SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
This SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT, dated as of August 15, 2000
(this "Amendment") among FRITZ COMPANIES, INC., a Delaware corporation (the
"Company"), and each of the institutions listed on the signature pages hereof
(the "Purchasers") modifies that certain Note Purchase Agreement (the "Original
Note Agreement"), dated as of April 15, 1996, among the Company and each of the
institutions listed on Annex 1 thereto (the "Original Purchasers"), as amended
by that First Amendment Agreement (the "First Amendment"), dated as of March 1,
1998, among the Company and each of the institutions listed on the signature
pages thereof (collectively, the "Existing Note Agreement;" and the Existing
Note Agreement as modified by this Amendment, the "Note Agreement").
WHEREAS, pursuant to the Original Note Agreement, the Company issued to the
Purchasers its 6.43% Senior Notes due April 15, 2003 (the "Notes") in the
aggregate principal amount of Seventy-Five Million Dollars ($75,000,000); and
WHEREAS, the Purchasers are the holders of all the outstanding Notes; and
WHEREAS, the Company and the Purchasers have agreed to amend certain provisions
of the Existing Note Agreement as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINED TERMS
Capitalized terms used and not defined herein shall have the same meanings given
to them in the Note Agreement.
2. AMENDMENTS TO EXISTING NOTE AGREEMENT.
2.1 Amendment to Section 10.
Section 10 of the Existing Note Agreement is hereby amended and restated by
adding a new Section 10.11 as follows:
10.11 Fixed Charge Coverage Ratio.
The Company will, at all times, maintain the Fixed Charges Coverage Ratio at
greater than 1.5 to 1.0. 2.2 Amendments to Definitions in Annex II
Annex II is hereby amended by adding the following definitions in their
respective alphabetical order:
EBITDA - means, with reference to any period, the sum of (a) Consolidated Net
Income for such period plus (b) the amount of (i) Interest Expense, (ii) total
federal state, local and foreign income, value added and similar taxes and (iii)
depreciation and amortization expense, all as determined in accordance with GAAP
applied on a consistent basis and only to the extent deducted in the
determination of Consolidated Net Income for such period.
EBITDAR - means, in respect of any period, the sum of (a) EBITDA for such period
plus (b) Rental Expense but only to the extent deducted in the determination of
EBITDA for such period.
Fixed Charges--means, with respect to any period, the sum of (a) Interest
Expense for such period and (b) Rental Expense for such period.
Fixed Charges Coverage Ratio - means, at any time, the ratio of (a) EBITDAR for
the period of four consecutive fiscal quarters ending on, or most recently ended
prior to, such time to (b) Fixed Charges for such period.
Interest Expense - means, with respect to any period, the sum (without
duplication) of the following (in each case, eliminating all offsetting debits
and credits between the Company and its Subsidiaries and all other items
required to be eliminated in the course of the preparation of consolidated
financial statements of the Company and its Subsidiaries in accordance with
GAAP): (a) all interest in respect of Debt of the Company and its Subsidiaries
(including imputed interest on Capital Lease Obligations) deducted in
determining Consolidated Net Income for such period, and (b) all debt discount
and expense amortized or required to be amortized in the determination of
Consolidated Net Income for such period.
Rental Expense - means, with respect to any period, the sum of the minimum
amount of rental obligations required to be paid during such period by the
Company or any Subsidiary as lessee under all leases of real or personal
property (other than Capital Leases).
3. NO OTHER MODIFICATIONS; CONFIRMATION .
All the provisions of the Notes, and, except as expressly waived, modified and
supplemented hereby, all the provisions of the Existing Note Agreement, are and
shall remain in full force and effect. As of the Effective Date (defined below),
all references in the Financing Documents to the "Note Agreement" shall be
references to the Existing Note Agreement, as modified by this Amendment and as
hereafter amended, modified or supplemented in accordance with its terms.
4. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants as follows to each holder of Notes as of the
date hereof and as of the Effective Date (as defined below):
4.1 No Other Defaults.
No Default or Event of Default has occurred and is continuing.
4.2 Senior Credit Agreement.
No unwaived Default or Event of Default (as defined in the Bank Agreement as of
the date hereof) has occurred or is continuing in respect of the Bank Agreement.
4.3 Obligations Remain Enforceable.
The execution, delivery and performance by the Company of this Amendment have
been duly authorized by all necessary corporate and other action and do not and
will not require any registration with, consent or approval of, notice to or
action by, any person (including any Governmental Authority) in order to be
effective and enforceable. The Note Agreement (as modified by this Amendment)
and the Notes constitute the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except that the
enforceability thereof may be limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws affecting the
enforceability of creditors' rights generally; and subject to the availability
of equitable remedies.
4.4 First Amendment Agreement Representations.
All representations and warranties of the Company contained in the First
Amendment Agreement (other than representations or warranties expressly made
only on and as of the date thereof or any earlier date) are true and correct as
of the date hereof.
4.5 Financial Information.
All financial statements delivered to the Purchasers by the Company pursuant to
the provisions of Section 7.1(a) and Section 7.1(b) of the Note Agreement since
the date of Closing were, and all information delivered to the Purchasers by the
Company pursuant to Section 7.1(d) of the Note Agreement since the date of
Closing was, true, complete and correct in all material respects as of the
respective dates of such information.
5. EFFECTIVENESS
This Amendment shall become effective only upon the date of the satisfaction in
full of the following conditions precedent (which date shall be the "Effective
Date").
5.1 Execution and Delivery of this Amendment.
Each Purchaser shall have received a counterpart hereof, duly executed and
delivered by the Company and each other Purchaser.
5.2 Representations and Warranties.
The representations and warranties of the Company made in Section 4 of this
Amendment shall remain true and correct in all respects as of the Effective
Date.
5.3 No Injunction, Etc.
No injunction, writ, restraining order or other order of any nature prohibiting,
directly or indirectly, the consummation of the transactions contemplated herein
shall have been issued and remain in force by any Governmental Authority.
5.4 Expenses.
The Company shall have paid all out-of-pocket expenses of the Purchasers in
connection with the execution and delivery of this Amendment, including, without
limitation, the fees and disbursements of Bingham Dana LLP, as special counsel
to the Required Holders.
6. MISCELLANEOUS
6.1 Section Headings.
The titles of the Sections of this Amendment appear as a matter of convenience
only, do not constitute a part hereof and shall not affect the construction
hereof. The words "herein," "hereof," "hereunder" and "hereto" refer to this
Amendment as a whole and not to any particular Section or other subdivision.
References to Sections are, unless otherwise specified, references to Sections
of this Amendment.
6.2 Governing Law.
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6.3 Successors and Assigns.
This Amendment shall inure to the benefit of and be binding upon the successors
and assigns of each of the parties hereto. The provisions hereof are intended to
be for the benefit of all holders, from time to time, of Notes, and shall be
enforceable by any such holder whether or not an express assignment to such
holder of rights hereunder shall have been made by any Purchaser or its
successor or assign.
6.4 Execution in Counterpart.
This Amendment 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.
[The remainder of this page has been left blank intentionally. The next page is
the signature page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
FRITZ COMPANIES, INC.
By:_____________________________________
Name:
Title
LINCOLN NATIONAL REASSURANCE COMPANY
By: Lincoln Investment Management, Inc., its
Attorney-in-Fact
By:_____________________________________
Name:
Title
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: Lincoln Investment Management, Inc., its
Attorney-in-Fact
By:_____________________________________
Name:
Title
REASSURE AMERICA LIFE
INSURANCE COMPANY
By: Swiss Re Investors, Inc.,
its Attorney-in-Fact
By:_____________________________________
Name:
Title
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
By:_____________________________________
Name:
Title
THE EQUITABLE OF COLORADO, INC.
By:_____________________________________
Name:
Title
GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY
By:_____________________________________
Name:
Title
By:_____________________________________
Name:
Title
AID ASSOCIATION FOR LUTHERANS
By:_____________________________________
Name:
Title
NATIONWIDE LIFE INSURANCE
COMPANY
By:_____________________________________
Name:
Title
NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
By:_____________________________________
Name:
Title
WEST COAST LIFE INSURANCE
COMPANY
By:_____________________________________
Name:
Title
TRANSAMERICA LIFE INSURANCE
AND ANNUITY COMPANY
By:_____________________________________
Name:
Title
AMERICAN STATES LIFE INSURANCE
COMPANY
By:_____________________________________
Name:
Title
MINNESOTA FIRE & CASUALTY
COMPANY
By:_____________________________________
Name:
Title
BERKSHIRE LIFE INSURANCE
COMPANY
By:_____________________________________
Name:
Title
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