EXHIBIT 99.1
AMENDMENT NO. `2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Second Amendment") is
entered into this 13th day of November, 2003, among:
▇▇▇▇▇▇ CORPORATION, a Delaware corporation (hereinafter referred to as
the "Borrower");
The lenders from time to time party to the Credit Agreement (as defined
herein) (each a "Lender" and, collectively, the "Lenders"); and
THE BANK OF NEW YORK, as administrative agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Administrative
Agent").
RECITALS
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WHEREAS:
(A) The Borrower, the Lenders and the Administrative Agent have entered
into a certain Credit Agreement dated as of October 11, 2000, as amended by a
certain letter agreement dated September 2, 2003 (as so amended and as it may
hereafter from time to time be further amended, modified, supplemented, or
restated, the "Credit Agreement"); and
(B) The Borrower, the Lenders and the Administrative Agent have agreed
to amend certain provisions of the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the agreements and provisions
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have their respective meanings set forth in the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended, as follows:
2.1 Section 1.01 (Defined Terms) of the Credit Agreement is hereby
amended as follows:
(a) The chart contained in the definition of "Applicable Margin" is
deleted in its entirety and the following chart is substituted therefor:
-------------------------------- --------------- --------------- -------------- -----------
"WHEN THE LEVERAGE RATIO IS AND LESS THAN ABR MARGIN EURODOLLAR FEE
GREATER THAN OR EQUAL TO MARGIN MARGIN
-------------------------------- --------------- --------------- -------------- -----------
2.00:1.00 1.00% 2.25% 0.375%
-------------------------------- --------------- --------------- -------------- -----------
1.75:1.00 2.00:1.00 0.75% 2.00% 0.375%
-------------------------------- --------------- --------------- -------------- -----------
1.25:1.00 1.75:1.00 0.50% 1.75% 0.375%
-------------------------------- --------------- --------------- -------------- -----------
0.50:1.00 1.25:1.00 0.25% 1.50% 0.375%
-------------------------------- --------------- --------------- -------------- -----------
0.50:1.00 0.00% 1.25% 0.375%"
-------------------------------- --------------- --------------- -------------- -----------
(b) The definition of "Consolidated EBITDA " set forth therein
is deleted in its entirety and the following definition is substituted therefor:
"'Consolidated EBITDA' means, for any period, net income of
the Borrower and the Subsidiaries, determined on a consolidated basis
in accordance with GAAP for such period plus (i) the sum of, without
duplication, each of the following of the Borrower and the Subsidiaries
on a consolidated basis in accordance with GAAP, each to the extent
utilized in determining net income for such period (a) interest
expense, (b) provision for income taxes, (c) depreciation, amortization
and other non-cash charges (whether or not such non-cash charges are
recurring), (d) extraordinary losses from sales, exchanges and other
dispositions of property not in the ordinary course of business, and
(e) foreign exchange losses, minus (ii) the sum of, without
duplication, each of the following with respect to the Borrower and the
Subsidiaries on a consolidated basis in accordance with GAAP, to the
extent utilized in determining such net income for such period: (a)
extraordinary gains from sales, exchanges and other dispositions of
property not in the ordinary course of business, (b) other
non-recurring items, and (c) foreign exchange gains."
(c) The definition of "Revolving Commitment" is amended by
deleting therefrom the last two sentences thereof and substituting the following
two sentences therefor:
"The amount of each Lender's Revolving Commitment as of the
date of the Second Amendment is set forth on Schedule 2.01 to the
Second Amendment, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Revolving Commitment, as applicable.
The aggregate amount of the Revolving Commitments as of the date of the
Second Amendment is $25,000,000."
(d) The definition of "Revolving Maturity Date" set forth
therein is deleted in its entirety and the following definition is substituted
therefor:
"'Revolving Maturity Date' means November 30, 2006."
(e) The following new definitions are inserted in the
appropriate alphabetic locations:
(i) "'Funded Debt' means, as of any date, with
respect to the Borrower and the Subsidiaries determined on a
consolidated basis, all Loans outstanding hereunder plus the current
and long term portion of all Capital Lease Obligations, in each case,
as at such date."
(ii) "'Liquidity Ratio' means, as of any date, the
ratio of (i) all cash, short term investments and accounts receivable
of the Borrower and the Subsidiaries determined on a consolidated basis
in accordance with GAAP as of such date less any allowances for bad
debts as of such date to (ii) Funded Debt as of such date."
(iii) "'Second Amendment' means Amendment No. 2 to
Credit Agreement dated November 13, 2003 by and among the Borrower, the
Lenders and the Administrative Agent."
(iv) "Second Amendment Effective Date" means the date
on which the conditions specified in Section 3 of the Second Amendment
are satisfied (or waived in accordance with Section 10.02 of the Credit
Agreement).
(v) "'Total Tangible Net Worth" means, as of any
date, all amounts which would, in conformity with GAAP, be included
under "shareholders' equity" (or any like caption) on a consolidated
balance sheet of the Borrower and the Subsidiaries as at such date,
plus, if and to the extent not otherwise included under "shareholders'
equity" (or any other such like caption), all preferred stock of the
Borrower outstanding as at such date, minus deferred charges,
intangibles and treasury stock, in each case of the Borrower and the
Subsidiaries, as determined on a consolidated basis in accordance with
GAAP."
2.2 Section 4.04 of the Credit Agreement (Financial Condition; No
Material Adverse Change) is hereby amended by:
(a) deleting in its entirety the first sentence of clause (a)
thereof and substituting the following sentence therefor:
"The Borrower has heretofore furnished to the Credit Parties
its consolidated and consolidating balance sheets and statements of
income, stockholders equity and cash flows of the Borrower and the
Subsidiaries as of and for the fiscal years ended June 30, 2001 and
June 30, 2002, reported on by Ernst & Young LLP, independent public
accountants, and June 30, 2003, reported on by KPMG LLP, independent
public accountants."; and
(b) deleting in its entirety clause (b) thereof and
substituting the following clause (b) therefor:
"(b) Since June 30, 2003, there has been no material adverse
change in the business, assets, operations, prospects or condition,
financial or otherwise, of the Borrower and the Subsidiaries, taken as
a whole."
2.3 Section 6.01 of the Credit Agreement (Financial Statements and
Other Information) is hereby amended by deleting in its entirety clause (e)
thereof and substituting the following clause (e) therefor:
"(e) concurrently with any delivery of financial statements
under clause (a), (b), (c) and (d) above, a certificate of a Financial
Officer of the Borrower (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof
and any action taken or proposed to be taken with respect thereto, (ii)
setting forth (A) reasonably detailed calculations demonstrating
compliance with Sections 7.12, 7.13, 7.14, 7.15, and 7.16 and (B) the
Subsidiary Guarantors as of the date of such certificate, and (iii)
stating whether any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to
in Section 4.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate."
2.4 Section 6.10 of the Credit Agreement (Insurance) is hereby deleted
in its entirety and the following is substituted therefor:
"Section 6.10 Insurance
The Borrower will, and will cause each of the Subsidiaries to,
maintain, with financially sound and reputable insurance companies, (a)
adequate insurance for its insurable properties, all to such extent and
against such risks, including fire, casualty, business interruption and
other risks insured against by extended coverage, as is customary with
companies in the same or similar businesses operating in the same or
similar locations and (i) with respect to insurance covering the
Collateral, such insurance shall contain a standard loss payable clause
and shall name the Administrative Agent for the ratable benefit of the
Secured Parties as a loss payee to the extent of its interest in
respect of each claim relating to the Collateral and resulting in a
payment thereunder, and (ii) with respect to liability insurance, such
insurance shall be indorsed to provide that the Administrative Agent,
in its capacity as such, shall be an additional insured; and (iii) with
respect to all such insurance, provide that 30 days' prior written
notice of any cancellation thereof shall be given to the Administrative
Agent, and (b) such other insurance as may be required pursuant to the
terms of any Security Document."
2.5 Section 7.04 of the Credit Agreement (Investments, Loans, Advances,
Guarantees and Acquisitions) is hereby amended by deleting in its entirety
clause (d) thereof and substituting the following clause (d) therefor:
"(d) acquisitions (whether by purchase of stock or assets,
merger or consolidation) by the Borrower and/or its Subsidiaries not
otherwise permitted by this Section, provided that (i) such acquisition
shall be within the same industry and line of business as that
conducted by, or contemplated to be conducted by, the Borrower and/or
the Subsidiaries on the Effective Date, (ii) after giving effect to
each such acquisition, the aggregate consideration paid by the Borrower
and/or the Subsidiaries in connection with all such acquisitions, with
(A) borrowed money and/or internally generated funds shall not exceed
$25,000,000, and (B) with borrowed money, internally generated funds
and/or equity contributions shall not exceed $40,000,000, (iii) the
Borrower shall furnish the Administrative Agent with written notice of
such acquisition not less than thirty (30) days prior to the closing of
such acquisition; (iv) in the event any acquisition is of stock, the
Borrower shall, pursuant the Security Agreement, grant to the
Administrative Agent a first security interest in all of the capital
stock of such new Subsidiary if such new Subsidiary is a Domestic
Subsidiary, and 65% of the capital stock of such new Subsidiary if such
new Subsidiary is a Material Foreign Subsidiary, and each new
Subsidiary shall, at the time it becomes a new subsidiary, execute such
certifications, opinions, resolutions and documents as the
Administrative Agent may reasonably require (consistent with the
requirements of this Agreement) to cause such new Subsidiary (if a
Domestic Subsidiary) to become a party to the Guarantee Agreement and
to cause such new Subsidiary to become a party to the Security
Agreement in order for such new Subsidiary to grant to the
Administrative Agent a first security interest in the assets of such
new Subsidiary, subject to the Permitted Encumbrances, and (v) the
Borrower shall have delivered to the Administrative Agent a certificate
of a Financial Officer of the Borrower demonstrating that, on a pro
forma basis, after giving effect to such acquisition, no Default or
Event of Default would exist, including under clause (d) of Article 8
as a result of the Borrower's failure to comply with Sections 7.12,
7.13, 7.14, 7.15 or 7.16 (such covenants to be determined as if such
acquisition had been consummated on the first day of the period for
which such covenants are being calculated);"
2.6 Section 7.12 of the Credit Agreement (Interest Coverage Ratio) is
hereby deleted in its entirety and the following is substituted therefor:
"Section 7.12 Interest Coverage Ratio
As of the last day of any fiscal quarter during any period set
forth below, the Borrower will not permit the ratio of Consolidated
EBITDA to Consolidated Interest Expense, in each case for the four
fiscal quarters ending on such date, to be less than the ratio set
forth below opposite such period:
----------------------------------------------------- -----------------------
PERIOD RATIO
----------------------------------------------------- -----------------------
Effective Date through June 29, 2001 2.50:1.00
----------------------------------------------------- -----------------------
----------------------------------------------------- -----------------------
June 30, 2001 through September 29, 2003 3.00:1.00
----------------------------------------------------- -----------------------
----------------------------------------------------- -----------------------
September 30, 2003 and thereafter 2.50:1.00"
----------------------------------------------------- -----------------------
2.7 Section 7.13 of the Credit Agreement (Reserved) is hereby deleted
in its entirety and the following is substituted therefor:
"Section 7.13 Minimum Total Tangible Net Worth
The Borrower will not cause, permit or allow Total Tangible
Net Worth as at the last day of each fiscal quarter of the Borrower to
be less than (i) $50,000,000, plus (ii) 50% of the aggregate Net Income
of the Borrower and the Subsidiaries, if positive, for each fiscal
quarter of the Borrower ending after the Second Amendment Effective
Date on a cumulative basis, plus (iii) 75% of all equity issued by the
Borrower and the Subsidiaries after the Second Amendment Effective
Date."
2.8 Section 7.14 of the Credit Agreement (Minimum Total Net Worth ) is
hereby deleted in its entirety and the following is substituted therefor:
"Section 7.14 Minimum Total Net Worth
The Borrower will not cause, permit or allow Total Net Worth
as at the last day of each fiscal quarter of the Borrower to be less
than (i) $74,787,000, plus (ii) 50% of the aggregate Net Income of the
Borrower and the Subsidiaries, if positive, for each fiscal quarter of
the Borrower ending after the Second Amendment Effective Date on a
cumulative basis, plus (iii) 75% of all equity issued by the Borrower
and the Subsidiaries after the Second Amendment Effective Date."
2.9 Section 7.15 of the Credit Agreement (Leverage Ratio) is hereby
deleted in its entirety and the following is substituted therefor:
"Section 7.15 Liquidity Ratio
As of the last day of any fiscal quarter, the Borrower will
not permit the Liquidity Ratio for the four fiscal quarters ending on such date
to be less than 1.25:1.00.
2.10 Section 7.16 of the Credit Agreement (Capital Expenditures) is
hereby deleted in its entirety and the following is substituted therefor:
"Section 7.16 Capital Expenditures
The Borrower will not permit Capital Expenditures made or
obligated to be made by the Borrower and the Subsidiaries in respect of any
period set forth below to be greater than the amount set forth below with
respect to such period:
------------------------------ ----------------------------------------------------------------------
Period Amount
------------------------------ ----------------------------------------------------------------------
Effective Date through $6,000,000
June 30, 2001
------------------------------ ----------------------------------------------------------------------
------------------------------ ----------------------------------------------------------------------
July 1, 2001 through $6,000,000 plus the amount by which $6,000,000 exceeded the amount
June 30, 2003 of Capital Expenditures actually incurred during the immediately
preceding fiscal year
------------------------------ ----------------------------------------------------------------------
------------------------------ ----------------------------------------------------------------------
July 1, 2003 through $8,000,000
June 30, 2004
------------------------------ ----------------------------------------------------------------------
------------------------------ ----------------------------------------------------------------------
July 1, 2004 through $8,000,000 plus the amount by which $8,000,000 exceeded the amount
June 30, 2005 and each of Capital Expenditures actually incurred during the immediately
fiscal year thereafter preceding fiscal year"
------------------------------ ----------------------------------------------------------------------
2.11 Section 10.01 of the Credit Agreement (Notices) is hereby amended
by
(a) deleting in its entirety the notice provisions contained
in clause (a) thereof and substituting the following notice provision therefor:
" ▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Fish & ▇▇▇▇▇▇▇▇▇▇ P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇"; and
(b) deleting in its entirety the second notice provision
contained in clause (b) thereof and substituting the following notice provision
therefor:
"The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Vice President
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇".
3. CONDITIONS PRECEDENT TO EFFECTIVENESS.
This Second Amendment shall become effective on the date (the "Second
Amendment Effective Date") that the following conditions precedent shall have
been fulfilled:
3.1 Second Amendment. The Administrative Agent shall have received this
Second Amendment, duly executed by a duly authorized officer or officers of the
Borrower, the Administrative Agent and each Lender.
3.2 Facility Fee. The Borrower shall have paid to the Administrative
Agent for the account of each Lender, simultaneously with the execution and
delivery of this Second Amendment, a non-refundable facility fee in the
aggregate amount of $125,000 representing one-half percent (0.50%) of the
Revolving Commitments as in effect on the Second Amendment Effective Date.
3.3 Financial Statements. The Administrative Agent shall have received
the financial statements referred to in Section 4.04(a) of the Credit Agreement
as amended hereby and there shall exist no liabilities of the Borrower or any
Subsidiary, fixed or contingent, which are material but not reflected in such
financial statements or the notes thereto, other than liabilities arising in the
ordinary course of business since June 30, 2003.
3.4 No Material Adverse Change. Since June 30, 2003, there shall have
occurred no material adverse change or material adverse condition in the
business, assets, operations, properties, condition (financial or otherwise),
liabilities (including contingent liabilities), prospects or material agreements
of the Borrower and the Subsidiaries, taken as a whole.
3.5 Certificates. The Administrative Agent shall have received:
(a) a certificate of the Secretary or Assistant
Secretary of the Borrower: (i) attaching a true and complete copy of the
resolutions of its Board of Directors and of all documents evidencing all
necessary corporate action (in form and substance reasonably satisfactory to the
Administrative Agent) taken by it to authorize this Second Amendment, (ii)
certifying that its certificate of incorporation and by-laws have not been
amended since October 11, 2000, or, if so, setting forth the same, and (iii)
setting forth the incumbency of its officer or officers who may sign this
Amendment, including therein a signature specimen of such officer or officers;
(b) a so-called "good standing" certificate with
respect to the Borrower as of a recent date issued by
the Secretary of State of the state of its incorporation; and
(c) certificates as of a recent date and issued by
the appropriate Governmental Authority as to the
qualification of the Borrower to do business (and good standing, where
available) as a foreign corporation in each of the States in which Borrower is
qualified as a foreign corporation.
4. ACKNOWLEDGMENTS AND CONFIRMATIONS.
The Borrower hereby acknowledges and confirms that (i) the
Liens granted or to be granted pursuant to the Security Documents secure or will
secure, without limitation, the Indebtedness, liabilities and obligations of the
Borrower to the Secured Parties and the Administrative Agent under the Credit
Agreement as amended hereby whether or not so stated in the Security Documents,
(ii) that the terms "Obligations" as used in the Security Documents (or any
other term used therein to describe or refer to the Indebtedness, liabilities
and obligations of the Borrower to the Secured Parties and/or the Administrative
Agent) include, without limitation, the Indebtedness, liabilities and
obligations of the Borrower under the Credit Agreement as amended hereby, and
(iii) the Security Documents remain in full force and effect in accordance with
their respective terms and are hereby ratified and confirmed.
5. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
to the Lenders and the Administrative Agent that:
5.1 No Default. After giving effect to this Second Amendment, no
Default or Event of Default shall have occurred or be continuing.
5.2 Existing Representations and Warranties. As of the date hereof and
after giving effect to this Second Amendment, each and every one of the
representations and warranties set forth in the Loan Documents is true, accurate
and complete in all respects and with the same effect as though made on the date
hereof, and each is hereby incorporated herein in full by reference as if
restated herein in its entirety, except for any representation or warranty
limited by its terms to a specific date and except for changes in the ordinary
course of business which are not prohibited by the Credit Agreement (as amended
hereby) or changes which do not, either singly or in the aggregate, have a
Material Adverse Effect.
5.3 Authority; Enforceability. (i) The execution, delivery and
performance by the Borrower of this Second Amendment are within its corporate
powers and have been duly authorized by all necessary corporate action, (ii)
this Second Amendment is the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and (iii) this Second Amendment and the
execution, delivery and performance by the Borrower thereof does not: (A)
contravene the terms of the Borrower's organizational documents; (B) conflict
with or result in any breach or contravention of, or the creation of any Lien
(other than Liens under the Loan Documents) under, any document evidencing any
contractual obligation to which the Borrower is a party or any order,
injunction, writ or decree to which it or its respective property is subject; or
(C) violate any requirement of law.
6. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
6.1 Effect. Except as specifically amended hereby, the Credit Agreement
and the other Loan Documents shall remain in full force and effect in accordance
with their terms and are hereby ratified and confirmed.
6.2 No Waiver; References. The execution, delivery and effectiveness of
this Second Amendment shall not operate as a waiver of any right, power or
remedy of the Administrative Agent or any Lender under the Credit Agreement, or
constitute a waiver of any provision of the Credit Agreement, except as
specifically set forth herein. Upon the effectiveness of this Second Amendment,
each reference in:
(i) the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of similar
import shall mean and be a reference to the Credit Agreement as amended hereby;
(ii) the other Loan Documents to the term "the Credit
Agreement" shall mean and be a reference to the
Credit Agreement as amended hereby; and
(iii) the Loan Documents to the term "the Loan
Documents" shall be deemed to include this Second
Amendment.
7. MISCELLANEOUS.
7.1 Expenses. The Borrower agrees to pay the Administrative Agent upon
demand for all reasonable expenses, including reasonable attorneys' fees and
expenses of the Administrative Agent, incurred by the Administrative Agent in
connection with the preparation, negotiation and execution of this Second
Amendment.
7.2. Headings. Section headings in this Second Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Second Amendment for any other purposes.
7.3 Law; Waiver of Trial by Jury. THIS SECOND AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK. THE PARTIES HERETO HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS
SECOND AMENDMENT.
7.4 Successors. This Second Amendment shall be binding upon the
Borrower, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Borrower, the
Lenders and the Administrative Agent and the successors and assigns of the
Lenders and the Administrative Agent.
7.5 Execution in Counterparts. This Second Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
instrument.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed and delivered by their respective officers thereunto
duly authorized on the date first written above.
▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
THE BANK OF NEW YORK,
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE 2.01 TO
AMENDMENT NO. 2 TO CREDIT AGREEMENT
COMMITMENTS
Bank Commitment
---- ----------
The Bank of New York $ 25,000,000
-------------
Total $ 25,000,000
=============
▇▇▇▇▇▇ CORPORATION
SECRETARY'S CERTIFICATE
Dated as of November 13, 2003
The undersigned hereby certifies as follows:
1. He is the duly elected and acting Secretary of ▇▇▇▇▇▇ Corporation, a
Delaware corporation (the "Corporation").
2. The Corporation's Certificate of Incorporation, as amended (if applicable),
has not been amended since October 11, 2000.
3. The Corporation's by-laws, as amended (if applicable), have not been
amended since October 11, 2000.
4. Attached hereto as Exhibit C is a true, correct and complete copy of
certain resolutions of the Corporation's Board of Directors duly adopted by
unanimous written consent dated November 13th, 2003. Such resolutions are
the only resolutions relating to the subject matter thereof and have not
been amended, revoked, repealed, altered, superseded or otherwise changed
in any way and are in full force and effect as of the date hereof.
5. Each of the following named persons is, on and as of the date hereof, a
duly elected or appointed and qualified acting officer of the Corporation
holding the office or offices set forth opposite his name and the signature
appearing opposite the name of each person set forth is his genuine
signature.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Vice President, Finance; Chief /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Financial Officer, Secretary and ------------------
Treasurer
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Assistant Secretary /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
in the name and on behalf of the Corporation as of November 13th, 2003.
▇▇▇▇▇▇ CORPORATION
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
By: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
The undersigned officer of the Corporation hereby certifies that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
is the Secretary of the Corporation and that his signature above is his true and
correct signature.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
UNANIMOUS WRITTEN CONSENT OF
THE BOARD OF DIRECTORS OF
▇▇▇▇▇▇ CORPORATION
November 13th, 2003
The undersigned, being all of the directors of ▇▇▇▇▇▇ Corporation, a
Delaware corporation (the "Corporation"), hereby unanimously consent, pursuant
to ss.141(f) of the Delaware General Corporation Law, to the adoption of the
following resolutions, effective as of the date set forth above.
RESOLVED: That the form, terms and provisons of the Amendment No. 2 to Credit
Agreement, dated as of November 13th, 2003 (the "Amendment"), among
the Corporation, the Lenders party thereto, and The Bank of New York,
as Administrative Agent, (the "Bank"), and all transactions
contemplated thereby, be, and hereby are, in all respects approved.
RESOLVED: That the President, Chief Executive Officer, Vice President-Finance,
Treasurer and/or any other officer of the Corporation be and each
hereby singly is, authorized, empowered and directed, in the name and
on behalf of the Corporation, to execute and enter into the Amendment,
which shall be in substantially the form of the draft thereof
furnished to the directors of the Corporation; the terms and
provisions of the Amendment being hereby authorized and approved, with
such changes as such officer or officers of the Corporation executing
the same shall deem necessary, advisable or proper, such execution by
such officer or officers of the Amendment to be conclusive evidence
that the same has been approved by this Board of Directors; and it is
further
RESOLVED: That the President, Chief Financial Officer, Vice President-Finance,
Treasurer and/or any other officer of the Corporation be, and each
hereby singly is, authorized, empowered and directed, in the name and
on behalf of the Corporation, to execute, acknowledge and deliver all
such certificates, documents, instruments and papers, and to take such
other action, as may be shown by his, her or their execution and
performance thereof to be in his, her or their judgment necessary or
desirable in connection with the consummation of the transactions
contemplated by the Amendment or any other document executed and
delivered in accordance with the foregoing resolutions or by the
transactions otherwise authorized by these resolutions, such
execution, acknowledgment, delivery or performance thereof by such
officer or officers to be conclusive evidence that the same has been
approved by this Board of Directors.
IN WITNESS WHEREOF, the undersigned have caused this Consent to be
executed as of the date first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ P. Henckels
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ Allyn C, ▇▇▇▇▇▇▇▇, Jr.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Delaware Page 1
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The First State
I, ▇▇▇▇▇▇▇ ▇▇▇▇▇ WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY "▇▇▇▇▇▇ CORPORATION" IS DULY INCORPORATED UNDER THE LAWS OF THE
STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL CORPORATE EXISTENCE SO
FAR AS THE RECORDS OF THIS OFFICE SHOW, AS OF THE ELEVENTH DAY OF NOVEMBER, A.D.
2003.
AND I DO HEREBY FURTHER CERTIFY THAT THE "▇▇▇▇▇▇ CORPORATION" WAS
INCORPORATED ON THE TWENTY-FIFTH DAY OF JULY, A.D. 1995.
AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL REPORTS HAVE BEEN FILED TO
DATE.
AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID TO
DATE.
S E A L
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Windsor
---------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Windsor, Secretary of State
2514336 8300 AUTHENTICATION: 2740124
030722098 DATE: ▇▇-▇▇-▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SS:
DEPARTMENT OF STATE
I hereby certify, that ▇▇▇▇▇▇ MERGER CORPORATION, a DELAWARE corporation, filed
an Application for Authority to do business in the State of New York on
08/22/1995. I further certify that so far as shown by the records of this
Department, such corporation is still authorized to do business in the State of
New York.
A certificate changing name to ▇▇▇▇▇▇ CORPORATION was filed on 09/18/1995.
SEAL
Witness my hand and the official seal
Of the Department of State at the City
Of Albany, this 10th day of November
two thousand and three.
/s/ Signature
Secretary of State
200311120093 45