Exhibit 10.23
FIRST AMENDMENT TO POST-PETITION
MULTICURRENCY SUPERPRIORITY CREDIT AGREEMENT
THIS FIRST AMENDMENT TO POST-PETITION MULTICURRENCY SUPERPRIORITY CREDIT
AGREEMENT, dated as of July 31, 2002 (this "Amendment"), amends the Post-
Petition Multicurrency Superpriority Credit Agreement, dated as of May 16, 2002
(the "Credit Agreement"), among AWP Ltd., Bermuda company number 32233, to be
renamed APW Ltd. (the "Borrower"), (as successor to APW Ltd., Bermuda company
number 28596, to be renamed BQX Ltd. ("Oldco")) a Bermuda company, the various
financial institutions parties thereto (collectively, the "Lenders"), Bank of
America, National Association, as Post-Petition Agent (in such capacity, the
"Post-Petition Agent") and U.S. Collateral Agent, Oaktree Capital Management,
LLC, as Lead Arranger and Book Manger and Royal Bank of Scotland, Plc, as Lead
Arranger and Book Manager and as U.K. Collateral Agent. Terms defined in the
Credit Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
WHEREAS, on May 16, 2002 (the "Commencement Date"), Oldco and its wholly
owned indirect subsidiary, Vero Electronics, Inc. (the "Debtors") filed with the
United States Bankruptcy Court for the Southern District of New York (the
"Bankruptcy Court") a voluntary petition for relief under chapter 11 of title
11, United States Code (the "Bankruptcy Code"); and
WHEREAS, on May 30, 2002, a proceeding was commenced pursuant to the
Companies ▇▇▇ ▇▇▇▇ with respect to Oldco in the Bermuda Supreme Court in
connection with a winding-up petition; and
WHEREAS, on May 30, 2002, the Bermuda court appointed ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇ of KPMG Bermuda and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ of KPMG, London, England as
joint provisional liquidators of Oldco;
WHEREAS, on July 23, 2002, the Bankruptcy Court entered a Confirmation
Order (the "Confirmation Order") confirming the Amended and Restated Plan of
Reorganization of the Debtors dated as of June 19, 2002 (as further amended,
modified or restated hereafter, the "Plan"); and
WHEREAS, pursuant to the terms of the Plan, all of the assets which were
to be retained by Reorganized APW (as defined the Plan) under the Plan shall be
and have been assigned by Oldco to Borrower and Borrower has accepted the
assignment of such assets, and all of the liabilities which were to be retained
by Reorganized APW under the Plan shall be and have been assigned by Oldco to
Borrower and Borrower has accepted the assignment of such liabilities;
WHEREAS, the Lenders agreed pursuant to the Credit Agreement to make
available to the Borrower a revolving credit facility of up to $110,000,000;
WHEREAS, the Lenders have agreed to extend the maturity of the Credit
Agreement, subject to the following terms and conditions.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. AMENDMENTS. Effective as of the date hereof, the Credit
Agreement shall be amended in accordance with Sections 1.1 through 1.9 below.
1.1 Additional Definitions. Section 1.1 of the Credit Agreement is
hereby amended by adding the following definitions in proper alphabetical order:
"Confirmation Order" means the order of the Bankruptcy Court
dated July 23, 2002 confirming the Plan."
"First Amendment" means the First Amendment to this Agreement,
dated as of July 31, 2002."
"Oldco" means APW Ltd., Bermuda company number 28596, to be
renamed BQX Ltd."
"Valencia Lease" means the lease agreement, dated as of
September 15, 1998, between Assex XV Holdings Company, L.L.C. as
Lessor, and Zero Corporation n/k/a APW North America, Inc. as
Lessee, as amended, together with the Ground Lease, the
Participation Agreement, the Loan Agreement and the other Operative
Documents, as amended (all as defined in such lease agreement),
relating to a synthetic lease of land and improvements located at
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇."
1.2 Amendment to Definitions.
(i) The definition of "Applicable Margin" in Section 1.1 of
the Credit Agreement is hereby amended to state in its entirety as
follows:
"Applicable Margin" means:
(i) 4.00% with respect to Tranche A Offshore Rate
Loans;
(ii) 2.00% with respect to Tranche A Base Rate Loans;
(iii) 4.75% with respect to Tranche B Offshore Rate
Loans and Tranche B Letters of Credit;
(iv) 2.75% with respect to Tranche B Base Rate Loans;
(v) 5.50% with respect to Tranche C Offshore Rate
Loans; and
(vi) 3.50% with respect to Tranche C Base Rate Loans;
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provided, that each of the percentages listed in clauses
(i)-(vi) above shall be increased by 0.50% on the date three
months after the date hereof and an additional 0.50% at each
three month interval thereafter."
(ii) The definition of "Borrower" in Section 1.1 of
the Credit Agreement is hereby amended to read in its entirety as
follows:
"Borrower" means AWP Ltd., Bermuda company number
32233, to be renamed APW Ltd."
(iii) The definition of "Computation Period" in
Section 1.1 of the Credit Agreement is hereby deleted.
(iv) The definition of "Consolidated Net Income" in
Section 1.1 of the Credit Agreement is hereby amended to state in
its entirety as follows:
"Consolidated Net Income" means, for any period, all
amounts which, in conformity with GAAP, would be included
under net income on a consolidated income statement of a
Person and its Subsidiaries for such period, exclusive of
Affiliate equity earnings, inclusive of Affiliate cash
dividends (to the extent of Affiliate equity earnings)."
(v) The definition of "Debt" in Section 1.1 of the
Credit Agreement is hereby amended by inserting the phase ";
provided, however, that neither the Valencia Lease nor the principal
amount of the Loan Notes shall constitute Debt hereunder." at the
end of the first sentence.
(vi) The definition of "Debtors" in Section 1.1 of the
Credit Agreement is hereby amended to read in its entirety as
follows:
"Debtors" means Oldco and Vero Electronics, Inc."
(vii) The definition of "EBITDA" in Section 1.1 of the
Credit Agreement is hereby amended to state in its entirety as
follows:
"EBITDA" means, for any period, the sum of (a)
Consolidated Net Income for such period, plus (b) the
aggregate amount deducted (or minus the aggregate amount
added) with respect to federal, state, local and foreign
income taxes in determining such Consolidated Net Income, plus
(c) Consolidated Interest Expense for such period (net of
consolidated interest income of a Person and its Subsidiaries
for such period), plus (d) depreciation and amortization for
such period, plus (e) to the extent deducted in determining
Consolidated Net Income, Reorganization Items for such period,
plus (f) to the extent deducted in determining Consolidated
Net Income, Restructuring Expenses for such period.
Items (b), (c), (d) and (e) above should be calculated
excluding any extraordinary and/or non-recurring gains or
losses which have been included in the calculation of
Consolidated Net Income. Such items may include, but are not
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limited to, any write down or impairment of assets of any
Person and its subsidiaries."
(viii) The definition of "EBITDARR" in Section 1.1 of
the Credit Agreement is hereby deleted.
(ix) The definition of "Excess Cash Flow" in Section
1.1 of the Credit Agreement is hereby amended to state in its
entirety as follows:
"Excess Cash Flow" means, for any Fiscal Year
(commencing on or after September 1, 2002), Consolidated Net
Income plus depreciation and amortization, minus capital
expenditures (excluding the financed portion thereof
(including with proceeds of equity, debt, asset sales or
insurance)), plus other non-cash charges (including with
respect to taxes) and Interest Expense to the extent deducted
in determining Consolidated Net Income plus decreases or minus
increases in Working Capital minus Interest Expense paid in
cash for such period, minus scheduled principal payments paid
in respect of Debt."
(x) The definition of "Fixed Charge Coverage Ratio"
in Section 1.1 of the Credit Agreement is hereby amended to state
in its entirety as follows:
"Fixed Charge Coverage Ratio" means for any period, for
the Borrower and its Subsidiaries on a consolidated basis, the
ratio of: (a) EBITDA minus the aggregate amount of all
expenditures of the Borrower and its Subsidiaries for fixed or
capital assets made during such period which, in accordance
with GAAP, would be classified as capital expenditures minus
payments on Capitalized Leases to (b) Interest Expense plus
scheduled principal payments on Debt.
(xi) The definition of "Impermissible Change in
Control" in Section 1.1 of the Credit Agreement is hereby amended
to state in its entirety as follows:
"Impermissible Change in Control" means at any time,
any Person or group of Persons acting in concert (other than
the existing equityholders on the effective date of the First
Amendment), which are unacceptable to the Majority Lenders,
have obtained control of more than 20% of the issued and
outstanding shares of voting stock of the Borrower."
(xii) The definition of "Intercreditor Agreement" in
Section 1.1 of the Credit Agreement is hereby amended to state in
its entirety as follows:
"Intercreditor Agreement" shall mean that Intercreditor
Agreement, dated as of July 31, 2002 in substantially the form
of Exhibit F."
(xiii) The definition of "Interest Coverage Ratio" in
Section 1.1 of the Credit Agreement is hereby deleted.
(xiv) The definition of "Interest Expense" in Section
1.1 of the Credit Agreement is hereby amended to state in its
entirety as follows:
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"Interest Expense" means, for any period, the
consolidated interest expense of the Borrower and its
Subsidiaries for such period, as determined in accordance with
GAAP and in any event including, without duplication, interest
on the Loan Notes paid by the Borrower or any of its
Subsidiaries, all commissions, discounts and other fees and
charges owed with respect to letters of credit and banker's
acceptances, net costs under interest rate protection
agreements, the portion of any Capital Leases allocable to
consolidated interest expense and losses and discounts
attributable to the sale of receivables and related assets,
but excluding, to the extent included therein, non-cash
amortization expenses.
(xv) The definition of "Leverage Ratio" in Section
1.1 of the Credit Agreement is hereby amended to state in its
entirety as follows:
"Leverage Ratio" means on any date, for the Borrower
and its Subsidiaries on a consolidated basis the ratio of (a)
Total Debt on such date to (b) EBITDA for the twelve month
period then ending."
(xvi) The definition of "Loan Notes" in Section 1.1
of the Credit Agreement is hereby amended to state in its entirety
as follows:
"Loan Notes" means (a) Deed Constituting Floating Rate
Unsecured Loan Notes 2008, dated June 19, 1998, as amended, by
Applied Power Limited and National Westminster Bank PLC, (b)
Deed Constituting Floating Rate Unsecured Loan Notes 2003,
dated October 13, 1998 as amended, by APW Enclosure Systems
Limited and National Westminster Bank PLC, (c)
Counter-Indemnity Agreement, dated on or about May 25, 2001 by
and among APW and National Westminster Bank PLC, (d) the
Payment Agreement dated June 28, 2002 with National
Westminster Bank, PLC and (e) all notes, guaranties, pledges,
and other agreements and documents given or issued pursuant
thereto or in connection therewith."
(xvii) The definition of "Permitted Liens" in Section
1.1 of the Credit Agreement is hereby amended by inserting the
following phrase at the end of the definition:
"(j) other Liens securing obligations permitted
under Sections 11.22(d) or (e)."
(xviii) The definition of "Restructuring Consultant" in
Section 1.1 of the Credit Agreement is hereby deleted.
(xix) The definition of "Stated Termination Date" in
Section 1.1 of the Credit Agreement is hereby amended to state in
its entirety as follows:
"Stated Termination Date" means (a) with respect to the
Tranche A Loans and the Tranche A Commitment, November 15,
2003; (b) with respect to the Tranche B Loans, the Tranche B
Letters of Credit and the Tranche B
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Commitment, November 15, 2003; and (c) with respect to the
Tranche C Loans and the Tranche C Commitment, May 15, 2004."
(xx) The definition of "Tangible Net Assets" in
Section 1.1 of the Credit Agreement is hereby deleted.
(xxi) The definition of "Working Capital" in Section
1.1 of the Credit Agreement is hereby amended to state in its
entirety as follows:
"Working Capital" means consolidated current assets of
the Borrower and its Subsidiaries (excluding cash and Cash
Equivalents) minus consolidated current liabilities of the
Borrower and its Subsidiaries (excluding the current portion
of any long term Debt including loans under the Loan
Documents)."
1.3 Amendments to Guaranties and Collateral.
(i) Section 7.2(c)(v) of the Credit Agreement is
hereby amended by inserting the phrase "and payments hereunder,
under the Loan Documents and under the Pre-Petition Credit
Agreement" at the end of such Section.
(ii) Section 7.2(c)(vi) of the Credit Agreement is
hereby amended by deleting the reference to "$2,000,000" where it
appears in such Section and replacing it with "$5,000,000."
1.4 Amendments to Priority of Payments, Taxes, Yield
Protection and Illegality.
(i) Section 8.1 (Second)(i) of the Credit Agreement
is hereby amended by inserting a comma and the word "indemnities"
after the word "fees" where it appears in such Section.
1.5 Amendments to Representations and Warranties.
(i) Section 10.4 of the Credit Agreement is hereby
amended by deleting all references to "the Borrower" where they
appear in such Section and replacing all such references with
"Oldco."
1.6 Amendments to Covenants.
(i) Section 11.1(c) of the Credit Agreement is
hereby amended by inserting the words ", calculating compliance
with Section 11.6(a)" at the end of such section.
(ii) Section 11.1(d) of the Credit Agreement is
hereby amended to state in its entirety as follows:
"Monthly Cash Flow Forecast. On or before the
first Thursday that is on or following the 15/th/ of each
month, in form and substance
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acceptable to the Majority Lenders, a rolling four week
cash flow forecast plus three additional months for the
Borrower and its Subsidiaries on a consolidated basis in
reasonable detail."
(iii) Section 11.1(e) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"RESERVED."
(iv) Section 11.1(f) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"Comparison Reports. On or before the first Thursday
that is on or following the 15/th/ day of each month, the
actual cash receipts and disbursements for the previous
month with a comparison report explaining variances between
projections and actual results."
(v) Section 11.1(g) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"Forecast. Within 30 days after end of each fiscal
quarter, a consolidated income statement, balance sheet and
cash flow forecast for the following eight fiscal quarters
on a quarter by quarter basis."
(vi) Section 11.1(k) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"RESERVED"
And all references to such Section shall be deleted.
(vii) Section 11.1(m) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"RESERVED"
And all references to such Section shall be deleted.
(viii) Section 11.1(n) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"RESERVED"
And all references to such Section shall be deleted.
(ix) Section 11.1(p) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"On or before the first Thursday that is on or
following the 15/th/ day of each month, or more frequently
if requested by the Majority Lenders, a Borrowing Base
Certificate as of the end of the previous month with such
detail as may be requested by the Majority Lenders."
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(x) Section 11.6 of the Credit Agreement is hereby
amended to state in its entirety as follows:
"Financial Ratios and Restrictions.
(a) Financial Covenants:
(i) The Borrower and its Subsidiaries
shall have EBITDA (A) as at the end of each fiscal
month through August 31, 2003 for the twelve fiscal
months then ending and (B) as at the end of each
fiscal quarter thereafter, for the four fiscal
quarters then ending, of not less than the amounts
set forth on Schedule 11.6(a)(i).
(ii) The Borrower shall not permit the
consolidated Capital Expenditures for the Borrower
and its Subsidiaries (A) computed as at the end of
each fiscal quarter on a cumulative basis from June
1, 2002 to the end of such fiscal quarter through
August 31, 2003 and (B) for each fiscal year ending
on or after August 31, 2004, to exceed the amount
set forth in Schedule 11.6(a)(ii).
(iii) The Borrower shall have revenue
amounts for itself and its Subsidiaries (A) as at
any month end on or prior to August 31, 2003 for the
three months then ending and (B) as at any fiscal
quarter end thereafter for the four fiscal quarter
period then ending, not less than the amount set
forth in Schedule 11.6(a)(iii).
(iv) The Borrower shall not permit its
Fixed Charge Coverage Ratio (A) as at any fiscal
month end on or prior to August 31, 2003 for the
twelve months then ending and (B) as at any fiscal
quarter end thereafter for such quarter to be less
than the ratio set forth in Schedule 11.6(a)(iv) for
the four fiscal quarters then ending set forth in
said Schedule.
(v) The Borrower shall not permit its
Leverage Ratio (A) as at any fiscal month end on or
prior to August 31, 2003 for the twelve months then
ending and (B) as at any fiscal quarter end
thereafter for the four fiscal quarters then ending
to be greater than the amount set forth in Schedule
11.6(a)(v); provided, that if the Leverage Ratio
listed in Schedule 11.6(a)(v) is negative because
EBITDA is a negative number, then the Borrower shall
cause the ratio to be a positive amount, or a
negative amount less (i.e. further from zero) than
the number listed on such Schedule.
(vi) The Borrower shall not permit the Cash
Restructuring Expenses for it and its Subsidiaries
for the period from the date hereof through August
31, 2003 to exceed
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$15,000,000. The Borrower and its Subsidiaries shall
not incur any Cash Restructuring Expenses after
August 31, 2003.
(b) Adjustments. In connection with any sale of
assets permitted by this Agreement or consented to by the
Majority Lenders and assuming application of Net Proceeds
as required hereunder, the covenants under this Section
11.6 shall be adjusted, with the amount of such adjustment
determined by mutual agreement of the Majority Lenders and
the Borrower."
(xi) Section 11.17 of the Credit Agreement is hereby
amended to state in its entirety as follows:
"Transactions with Affiliates. Not, and not permit any
Subsidiary to, enter into or permit to exist any transaction,
arrangement or contract with any of its Affiliates or any officer
or director of the Borrower or any Affiliate which is on terms
less favorable than would be available from a Person which is not
an Affiliate. Nothing in this Section 11.17 shall prohibit any
transaction expressly permitted by Section 7.2(c), Section 11.7,
Section 11.20(a) or Section 11.21 or payments made under this
Agreement or the Pre-Petition Credit Agreement."
(xii) Section 11.18 of the Credit Agreement is hereby
amended to state in its entirety as follows:
"The Borrower's and Subsidiaries' Stock. Except pursuant to
transactions permitted by Section 11.7, not take any action, or
permit any of its Subsidiaries to take any action, which will, so
long as any shares of capital stock or indebtedness of any
corporation which is a Subsidiary at the date of this Agreement
are owned by the Borrower or any Subsidiary, result in a decrease
in the percentage of the outstanding shares in capital stock of
such corporation owned at the date of this Agreement by the
Borrower and its Subsidiaries."
(xiii) Section 11.21 of the Credit Agreement is hereby
amended to state in its entirety as follows:
"Loans and Investments. Not purchase or acquire, or suffer
or permit any Subsidiary to purchase or acquire, or make any
commitment therefor, any capital stock, equity interest, or any
obligations or other securities of, or any interest in, any other
Person, or make or commit to make any advance, loan, extension of
credit or capital contribution to or any other investment in, any
Person including any Affiliate of the Borrower, except for:
(a) the Guaranties;
(b) investments in Cash Equivalents;
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(c) extensions of credit in the nature of
accounts receivable or notes receivable arising from the
sale or lease of goods or services in the ordinary course
of business;
(d) Loans by the Borrower to, and investments by
the Borrower in, any of its Subsidiaries or by any of its
Subsidiaries in another of its Subsidiaries, except as
prohibited under Article VII;
(e) loans and investments permitted under Section
7.2(c);
(f) transactions permitted under Section 11.7;
(g) the purchase by the Borrower from Applied
Power Credit Corporation or ▇▇▇▇▇▇ Capital Corporation of
the receivables subject to the Receivables Securitization;
and
(h) transactions contemplated under the ▇▇▇▇ of
Sale, Assignment and Assumption Agreement, dated as of July
31, 2002, between Oldco and the Borrower."
(xiv) Section 11.22 of the Credit Agreement is hereby
amended to state in its entirety as follows:
"Limitation on Debt and Subsidiary Debt. Not, and shall not
suffer or permit any Subsidiary to, create, incur, assume, suffer
to exist, or otherwise become or remain directly or indirectly
liable with respect to any Debt of the Borrower and Subsidiaries
other than
(a) Pre-Petition Debt (or upon the effective date
of the Plan or Reorganization, the new term debt to be
issued pursuant to such plan in partial reinstatement of
the Pre-Petition Debt);
(b) the Obligations;
(c) Debt to RBS or National Westminister Bank PLC
in connection with any foreign exchange facilities or BACS
facilities not to exceed $1,000,000;
(d) Debt under Capital Leases existing on the
date hereof and listed on Schedule 11.22(d);
(e) additional Debt not to exceed $15,000,000 at
any time outstanding; and
(f) Debt to the Borrower or a Subsidiary to the
extent the loan by the Borrower or Subsidiary would be
permitted under Section 11.21."
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(xv) Section 11.23 of the Credit Agreement is hereby
amended by inserting the following clause at the end of such section:
"(c) cash payments to redeem warrants representing the
right to receive fractional shares of capital stock of the
Borrower pursuant to the Plan."
1.7 Amendments to Events of Default.
(i) Section 12.1(b) of the Credit Agreement is hereby
amended by deleting the parenthetical phrases "(excluding Debt of the
Borrower incurred prior to the Commencement Date)" and "(other than the
obligations of the Debtors incurred prior to the Commencement Date)" where
they appear in such Section.
(ii) Section 12.1(d) of the Credit Agreement is hereby
amended by deleting the reference to "Section 11.1(e)" where it appears in
such section.
(iii) Section 12.1(g) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"Bankruptcy, Insolvency, etc. The Borrower or any of the
Subsidiaries of the Borrower (other than any Dissolution Subsidiary)
becomes insolvent or generally fails to pay, or admits in writing
its inability to pay, debts as they become due; or the Borrower or
any such Subsidiaries (other than any Dissolution Subsidiary)
applies for, consents to or acquiesces in the appointment of a
trustee, receiver or other custodian for the Borrower or such
Subsidiary (other than any Dissolution Subsidiary) or any property
thereof, or makes a general assignment for the benefit of creditors;
or, in the absence of such application, consent or acquiescence, a
trustee, receiver or other custodian is appointed for the Borrower
or any of the Subsidiaries of the Borrower (other than any
Dissolution Subsidiary) or for a substantial part of its property
and is not discharged within 30 days; or any bankruptcy,
reorganization, debt arrangement or other case or proceeding under
any bankruptcy or insolvency law, or any dissolution or liquidation
proceeding (except the voluntary dissolution, not under any
bankruptcy or insolvency law, of a Subsidiary), is commenced in
respect of the Borrower or any of the Subsidiaries of the Borrower,
and, if such case or proceeding is not commenced by such Subsidiary,
it is consented to or acquiesced in by such Subsidiary or remains
for 30 days undismissed or an order for relief is entered in any
such involuntary bankruptcy; or the Borrower or any Subsidiary of
the Borrower takes any corporate action to authorize, or in
furtherance of, any of the foregoing."
(iv) Section 12.1(q) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"Judgments. Final judgments which exceed an aggregate of
$2,000,000 (excluding any portion thereof which is covered by
insurance maintained with a responsible insurance company which has
accepted a tender of defense and
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indemnification without reservation of rights) shall be rendered
against the Borrower or any of the Subsidiaries of the Borrower and
shall not have been discharged or vacated or had execution thereof
stayed pending appeal within 30 days after entry or filing of such
judgments."
(v) Section 12.1(r) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"RESERVED."
(vi) Section 12.1(t) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"Confirmation Order. The Confirmation Order shall be vacated,
modified, or otherwise altered or stayed after the effective date of
the First Amendment and the effect thereof shall be adverse to the
rights of the Lenders hereunder or under any of the Loan Documents,
in the opinion of the Majority Lenders or to the rights of the
Post-Petition Agent hereunder or under any of the Loan Documents in
the opinion of the Post-Petition Agent."
(vii) Section 12.1(y) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"Change in Management. Ninety days shall have elapsed after
▇▇▇▇▇▇▇ ▇. Sim or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall have ceased to have
substantially the same duties and responsibilities as such
individual has as of the effective date of the First Amendment in
connection with the management of the Borrower and the Subsidiaries
and such individual shall not have been replaced with an individual
approved by the Majority Lenders."
(viii) Section 12.1(bb) of the Credit Agreement is hereby
amended to state in its entirety as follows:
"(i) Any provision of any Collateral Document
shall for any reason (except as a result of any action
or inaction on the part of any Lender or the
Post-Petition Agent) cease to be valid and binding on
or enforceable against the Borrower or any Subsidiary
party thereto or the Borrower or any Subsidiary shall
so state in writing or bring an action to limit its
obligations or liabilities thereunder; or
(ii) Any Collateral Document or Collateral
Documents shall for any reason (except as a result of
any action or inaction on the part of any Lender or
the Post-Petition Agent or pursuant to the terms
thereof) cease to create a valid security interest in
the Collateral purported to be covered thereby or such
security interest shall for any reason cease to be a
perfected and first priority security interest, if the
effect thereof is to cause Collateral having
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an aggregate value in excess of $2,000,000 to no longer be
covered by a perfected and first priority security interest."
1.8 Amendment to Automatic Extension Article.
(i) Article XIII of the Credit Agreement is hereby deleted
as well as deleting all references to Article XIII or any Section of
Article XIII throughout the Credit Agreement.
1.9 Amendments to Schedules and Exhibits.
(i) Schedule 1.2 of the Credit Agreement is hereby amended
to state in its entirety as set forth on Schedule 1.2 attached hereto
(ii) Schedule 11.6 of the Credit Agreement is hereby
amended to state in its entirety as set forth on Schedule 11.6 attached
hereto.
(iii) Schedule 13.3 of the Credit Agreement is hereby
deleted.
(iv) Exhibit F of the Credit Agreement is hereby amended to
read in its entirety as provided in Exhibit F hereto.
SECTION 2. ASSIGNMENT AND ASSUMPTION. The Borrower hereby assumes from
Oldco and Oldco hereby assigns to Borrower all rights, duties and obligations
under the Credit Agreement, as hereby amended and all other Loan Documents to
which it is a party.
SECTION 3. CONDITIONS PRECEDENT. This Amendment shall become effective when
each of the conditions precedent set forth in this Section 3 shall have been
satisfied, and notice thereof shall have been given by the Post-Petition Agent
to the Borrower and the Lenders.
3.1 Receipt of Documents. The Post-Petition Agent shall have
received all of the following documents duly executed, dated the date hereof or
such other date as shall be acceptable to the Arrangers, and in form and
substance satisfactory the Arrangers:
(a) Amendment. This Amendment, duly executed by the Borrower, the
Post-Petition Agent and the Lenders.
(b) Consents. Consents of all Guarantors hereto.
(c) Amendment and Confirmation. An amendment and confirmation (the
"Amendment and Confirmation") with respect to the Collateral Documents and
Guaranties in substantially the form attached as Exhibit A.
(d) Organizational Documents and Resolutions of Borrower.
Certified copies of organizational documents of the Borrower and resolutions of
the Board of Directors of the Borrower authorizing or ratifying the execution,
delivery and performance by the Borrower of
13
this Amendment and the other documents provided for in this Amendment to be
executed by the Borrower.
(e) Incumbency and Signatures of Borrower. A certificate of the
Secretary, an Assistant Secretary or a comparable officer of the Borrower
certifying the names of the officer, officers or other authorized
representatives of the Borrower authorized to sign this Amendment and the other
documents provided for in this Agreement to be executed by the Borrower,
together with a sample of the true signature of each such officer or authorized
representative (it being understood that the Post-Petition Agent and each Lender
may conclusively rely on such certificate until formally advised by a like
certificate of any changes therein).
(f) Resolutions of Guarantors. With respect to the Guarantors,
certified copies of resolutions of the Board of Directors of each Guarantor
authorizing or ratifying the execution, delivery and performance by such
Guarantor of the Amendment and Confirmation and the other documents provided for
in this Amendment to be executed by such Guarantor.
(g) Incumbency and Signatures of Guarantors. With respect to
Guarantors, a certificate of the Secretary, an Assistant Secretary or a
comparable officer of each Guarantor certifying the names of the officer,
officers or other authorized representatives of such Guarantor authorized to
sign the documents provided for in this Amendment to be executed by such
Guarantor, together with a sample of the true signature of each such officer or
authorized representative (it being understood that the Post-Petition Agent and
each Lender may conclusively rely on such certificate until formally advised by
a like certificate of any changes therein).
(h) Opinions. Legal opinions acceptable to the Majority Lenders.
(i) Certificate. A certificate executed by the chief financial
officer, treasurer or other duly authorized officer of the Borrower stating,
among other things that, as of the effective date hereof, (i) no Default or
Event of Default unrelated to the confirmation of the Plan shall be existing as
of the effective date of such Plan, (ii) all representations and warranties
contained in the Credit Agreement, as hereby amended, are true and correct,
(iii) the Borrower is Solvent, (iv) the Borrower is in compliance with all
covenants set forth in the Credit Agreement, as hereby amended, (v) the Borrower
has used its best efforts to obtain exit financing and (vi) the Plan has been
consummated in accordance with the terms thereof; and
(j) Assumption. Evidence satisfactory to the Lenders that the
assets of Oldco have been transferred to the Borrower in connection with the
Plan, the Borrower and its financial condition shall be satisfactory to all the
Lenders, and the Borrower shall have assumed all obligations of the Oldco and
the Oldco shall have assigned all the rights to the Borrower, in form and
substance satisfactory to all the Lenders.
(k) Confirmation Order. The Confirmation Order confirming the
Plan, which shall contain nothing which purports to or could reasonably be
interpreted to alter adversely affect or to revise, modify any of the
outstanding Obligations or the Liens related thereto.
14
(l) Collateral Documents. Such Collateral Documents and
amendments to Collateral Documents as the Arrangers may reasonably request.
3.2 Fees. All accrued and unpaid fees, costs and expenses to the
extent then due and payable shall have been paid by the Borrower.
SECTION 4. REPRESENTATIONS AND WARRANTIES. To induce the Lenders and the
Post-Petition Agent to enter into this Amendment, the Borrower hereby reaffirms,
as of the date hereof, its representations and warranties contained in the
Credit Agreement and the other Loan Documents, and the Borrower additionally
represents and warrants to the Post-Petition Agent and each Lenders as follows:
4.1 Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Amendment are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporation action, and do not:
(a) contravene the Borrower's Organic Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the Borrower; or
(c) result in, or require the creation or imposition of, any Lien
on any of the Borrower's properties.
4.2 Governmental Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by the Borrower of this Amendment.
4.3 Validity, etc. This Amendment constitutes the legal, valid and
binding obligation of the Borrower enforceable in accordance with its terms,
except to the extent enforceability thereof is limited by bankruptcy, insolvency
or other laws relating to, or affecting enforcement of, creditors' rights in
general, and general principles of equity.
4.4 Investment Business. Neither the Borrower nor any of its
Subsidiaries carries on, or will carry on, any activities, other than
performance of the Obligations, which would constitute the carrying on of
investment business in or from within Bermuda.
SECTION 5. MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. This Amendment shall be deemed
to be an amendment to the Credit Agreement, and the Credit Agreement, as amended
hereby, shall remain in full force and effect and is hereby ratified, approved
and confirmed in each and every respect. After the effectiveness of this
Amendment in accordance with its terms, all references to the Credit Agreement
in the Loan Documents or in any other document, instrument, agreement or writing
shall be deemed to refer to the Credit Agreement as amended hereby.
15
5.2 Payment of Costs and Expenses. The Borrower agrees to pay on
demand all expenses of the Post-Petition Agent (including the fees and
out-of-pocket expenses of counsel to the Post-Petition Agent) in connection with
the negotiation, preparation, execution and delivery of this Amendment.
5.3 Severability. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
5.4 Headings. The various headings of this Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
5.5 Execution in Counterparts. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
5.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
5.7 Successors and Assigns. This Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
[SIGNATURES TO FOLLOW]
16
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
AWP LTD.
By:_________________________________
Name:
Title:
BANK OF AMERICA, NATIONAL ASSOCIATION, as
Post-Petition Agent and as U.S. Collateral Agent
By:_________________________________
Name:
Title:
GSC RECOVERY II, L.P.
By: GSC Recovery II GP, L.P., its general partner
By: GSC RII, LLC, its general partner
By: GSCP (NJ) Holdings, L.P., its sole member
By: GSCP (NJ), Inc., its general partner
By:_________________________________
Name:
Title:
First Amendment to Post-Petition Credit
Agreement
GSC RECOVERY IIA, L.P.
By: GSC Recovery IIA GP, L.P., its general partner
By: GSC RII, LLC, its general partner
By: GSCP (NJ) Holdings, L.P., its sole member
By: GSCP (NJ), Inc., its general partner
By:_________________________________
Name:
Title:
OAKTREE CAPITAL MANAGEMENT LLC, as Arranger
By:_________________________________
Name:
Title:
OCM PRINCIPAL OPPORTUNITIES FUND II, L.P. by Oaktree
Capital Management, LLC, its General Partner
By:_________________________________
Name:
Title:
OCM OPPORTUNITIES FUND III, L.P. by Oaktree Capital
Management, LLC, its General Partner
By:_________________________________
Name:
Title:
OCM OPPORTUNITIES FUND IV, L.P. by Oaktree Capital
Management,LLC, its General Partner
By:_________________________________
Name:
Title:
First Amendment to Post-Petition Credit
Agreement
▇'▇▇▇▇▇▇ DISTRESSED TRADING MASTER LTD.,
by UBS ▇'▇▇▇▇▇▇ LLC, its investment
advisor
By:_________________________________
Name:
Title:
PERRY PRINCIPALS, L.L.C.
By:_________________________________
Name:
Title:
ROYAL BANK OF SCOTLAND, PLC, as Arranger,
as U.K. Collateral Agent and as a Bank
By:_________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & SONS SPECIAL SITUATIONS
PARTNERS II, L.P.
By:_________________________________
Name:
Title:
First Amendment to Post-Petition Credit
Agreement
Agreement and Consent
The undersigned Guarantors hereby agree and consent, as of the date and
year first written above, to the terms and provisions of the First Amendment to
the Post-Petition Multicurrency Superpriority Credit Agreement and agree that
the Loan Documents executed by the undersigned Guarantors shall remain in full
force and effect.
AIR CARGO EQUIPMENT (UK) LIMITED
By: __________________________________
Name:
Title:
APPLIED POWER CREDIT CORPORATION
By: __________________________________
Name:
Title:
APPLIED POWER LIMITED
By: __________________________________
Name:
Title:
APW BRASIL LTDA.
By: __________________________________
Name:
Title:
APW ELECTRONICS GROUP PLC
By: __________________________________
Name:
Title:
APW ELECTRONICS GMBH
By: __________________________________
Name:
Title:
Guarantor Consent to First Amendment to
Post-Petition Credit Agreement
APW ELECTRONICS LIMITED
By: __________________________________
Name:
Title:
APW ELECTRONICS OVERSEAS INVESTMENTS LIMITED
By: __________________________________
Name:
Title:
APW ENCLOSURE PRODUCTS AND SYSTEMS LIMITED
By: __________________________________
Name:
Title:
APW ENCLOSURE SYSTEMS (UK) LIMITED
By: __________________________________
Name:
Title:
APW ENCLOSURE SYSTEMS HOLDING, INC.
By: __________________________________
Name:
Title:
APW ENCLOSURE SYSTEMS HOLDINGS LIMITED
By: __________________________________
Name:
Title:
APW ENCLOSURES SYSTEMS, LP by APW Enclosure
Systems Holding, Inc., its General Partner
By: __________________________________
Name:
Title:
Guarantor Consent to First Amendment to
Post-Petition Credit Agreement
APW ENCLOSURE SYSTEMS PLC
By: __________________________________
Name:
Title:
APW ENCLOSURE SYSTEMS, INC.
By: __________________________________
Name:
Title:
APW ENCLOSURES (DUBLIN) LIMITED
By: __________________________________
Name:
Title:
APW ENCLOSURES LIMITED
By: __________________________________
Name:
Title:
APW FINANCE LIMITED
By: __________________________________
Name:
Title:
APW GALWAY LIMITED
By: __________________________________
Name:
Title:
APW HOLDING B.V.
By: __________________________________
Name:
Title:
Guarantor Consent to First Amendment to
Post-Petition Credit Agreement
APW HOLDINGS (EUROPE) LTD.
By: __________________________________
Name:
Title:
APW HOLDINGS (UK) LTD.
By: __________________________________
Name:
Title:
APW INVESTMENTS UK LIMITED
By: __________________________________
Name:
Title:
APW MAYVILLE LLC
By: __________________________________
Name:
Title:
APW MAYVILLE Ltd
By: __________________________________
Name:
Title:
APW NETHERLANDS B.V.
By: __________________________________
Name:
Title:
APW NEW FOREST LIMITED
By: __________________________________
Name:
Title:
Guarantor Consent to First Amendment to
Post-Petition Credit Agreement
APW NORTH AMERICA, INC.
By: __________________________________
Name:
Title:
APW POWER SUPPLIES AS
By: __________________________________
Name:
Title:
APW POWER SUPPLIES LTD.
By: __________________________________
Name:
Title:
APW PRODUCTS AND SYSTEMS B.V.
By: __________________________________
Name:
Title:
APW ▇▇▇▇▇▇ LINE LLC
By: __________________________________
Name:
Title:
APW-ERIE, INC.
By: __________________________________
Name:
Title:
ASPEN MOTION TECHNOLOGIES INC.
By: __________________________________
Name:
Title:
Guarantor Consent to First Amendment to
Post-Petition Credit Agreement
BEELEY WOOD HOLDINGS LTD
By: __________________________________
Name:
Title:
C FAB DEVELOPMENTS LTD.
By: __________________________________
Name:
Title:
CIPRESMAD-CONSULTORES E SERVICOS LDA
By: __________________________________
Name:
Title:
CIPRESMAD HUNGARY GROUP FINANCING LLC
By: __________________________________
Name:
Title:
▇▇▇▇ INDUSTRIES INC.
By: __________________________________
Name:
Title:
ELECTRONIC SOLUTIONS
By: __________________________________
Name:
Title:
HIGH SPEED PRODUCTION (HOLDINGS) LTD
By: __________________________________
Name:
Title:
Guarantor Consent to First Amendment to
Post-Petition Credit Agreement
▇▇▇▇▇▇▇▇ ELECTRONICS LIMITED
By: __________________________________
Name:
Title:
▇▇▇▇▇▇▇▇ SECURITY SYSTEMS LTD.
By: __________________________________
Name:
Title:
HSP SHEFFIELD LTD
By: __________________________________
Name:
Title:
HSP STRATHCLYDE LTD
By: __________________________________
Name:
Title:
▇▇▇▇▇-BEDCO LTD
By: __________________________________
Name:
Title:
▇▇▇▇▇-BEDCO SPECIAL PRODUCTS LTD
By: __________________________________
Name:
Title:
▇▇▇▇▇-BEDCO STANDARD PRODUCTS
By: __________________________________
Name:
Title:
Guarantor Consent to First Amendment to
Post-Petition Credit Agreement
INNOVATIVE METAL FABRICATION, INC.
By: __________________________________
Name:
Title:
J ▇▇▇▇▇▇▇ MANUFACTURING (IRELAND) LTD.
By: __________________________________
Name:
Title:
▇▇▇▇▇▇ MIDWEST CORPORATION
By: __________________________________
Name:
Title:
▇▇▇▇▇▇ WEST INC.
By: __________________________________
Name:
Title:
PRECISION FABRICATION TECHNOLOGIES INC.
By: __________________________________
Name:
Title:
TOWERFLAME LIMITED
By: __________________________________
Name:
Title:
▇▇▇▇▇▇ LINE EUROPE B.V.
By: __________________________________
Name:
Title:
Guarantor Consent to First Amendment to
Post-Petition Credit Agreement
▇▇▇▇▇▇ LINE LIMITED
By: __________________________________
Name:
Title:
ZERO-EAST DIVISION, ZERO CORPORATION
By: __________________________________
Name:
Title:
Guarantor Consent to First Amendment to
Post-Petition Credit Agreement
Schedule 1.2
[To be Attached]
[Will be the same as the Disclosure Schedule to the Term Loan Agreement (with
the appropriate Item numbers)]
1.2-1
Schedule 11.6
Schedule 11.6(a)(i)
EBITDA Covenant
--------------------------
Jun-02 5,991
--------------------------
Jul-02 (6,767)
--------------------------
Aug-02 (10,624)
--------------------------
Sep-02 (10,425)
--------------------------
Oct-02 (9,719)
--------------------------
Nov-02 (10,587)
--------------------------
Dec-02 (8,434)
--------------------------
Jan-03 (6,440)
--------------------------
Feb-03 (4,515)
--------------------------
Mar-03 (1,852)
--------------------------
Apr-03 2,641
--------------------------
May-03 5,421
--------------------------
Jun-03 11,960
--------------------------
Jul-03 21,589
--------------------------
Aug-03 25,344
--------------------------
▇▇ ▇▇▇▇ 33,171
--------------------------
▇▇ ▇▇▇▇ 40,723
--------------------------
▇▇ ▇▇▇▇ 41,791
--------------------------
▇▇ ▇▇▇▇ 43,367
--------------------------
▇▇ ▇▇▇▇ 49,021
--------------------------
▇▇ ▇▇▇▇ 54,787
--------------------------
▇▇ ▇▇▇▇ 61,400
--------------------------
▇▇ ▇▇▇▇ 69,095
--------------------------
▇▇ ▇▇▇▇ 72,058
--------------------------
▇▇ ▇▇▇▇ 77,154
--------------------------
▇▇ ▇▇▇▇ 78,386
--------------------------
▇▇ ▇▇▇▇ 75,605
--------------------------
▇▇ ▇▇▇▇ 80,179
--------------------------
▇▇ ▇▇▇▇ 84,752
--------------------------
▇▇ ▇▇▇▇ 89,326
--------------------------
Q4 2007 93,899
--------------------------
11.6-1
Schedule 11.6(a)(ii)
Capital Expenditure Covenant
--------------------------
Jun-02
--------------------------
Jul-02
--------------------------
Aug-02 5,250
--------------------------
Sep-02
--------------------------
Oct-02
--------------------------
Nov-02 9,975
--------------------------
Dec-02
--------------------------
Jan-03
--------------------------
Feb-03 14,700
--------------------------
Mar-03
--------------------------
Apr-03
--------------------------
May-03 19,950
--------------------------
Jun-03
--------------------------
Jul-03
--------------------------
Aug-03 25,200
--------------------------
▇▇ ▇▇▇▇
--------------------------
Q2 2004
--------------------------
▇▇ ▇▇▇▇
--------------------------
Q4 2004 26,250
--------------------------
Q1 2005
--------------------------
Q2 2005
--------------------------
▇▇ ▇▇▇▇
--------------------------
Q4 2005 31,500
--------------------------
Q1 2006
--------------------------
Q2 2006
--------------------------
▇▇ ▇▇▇▇
--------------------------
Q4 2006 39,900
--------------------------
Q1 2007
--------------------------
Q2 2007
--------------------------
▇▇ ▇▇▇▇
--------------------------
Q4 2007 43,050
--------------------------
11.6-2
Schedule 11.6(a)(iii)
Revenue Covenant
---------------------------
Jun-02 218,212
---------------------------
Jul-02 205,807
---------------------------
Aug-02 194,370
---------------------------
Sep-02 189,650
---------------------------
Oct-02 191,250
---------------------------
Nov-02 190,000
---------------------------
Dec-02 183,350
---------------------------
Jan-03 180,500
---------------------------
Feb-03 180,500
---------------------------
Mar-03 190,000
---------------------------
Apr-03 204,250
---------------------------
May-03 218,500
---------------------------
Jun-03 228,000
---------------------------
Jul-03 228,000
---------------------------
Aug-03 228,000
---------------------------
▇▇ ▇▇▇▇ 850,250
---------------------------
▇▇ ▇▇▇▇ 883,500
---------------------------
▇▇ ▇▇▇▇ 893,000
---------------------------
▇▇ ▇▇▇▇ 907,250
---------------------------
▇▇ ▇▇▇▇ 940,500
---------------------------
▇▇ ▇▇▇▇ 973,750
---------------------------
▇▇ ▇▇▇▇ 1,011,750
---------------------------
▇▇ ▇▇▇▇ 1,054,500
---------------------------
▇▇ ▇▇▇▇ 1,093,688
---------------------------
▇▇ ▇▇▇▇ 1,142,375
---------------------------
▇▇ ▇▇▇▇ 1,172,063
---------------------------
▇▇ ▇▇▇▇ 1,182,750
---------------------------
▇▇ ▇▇▇▇ 1,213,625
---------------------------
▇▇ ▇▇▇▇ 1,244,500
---------------------------
▇▇ ▇▇▇▇ 1,275,375
---------------------------
Q4 2007 1,306,250
---------------------------
11.6-3
Schedule 11.6(a)(iv)
Fixed Charge Coverage Covenant
--------------------------
Jun-02 (0.39)
--------------------------
Jul-02 (0.67)
--------------------------
Aug-02 (0.83)
--------------------------
Sep-02 (0.90)
--------------------------
Oct-02 (0.95)
--------------------------
Nov-02 (1.07)
--------------------------
Dec-02 (1.13)
--------------------------
Jan-03 (1.19)
--------------------------
Feb-03 (1.43)
--------------------------
Mar-03 (1.78)
--------------------------
Apr-03 (2.03)
--------------------------
May-03 (1.64)
--------------------------
Jun-03 (1.04)
--------------------------
Jul-03 0.01
--------------------------
Aug-03 0.37
--------------------------
▇▇ ▇▇▇▇ 0.95
--------------------------
Q2 2004 1.44
--------------------------
Q3 2004 1.38
--------------------------
Q4 2004 1.39
--------------------------
Q1 2005 1.51
--------------------------
Q2 2005 1.57
--------------------------
Q3 2005 1.69
--------------------------
Q4 2005 1.84
--------------------------
Q1 2006 1.70
--------------------------
Q2 2006 1.68
--------------------------
Q3 2006 1.50
--------------------------
Q4 2006 1.21
--------------------------
Q1 2007 1.37
--------------------------
Q2 2007 1.53
--------------------------
Q3 2007 1.70
--------------------------
Q4 2007 1.88
--------------------------
11.6-4
Schedule 11.6(a)(v)
Leverage Ratio Covenant
-------------------------
Jun-02 122.43
-------------------------
Jul-02 (24.67)
-------------------------
Aug-02 (15.33)
-------------------------
Sep-02 (15.88)
-------------------------
Oct-02 (17.07)
-------------------------
Nov-02 (15.42)
-------------------------
Dec-02 (18.59)
-------------------------
Jan-03 (26)
-------------------------
Feb-03 (37.02)
-------------------------
Mar-03 (93.10)
-------------------------
Apr-03 67.29
-------------------------
May-03 33.76
-------------------------
Jun-03 15.31
-------------------------
Jul-03 8.48
-------------------------
Aug-03 7.24
-------------------------
▇▇ ▇▇▇▇ 5.58
-------------------------
Q2 2004 4.37
-------------------------
Q3 2004 4.24
-------------------------
Q4 2004 4.04
-------------------------
Q1 2005 3.52
-------------------------
Q2 2005 2.91
-------------------------
Q3 2005 2.56
-------------------------
Q4 2005 2.20
-------------------------
Q1 2006 1.97
-------------------------
Q2 2006 1.71
-------------------------
Q3 2006 1.56
-------------------------
Q4 2006 1.50
-------------------------
Q1 2007 1.32
-------------------------
Q2 2007 1.15
-------------------------
Q3 2007 1.00
-------------------------
Q4 2007 0.86
-------------------------
11.6-5
Schedule 11.6(a)(vi)
Cash Restructuring Covenant
----------------------------
Jun-02 15,000
----------------------------
Jul-02 15,000
----------------------------
Aug-02 15,000
----------------------------
Sep-02 15,000
----------------------------
Oct-02 15,000
----------------------------
Nov-02 15,000
----------------------------
Dec-02 15,000
----------------------------
Jan-03 15,000
----------------------------
Feb-03 15,000
----------------------------
Mar-03 15,000
----------------------------
Apr-03 15,000
----------------------------
May-03 15,000
----------------------------
Jun-03 15,000
----------------------------
Jul-03 15,000
----------------------------
Aug-03 15,000
----------------------------
Q1 2004 0
----------------------------
Q2 2004 0
----------------------------
Q3 2004 0
----------------------------
Q4 2004 0
----------------------------
Q1 2005 0
----------------------------
Q2 2005 0
----------------------------
Q3 2005 0
----------------------------
Q4 2005 0
----------------------------
Q1 2006 0
----------------------------
Q2 2006 0
----------------------------
Q3 2006 0
----------------------------
Q4 2006 0
----------------------------
Q1 2007 0
----------------------------
Q2 2007 0
----------------------------
Q3 2007 0
----------------------------
Q4 2007 0
----------------------------
11.6-6
Exhibit A
Form of Amendment and Confirmation
[To be Attached]
A-1
Exhibit F
Intercreditor Agreement
[To be Attached]
F-1