Exhibit 4.17
Midas International Corporation.
1300 Arlington Heights Road
Itasca, Illinois 60143
New York, New York
As of March 18, 2003
Re: Amendment No. 3 to Note and Guarantee Agreement,
dated as of April 15, 1998, as amended
To the Holders of the Notes
Referred to Below
Ladies and Gentlemen:
Reference is made to the Note and Guarantee Agreement dated as of April 15,
1998 (as in effect on the date hereof, the "Agreement") among Midas
International Corporation, a Delaware corporation (the "Company"), Midas, Inc.,
a Delaware corporation (the "Guarantor" and, together with the Company, the
"Obligors") and the purchasers whose names appear in the acceptance form at the
end thereof (each, a "Purchaser" and, collectively, the "Purchasers"), pursuant
to which the Purchasers purchased $75,000,000 aggregate principal amount of the
Company's 6.89% Guaranteed Senior Notes due 2005 (the "Notes").
The Company has requested that the holders of the Notes, and the holders of
the Notes party hereto are willing to, amend Section 10.7 of the Agreement and
the definition of EBITDA in the Agreement as provided herein, all on the terms
and conditions of this Amendment.
Accordingly, in consideration of the premises and the mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. Unless otherwise defined herein, all terms used
herein that are defined in the Agreement (as amended hereby) shall have their
respective meanings as therein defined.
Section 2. Amendments to Agreement. Subject to the satisfaction of the
conditions to effectiveness specified in Section 4 below, but with effect on and
after the date hereof
2.1 EBITDA Definition. The definition of EBITDA in the Agreement shall be
amended and restated to read in its entirely as follows:
"EBITDA" means, as of the last day of any fiscal quarter, Consolidated
Net Income for the four fiscal quarters ending on such date, plus all
amounts deducted in the computation of such Consolidated Net Income on
account of (i) Consolidated Interest Expense, (ii) depreciation and
amortization expenses and other non-cash charges, (iii) cash charges
not in excess of $31,000,000 relating to Midas's previously disclosed
restructuring plan, and (iv) income, profit and franchise taxes, all
determined on a consolidated basis in accordance with GAAP.
2.2 Section 10.7. Section 10.7 of the Agreement shall be amended by
deleting it in its entirety and substituting therefor the following:
10.7. Minimum Net Worth. The Guarantor will not at any time permit
Consolidated Net Worth to be less than the sum of (a) $71,700,000 plus
(b) an amount equal to 50% of Consolidated Net Income for each
completed fiscal quarter of the Guarantor ending on or after March 28,
1998 (but only if Consolidated Net Income for such fiscal quarter is a
positive number and excluding any Consolidated Net Income to the
extent it is reflected in the determination of Consolidated Net Worth
as of the date of the Closing), less (c) cash charges not in excess of
$31,000,000 relating to Midas's previously disclosed restructuring
plan and non-cash charges.
Section 3. Representations and Warranties of the Obligors. The Company and
the Guarantor jointly and severally represent and warrant to the holders of the
Notes as follows (and the parties hereto agree that the following
representations and warranties shall be deemed to have been made pursuant to the
Agreement for all relevant purposes thereof):
3.1. Power and Authority. Each Obligor has the corporate power and
authority to execute and deliver this Amendment and to perform the
Agreement as amended hereby (the "Amended Agreement").
3.2. Authorization. etc. This Amendment has been duly authorized by
all necessary corporate action on the part of each Obligor, and has been
duly executed and delivered by each Obligor, and the Amended Agreement
constitutes a legal, valid and binding obligation of each Obligor,
enforceable against such Obligor, in accordance with its terms, except as
such enforcement 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).
3.3. No Conflicts. The execution, delivery and performance by the
Obligors of this Amendment and of the Amended Agreement will not (i)
contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of either
Obligor or any Subsidiary under, any indenture, mortgage, deed of trust,
loan, purchase or credit agreement, lease, corporate charter or by-laws, or
any other agreement or instrument to which either Obligor or any Subsidiary
is bound or by which either Obligor or any Subsidiary or any of their
respective properties may be bound or affected, (ii) conflict with or
result in a breach of any of the terms, conditions or provisions of any
order, judgment, decree, or ruling of any court, arbitrator or
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Governmental Authority applicable to either Obligor or any Subsidiary or
(iii) violate any provision of any statute or other rule or regulation of
any Governmental Authority applicable to either Obligor or any Subsidiary.
3.4. No Defaults. Both immediately prior and after-giving effect to
this Amendment, no Default or Event of Default has occurred and is
continuing.
3.5 Bank Agreement. The copy of the Credit Agreement (as defined
below) being provided concurrently herewith is a true and correct copy of
the Credit Agreement including all amendments through the date hereof.
Section 4. Conditions to Effectiveness. The amendment to the Agreement
set forth in Section 2 shall become effective retroactive to December 27,
2002 upon execution and delivery of this Amendment by the Obligors and the
Required Holders.
Section 5. Miscellaneous.
5.1. Costs and Expenses. As provided in Section 16.1 of the Agreement,
the Obligors agree to pay on demand all costs and expenses (including
reasonable attorney's fees of a single special counsel and, if reasonably
required, local or other counsel) of the holders of the Notes in connection
with the negotiation, preparation, execution and delivery of this Amendment
and any documents executed pursuant hereto.
5.2. Ratification/Waiver. The Agreement, except as amended pursuant
hereto, is in all respects ratified and confirmed, and the terms, covenants
and agreements thereof shall remain in full force and effect.
5.3. References to Agreement and Notes. From and after the date
hereof, all references to the Agreement in the Agreement, the Notes, the
Guarantee and all documents and instruments incident to the transactions
contemplated by the Agreement, shall be deemed to be references to the
Agreement as amended by this Amendment.
5.4. Governing Law. This Amendment shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the
law 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 then such State.
5.5. Execution in Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(SIGNATURE PAGES FOLLOW]
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If you are in agreement with the foregoing, please sign the form of
acceptance Ira the space provided below whereupon this Amendment shall become a
binding agreement between you and the Obligors.
Very truly yours,
MIDAS INTERNATIONAL CORPORATION
By:_______________________________
Name: William M. Guzik
Title: Senior Vice President
Chief Financial Officer
MIDAS, INC.
By:_______________________________
Name: William M. Guzik
Title: Senior Vice President
Chief Financial Officer
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ACCEPTED AND AGREED:
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By CIGNA Investments, Inc.
By_____________________________
Name:
Title:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY ON BEHALF OF ONE OR MORE
SEPARATE ACCOUNTS
By CIGNA Investments, Inc.
By_____________________________
Name:
Title:
CANADA LIFE INSURANCE
COMPANY OF AMERICA
By_____________________________
Name:
Title:
CANADA LIFE INSURANCE
COMPANY OF NEW YORK
By_____________________________
Name:
Title:
SOUTHERN FARM BUREAU LIFE
INSURANCE COMPANY
By_____________________________
Name:
Title:
AMERICAN GENERAL LIFE
INSURANCE COMPANY, and
THE UNITED STATES LIFE INSURANCE
COMPANY IN THE CITY OF NEW YORK
By: AIG Global Investment Corp.
By_____________________________
Name:
Title:
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THE TRAVELERS INSURANCE COMPANY
By_____________________________
Name:
Title:
FIRST TRENTON INDEMNITY COMPANY
By_____________________________
Name:
Title:
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