FIRST AMENDMENT
TO
INDENTURE AND NOTES
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THIS FIRST AMENDMENT TO INDENTURE AND NOTES (this "First Amendment") is
dated as of January __, 1994, between FORUM GROUP, INC., an Indiana corporation
(the "Company"), and FIRST TRUST NATIONAL ASSOCIATION, as Trustee (the
"Trustee").
RECITALS:
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A. The Company and the Trustee entered into an Indenture, dated as of
June 11, 1993 (the "Indenture"), providing for the issuance of the Company's 12-
1/2% Senior Subordinated Notes due 2003 (the "Notes").
B. The Company has requested amendments of certain provisions of the
Indenture and the Notes.
C. The registered holders of 100% in outstanding principal amount of the
Notes have consented to this First Amendment.
NOW, THEREFORE, for valuable consideration hereby acknowledged, each party
hereto agrees as follows for the benefit of the other and for the equal and
ratable benefit of the Holders of the Company's Notes:
Section 1. Definitions. Unless otherwise defined herein, capitalized
terms are used herein as defined in the Indenture.
Section 2. Amendment of Section 1.01.
(a) Section 1.01 of the Indenture is hereby amended by deleting the
definitions of Credit Agreement, Deferred Interest, Representative and Senior
Indebtedness and by inserting the following in appropriate alphabetical order:
"Citicorp Credit Agreement" means the Credit Agreement, dated as of
June 10, 1993, among the Company, the banks and financial institutions
signatory thereto (collectively, the "Banks"), Citibank, N.A., as issuing
bank, and Citicorp USA, Inc., as agent, as the same may be amended,
modified, supplemented, or extended, refinanced, refunded, restructured or
replaced from time to time (including any amendment or modification that
results in an increase in the principal amount of loans or other extension
of credit outstanding thereunder) in accordance with the terms of this
Indenture.
"Credit Agreement" means the Citicorp Credit Agreement and all other
agreements of the Company evidencing Senior Indebtedness, as the same may
be amended, modified,
supplemented, extended, refinanced, refunded, restructured or replaced from
time to time in accordance with the terms of this Indenture.
"Nomura Loan Agreement" means the Loan Agreement, among FGI Financing
I Corporation, a subsidiary of the Company, Nomura Asset Capital
Corporation ("Nomura"), as lender, and Bankers Trust Company, as Custodian,
as the same may be amended, modified, supplemented, or extended,
refinanced, refunded, restructured or replaced from time to time (including
any amendment or modification that results in an increase in the principal
amount of loans or other extension of credit outstanding thereunder) in
accordance with the terms of this Indenture.
"Representative" means the agent or representative for Senior
Indebtedness under any Credit Agreement.
"Senior Indebtedness" means (i) the principal of and interest on
(including interest accrued after commencement, or that would have accrued
but for the commencement, of any proceeding pursuant to any Bankruptcy Law
with respect to the Company or any of its Subsidiaries, at the rate
specified in the Nomura Loan Agreement), and all other amounts payable with
respect to or in connection with, Debt of the Company or any of its
Subsidiaries arising under the Nomura Loan Agreement (including, without
limitation, any reimbursement obligation to the issuing bank thereof in
respect of letters of credit, and any obligation arising under the Nomura
Loan Agreement to pay any fee or to indemnity the Representative or any
lender thereunder or to pay, or reimburse the Representative or any lender
thereunder for payment of, any expenses incurred by the Representative or
such lender), and the principal of, interest (including such post-petition
interest) on and other amounts payable with respect to any Debt incurred to
refinance, replace or refund any Debt under the Nomura Loan Agreement, (ii)
the principal of and interest on (including interest accrued after
commencement, or that would have accrued but for the commencement, of any
proceeding pursuant to any Bankruptcy Law with respect to the Company or
any of its Subsidiaries, at the rate specified in the Citicorp Credit
Agreement), and all other amounts payable with respect to or in connection
with, Debt of the Company arising under the Citicorp Credit Agreement
(including, without limitation, any reimbursement obligation to the issuing
bank thereof in respect of letters of credit, and any obligation arising
under the Citicorp Credit Agreement to pay any fee or to indemnify the
Representative or any lender thereunder or to pay, or reimburse the
Representative or any lender thereunder for payment of, any expenses
incurred by the Representative or such lender), and the principal of,
interest (including such post-petition interest) on and other amounts
payable with respect to any
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Debt incurred to refinance, replace or refund any Debt under the Citicorp
Credit Agreement, (iii) Debt of the Company under any interest rate swap or
cap agreement or other agreements designed to hedge against fluctuations in
interest rates (collectively, "Interest Rate Swap Agreements"), provided,
that for purposes of determining the amount of Senior Indebtedness
outstanding as of any given date, the amount of Debt of the Company under
any Interest Rate Swap Agreement shall be deemed to be the amount of any
termination payment that the Company would be obligated to make if such
Interest Rate Swap Agreement were terminated on such date, and (iv)
reimbursement obligations, or guarantees in respect thereof, and any other
obligations owing in respect of any letter of credit issued in connection
with the industrial revenue bond on the facility known as "Lafayette at
Country Place." Notwithstanding any other provision hereof, the aggregate
principal amount of Senior Indebtedness outstanding at any time shall not
exceed in the aggregate the greater of (i) $80 million and (ii) the sum of
the outstanding principal amount under the Nomura Loan Agreement on the
date of the closing of the loan with Nomura, plus the outstanding
obligations under the Citicorp Credit Agreement (including all amounts
available to be drawn under any letters of credit issued thereunder) on the
date of the closing of the loan with Nomura.
(b) Section 1.01 of the Indenture is hereby further amended by inserting
"Citicorp" immediately before "Credit Agreement" in the seventh line of the
definitions of Unrestricted Cash and Unrestricted Subsidiary.
Section 3. Amendment of Section 3.01. Section 3.01 of the Indenture is
hereby amended by deleting therefrom the phrase "at any time on or after June 1,
1996."
Section 4. Amendment of Section 4.01.
(a) Section 4.01 of the Indenture is hereby amended by deleting the phrase
"deferred pursuant to this Section 4.01" from the fourteenth line of the first
paragraph of such Section.
(b) Section 4.01 of the Indenture is hereby further amended by deleting the
second, third and fourth paragraphs of such Section.
Section 5. Amendment of Notes. Each of the Notes outstanding under the
Indenture is hereby amended as follows:
(a) the second sentence of Paragraph 1 is deleted in its entirety;
(b) the last paragraph of Paragraph 2 is deleted in its entirety; and
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(c) Paragraph 5 is amended in its entirety to read as follows:
Redemption.
The Securities may be redeemed in whole or in part at any time, at the
option of the Company, at the Redemption Price (expressed as a percentage
of principal amount) set forth below with respect to the indicated
Redemption Date, in each case, together with any accrued but unpaid
interest to the Redemption Date.
If redeemed during the
12-month period beginning
April 15 (except in 1994,
when the Redemption Price
is applicable beginning
January 18) Redemption Price
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1994...................... 110.00%
1995...................... 109.00
1996...................... 108.00
1997...................... 106.67
1998...................... 105.33
1999...................... 104.90
2000...................... 102.67
2001...................... 101.33
2002 and thereafter....... 100.00
Any such redemption will comply with Article III of the Indenture.
Section 6. Effectiveness. This First Amendment shall not be effective
until the refinancing with Nomura Asset Capital Corporation of certain of the
Company's outstanding indebtedness is completed.
Section 7. Representations and Warranties. The Company represents and
warrants to the Trustee that this First Amendment constitutes its legal, valid
and binding obligation, enforceable in accordance with its terms (subject as to
enforcement of remedies to any applicable bankruptcy, reorganization,
moratorium, or similar laws or principles of equity affecting the enforcement of
creditors' rights generally).
Section 8. Entire Agreement; Ratification. This First Amendment
represents the entire agreement between the parties and supersedes any prior
agreements or understandings with respect to the subject matter hereof. Except
as modified or supplemented in connection herewith, the Indenture and the Notes
shall continue in full force and effect.
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Section 9. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE UNITED
STATES OF AMERICA.
Section 10. Counterparts. This First Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument. In making proof hereof, it shall not be necessary to produce
or account for any counterpart other than one signed by the party against which
enforcement is sought.
IN WITNESS HEREOF, this First Amendment to Indenture and Notes is executed
as of the date first set forth above.
FORUM GROUP, INC.
(Seal)
Attest: ___________________ By_______________________
Title:
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
(Seal)
Attest: ___________________ By_______________________
Title:
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