations
under this First Amendment and the Amended Note Purchase Agreement, does not
conflict with, result in any breach in any of the provisions of, constitute a
default under, violate the provisions of, or otherwise (except as provided
herein) require any consent or approval under:
(a) any charter document, agreement with shareholders or bylaws 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, including, without limitation, any of the Financing Documents; or
(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.
1.3 SECURITY INTERESTS; SUBSIDIARY GUARANTY AGREEMENT.
(a) The first priority security interest of the Bank Agent, as
agent for the Holders, in the Collateral remains valid, enforceable and
perfected as of the date hereof, and the Collateral is subject to no other Liens
not otherwise permitted under the Existing Note Purchase Agreement, the Security
Documents, and the other Financing Documents.
(b) The Subsidiary Guaranty Agreement remains valid and
enforceable against each Guarantor (as defined in such Subsidiary Guaranty
Agreement) subject thereto, and no consent or other action of any Guarantor is
required as a condition to the Company's entering into this First Amendment and
to the continued
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validity and enforceability of the Subsidiary Guaranty Agreement against each
such Guarantor.
1.4 EXISTENCE OF DEFAULTS. After giving effect to the amendment set
forth in this First Amendment, no condition exists that would constitute a
Default or an Event of Default under the Amended Note Purchase Agreement, or any
of the Financing Documents.
SECTION 2. AMENDMENT WITH RESPECT TO EXISTING NOTE PURCHASE AGREEMENT;
AFFIRMATION.
2.1 AMENDMENT. The Company and, subject to the satisfaction of the
conditions set forth in Section 3 hereof, the Holders, each hereby consent and
agree that the Existing Note Purchase Agreement is hereby amended as follows:
The definition of the term "Consolidated Income Available for Fixed
Charges" in Schedule B of the Existing Note Purchase Agreement is hereby
amended by deleting such definition in its entirety and substituting
therefor the following new definition:
""Consolidated Income Available for Fixed Charges" means, with
respect to any period, Consolidated Net Income for such period plus all
amounts deducted in the computation thereof on account of (a) Fixed
Charges, (b) taxes on or measured by income or excess profits, and (c) with
respect to the period February 1, 1997 through April 30, 1998,
restructuring expenses up to, but not exceeding $9,000,000 in the
aggregate, as more particularly defined, identified and disclosed under the
line item "Expenses: Restructuring" (and in accompanying "Note 4 -
Restructuring") of the Company's 1997 Annual Report on Form 10-K, and on
the Company's Quarterly Reports on Form 10-Q."
2.2 AFFIRMATION OF OBLIGATIONS UNDER FINANCING DOCUMENTS. The
Company hereby acknowledges and affirms all of its obligations under the terms
of the Amended Note Purchase Agreement and the other Financing Documents.
2.3 SCOPE OF AMENDMENT. Except as expressly set forth in this
Agreement, no provision of the Existing Note Purchase Agreement, the Notes,
the Security Documents, the other Financing Documents, or any other
agreement, document or instrument shall be deemed to have been amended
hereby. No Default or Event of Default, or right, remedy, or power consequent
thereon, whether as provided in the Existing Note Purchase Agreement, the
Notes, the Amended Note Purchase Agreement, the Security Documents, the other
Financing Documents, or by law, to any holder of Notes, shall be deemed to
have been waived or affected hereby.
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SECTION 3. CONDITIONS TO EFFECTIVENESS OF AMENDMENT.
This Amendment shall not be effective until the following conditions
precedent shall have been satisfied in full to the reasonable satisfaction of
the Holders, upon the happening of which this Amendment shall become effective
as of the Effective Date:
3.1 EXECUTION AND DELIVERY OF THIS AGREEMENT. The Company and the
Holders shall have executed and delivered to each other an original counterpart
of this Agreement.
3.2 NO DEFAULTS; WARRANTIES AND REPRESENTATIONS TRUE.
(a) After giving effect to the First Amendment, no Default or
Event of Default shall exist under the Amended Note Purchase Agreement, the
Notes, the Security Documents, or the other Financing Documents.
(b) The warranties and representations of the Company set forth
in Section 1 hereof shall be true and correct as of the Effective Date and as of
the date of this Amendment.
SECTION 4. MISCELLANEOUS.
4.1 TERMS DEFINED. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings specified in the Amended Note
Purchase Agreement.
4.2 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED
AND ENFORCED IN ACCORDANCE WITH, AND GOVERNED BY, INTERNAL STATE OF WASHINGTON
LAW.
4.3 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.
5.4 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 the party against
which enforcement of the change, waiver, discharge or termination is sought.
5.5 SECTION HEADINGS. The titles of the Sections hereof appear as a
matter of convenience only, do not constitute
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a part of this agreement and shall not effect the construction hereof.
5.6 SURVIVAL. All warranties, representations, certifications and
covenants made by the Company in this Agreement shall be considered to have been
relied upon by the Holders and shall survive the execution and delivery of this
Agreement, regardless of any investigation made by or on behalf of the Holders.
[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.
Company: FLOW INTERNATIONAL CORPORATION,
a Delaware corporation
By: /s/ Steve Reichenbach
--------------------------------
Name: Steve Reichenbach
Title: CFO
Holder: CONNECTICUT GENERAL LIFE INSURANCE
COMPANY*
By: CIGNA Investments, Inc.
By: /s/ Daniel E. Feder
----------------------------
Name: DANIEL E. FEDER
Title: VICE PRESIDENT
Holder: LIFE INSURANCE COMPANY OF NORTH AMERICA*
By: CIGNA Investments, Inc.
By: /s/ Daniel E. Feder
----------------------------
Name: DANIEL E. FEDER
Title: VICE PRESIDENT
* Each of these entities is either the registered owner of one or more of the
securities pertaining hereto or is a beneficial owner of one or more of such
securities owned by and registered in the name of a nominee for that entity.
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