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EXHIBIT 10.49
AMENDMENT AGREEMENT
Amendment Agreement, dated as of January 5, 1996, by and among
Kerr Group, Inc., a Delaware corporation (the "Company"), John Hancock Mutual
Life Insurance Company ("John Hancock"), Barnett & Co. ("Barnett"), New York
Life Insurance Company ("New York Life"), Massachusetts Mutual Life Insurance
Company ("Massachusetts Mutual"), and Massmutual/Carlson CBO, N.V.
("Massmutual" and, together with John Hancock, Barnett, New York Life and
Massachusetts Mutual, the "Note Purchasers").
R E C I T A L S:
WHEREAS, the Note Purchasers (or their predecessors in
interest) and the Company entered into certain Note Agreements, each dated as
of September 15, 1993 (collectively, the "Note Agreements"), providing for the
issuance and sale of $41,000,000 aggregate principal amount of the Company's
9.45% Series A Senior Notes due September 15, 2003 (the "Series A Senior
Notes")and $9,000,000 aggregate principal amount of the Company's 8.99% Series
B Senior Notes due September 15, 1999 (collectively with the Series A Senior
Notes, the "Senior Notes")(as amended, the "Note Agreements"); and
WHEREAS, The First National Bank of Boston ("Bank of Boston")
and the Company entered into that certain Letter Agreement, dated February 9,
1995 pursuant to which Bank of Boston extended certain financial accommodations
to the Company, including a loan in the maximum principal amount of $10,000,000
evidenced by a promissory note dated February 1, 1995 to Bank of Boston in the
principal amount of $10,000,000 (collectively, the "Letter Agreement"); and
WHEREAS, Bank of Boston has agreed with the Company to enter
into an Amended and Restated Loan and Security Agreement of even date herewith
and other documents and agreements (collectively, the "Restated Loan
Agreement") amending and restating the terms of the Letter Agreement pursuant
to the Amended and Restated Loan and Security Agreement to be entered into
concurrently herewith; and
WHEREAS, the Note Purchasers have agreed to waive certain
provisions of the Note Agreements; and
WHEREAS, in consideration of the foregoing waivers, the
Company has agreed to amend the Note Agreements in accordance with the terms
hereof.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the
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receipt and adequacy of which are hereby acknowledged, the parties hereby agree
as follows:
SECTION 1. Defined Terms. Terms defined in the Note
Agreements and used herein shall have the meanings given to them in the Note
Agreements.
SECTION 2. Amendments and Agreements. (a) Amendments to
Subsection 9.1 (Required Prepayments) of Note Agreements. Subsection 9.1 of
each of the Note Agreements is hereby amended (1) by retitling paragraph (c)
thereof as paragraph (d) and (2) by adding after paragraph (b) thereof the
following new paragraph (c):
"(c) On the date of the occurrence of a "Change in Control"
(as such term is defined in that certain Amended and Restated Loan
and Security Agreement, dated as of January 5, 1996, between the
Company and The First National Bank of Boston, as in effect on
January 5, 1996 and as it may be amended thereafter with your consent
(the "Bank Loan Agreement")), the Company will prepay, or cause to be
prepaid, the entire outstanding principal amount of the Notes,
together with interest thereon to the date of prepayment plus the
Make-Whole Premium (based on such principal amount)."
(b) Amendments to Subsection 10.5 (Consolidation or Merger;
Sale of Assets) of Note Agreements. Subsection 10.5 of each of the Note
Agreements is hereby amended by adding at the end thereof the following
sentence:
"Notwithstanding anything in this Section 10.5 to the
contrary, the Company may engage in any transaction resulting in a
"Change in Control" (as defined in the Bank Loan Agreement) if the
Company complies with the provisions of Section 9.1(c)."
(c) Agreements with Respect to Payments of Interest.
Notwithstanding anything in the Note Agreements or the Notes to the contrary,
interest shall be payable on the unpaid principal balance of the Notes
quarterly on each December 31, March 31, June 30 and September 30. At the
request of any holder of a Note, the Company shall exchange any currently
outstanding Note for one or more new Notes reflecting the payment of interest
on a quarterly basis and otherwise containing terms identical to the currently
outstanding Notes.
(d) Further Amendments. The parties hereto shall not amend
or modify the terms and provisions of the Note Agreements, as in effect on the
Closing Date, without the prior written consent of The First National Bank of
Boston.
SECTION 3. Representations, Warranties and Covenants.
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The Company represents and warrants that:
(a) Corporate Power and Authority. The Company has all
requisite corporate power and authority to enter into and perform its
obligations under this Amendment Agreement. The execution, delivery and
performance of this Amendment Agreement have been duly authorized by all
necessary corporate action on the part of the Company and, upon execution and
delivery of this Amendment Agreement by each of the Note Purchasers, this
Amendment Agreement will constitute the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles.
(b) Compliance with Other Instruments, etc. The consummation
of the transactions contemplated by this Amendment Agreement will not result in
any breach of, or constitute a default under, or (except as expressly
contemplated hereby) result in the creation of any mortgage, lien, pledge,
charge, security interest or other encumbrance in respect of any property of
the Company under, any indenture, mortgage, deed of trust, bank loan or credit
agreement, corporate charter, by-law, or other agreement or instrument to which
the Company is a party or by which the Company or any of its properties may be
bound or affected, or violate any existing law, governmental rule or
regulations, or any order of any court, arbitrator or governmental body,
applicable to the Company or any of its properties.
(c) Governmental Consent. No consent, approval or
authorization of, or registration, filing or declaration with, any governmental
authority is required for the validity of the execution and delivery by the
Company of this Amendment Agreement or the consummation by the Company of the
transactions contemplated hereby.
SECTION 4. Effectiveness. This Amendment Agreement shall
become effective upon the occurrence of the following events:
(a) The Note Purchasers shall have received counterparts of
this Amendment Agreement executed by the Company and each of the Note
Purchasers; and
(b) The transactions contemplated by the Restated Loan
Agreement shall have been consummated.
SECTION 5. Counterparts; Separate Agreements. This Amendment
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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SECTION 6. Governing Law. This Amendment Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to conflicts of law principles.
SECTION 7. Headings. The headings of the several sections of
this Amendment Agreement are inserted for convenience only and shall not in any
way affect the meaning or construction of this Amendment Agreement.
SECTION 8. No Other Changes. Except as expressly stated
herein, the Note Agreements are unaffected hereby and shall remain in full
force and effect in accordance with the respective terms thereof.
SECTION 9. Successors and Assigns. This Amendment Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto, whether so expressed
or not, and, in particular, shall inure to the benefit of and be enforceable by
any holder or holders at any time of any Notes or any part thereof.
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IN WITNESS WHEREOF, the parties hereto have signed, or caused
their duly elected officer to sign on the date first written above.
KERR GROUP, INC.
By: /s/ Geoffrey A. Whynot
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JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By:
------------------------
NEW YORK LIFE INSURANCE
COMPANY
By:
-------------------------
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
-------------------------
MASSMUTUAL/CARLSON
CBO, N.V. LIFE
By:
-------------------------
BARNETT & CO.
By:
-------------------------
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IN WITNESS WHEREOF, the parties hereto have signed, or caused
their duly elected officer to sign on the date first written above.
KERR GROUP, INC.
By:
---------------------------
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By: /s/ STEPHEN J. BLEWITT
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NEW YORK LIFE INSURANCE
COMPANY
By:
---------------------------
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
---------------------------
MASSMUTUAL/CARLSON
CBO, N.V.
By:
---------------------------
BARNETT & CO.
By:
---------------------------
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IN WITNESS WHEREOF, the parties hereto have signed, or caused
their duly elected officer to sign on the date first written above.
KERR GROUP, INC.
By:
---------------------
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By:
---------------------
NEW YORK LIFE INSURANCE
COMPANY
By: /s/ LYDIA S. SANGREE
---------------------
Lydia S. Sangree
Assistant Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
--------------------
MASSMUTUAL/CARLSON
CBO, N.V.
By:
---------------------
BARNETT & CO.
By:
---------------------
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IN WITNESS WHEREOF, the parties hereto have signed, or caused
their duly elected officer to sign on the date first written above.
KERR GROUP, INC.
By:
----------------------
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By:
----------------------
NEW YORK LIFE INSURANCE
COMPANY
By:
----------------------
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ BRUCE E. GAUDETTE
----------------------
Vice President
MASSMUTUAL/CARLSON
CBO, N.V.
By:
----------------------
BARNETT & CO.
By:
---------------------
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IN WITNESS WHEREOF, the parties hereto have signed, or caused
their duly elected officer to sign on the date first written above.
KERR GROUP, INC.
By:
----------------------
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By:
----------------------
NEW YORK LIFE INSURANCE
COMPANY
By:
----------------------
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
----------------------
MASSMUTUAL/CARLSON
CBO, N.V.
By: MEESPIERSON TRUST
(CURACAO) N.V.
----------------------
Managing Director
BARNETT & CO.
By:
----------------------
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IN WITNESS WHEREOF, the parties hereto have signed, or caused
their duly elected officer to sign on the date first written above.
KERR GROUP, INC.
By:
-----------------------
JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY
By:
-----------------------
NEW YORK LIFE INSURANCE
COMPANY
By:
-----------------------
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
-----------------------
MASSMUTUAL/CARLSON
CBO, N.V.
By:
-----------------------
BARNETT & CO.
By: /s/ RICHARD McCORMICK
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