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EXHIBIT 10.28
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FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
among
INTERNATIONAL WIRE GROUP, INC.,
as Borrower,
INTERNATIONAL WIRE HOLDING COMPANY,
as Guarantor,
CAMDEN WIRE CO., INC.,
The Several Lenders
from Time to Time Parties Hereto,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
and
BANKERS TRUST COMPANY,
as Documentation Agent
_____________________________________
CHASE SECURITIES INC.
and
BT SECURITIES CORPORATION,
as Arrangers
_____________________________________
Dated as of June 17, 1997
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TABLE OF CONTENTS
Page
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1. Amendments to Section 1.1 of the Credit Agreement . . . . . . . . . . . . . . . . 1
2. Amendment to Section 2 of the Credit Agreement. . . . . . . . . . . . . . . . . . 7
3. Amendment to Subsection 3.1 of the Credit Agreement . . . . . . . . . . . . . . . 7
4. Amendment to Subsection 5.24 of the Credit Agreement. . . . . . . . . . . . . . . 7
5. Amendment to Subsection 7.7 of the Credit Agreement . . . . . . . . . . . . . . . 7
6. Amendment to Subsection 8.2 of the Credit Agreement . . . . . . . . . . . . . . . 7
7. Amendment to Subsection 8.4 of the Credit Agreement . . . . . . . . . . . . . . . 8
8. Amendment to Subsection 8.7 of the Credit Agreement . . . . . . . . . . . . . . . 8
9. Amendment to Subsection 8.10 of the Credit Agreement. . . . . . . . . . . . . . . 8
10. Amendment to Subsection 12.1 of the Credit Agreement . . . . . . . . . . . . . . 9
11. Amendment to Schedule 1.1 to the Credit Agreement . . . . . . . . . . . . . . . . 9
12. Consent to Additional Senior Subordinated Notes . . . . . . . . . . . . . . . . . 9
13. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . 9
(a) Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(b) Corporate Power; Authorization; Enforceable Obligation . . . . . . . . . 9
(c) No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(d) Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
14. Conditions to Effectiveness of this Amendment . . . . . . . . . . . . . . . . . . 10
(a) Amendment; Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(b) Receipt of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(c) Corporate Proceedings of the Credit Parties . . . . . . . . . . . . . . 11
(d) Incumbency Certificates . . . . . . . . . . . . . . . . . . . . . . . . 11
(e) Corporate Documents . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(f) Certificate Regarding Subordinated Notes . . . . . . . . . . . . . . . . 11
(g) Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(h) Consents, Licenses and Approvals . . . . . . . . . . . . . . . . . . . . 12
(i) Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(j) Borrowing Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 12
(k) Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(l) Borrowing Base Certificate . . . . . . . . . . . . . . . . . . . . . . . 12
(m) No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(n) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . 12
15. Confirmation of Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(c) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(d) Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(e) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(f) Submission To Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . 14
(g) Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(h) Waivers of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . 14
(i) Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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TABLE OF ANNEXES, SCHEDULES AND EXHIBITS TO AMENDMENT
ANNEXES
A Amended Section 2 of Credit Agreement
EXHIBITS
A Form of Opinion of Counsel to the Credit Parties
SCHEDULES
1.1 Addresses for Notices; Commitments
5.4 Required Consents
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FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT, dated as of June 17, 1997, to the Amended and
Restated Credit Agreement, dated as of February 12, 1997 (as amended,
supplemented or otherwise modified prior to the date hereof, the "Credit
Agreement"), among INTERNATIONAL WIRE GROUP, INC., a Delaware corporation (the
"Borrower"), INTERNATIONAL WIRE HOLDING COMPANY, a Delaware corporation
("Holdings"), CAMDEN WIRE CO., INC., a New York corporation ("Camden"), the
several banks and other financial institutions from time to time parties
thereto (the "Lenders") and THE CHASE MANHATTAN BANK, a New York banking
corporation, as administrative agent for the Lenders thereunder (in such
capacity, the "Administrative Agent"), and BANKERS TRUST COMPANY, as
documentation agent for the Lenders thereunder (in such capacity, the
"Documentation Agent"). Unless otherwise defined herein, terms which are
defined in the Credit Agreement and used herein are so used as so defined.
W I T N E S S E T H:
WHEREAS, the Borrower, Holdings, the Lenders, the Administrative Agent
and the Documentation Agent are parties to the Credit Agreement; and
WHEREAS, the Borrower desires to issue the Additional Senior
Subordinated Notes (as defined below); and
WHEREAS, the Borrower has requested (i) that the Lenders consent to
the issuance of the Additional Senior Subordinated Notes (as hereinafter
defined), (ii) that the Tranche C Term Loan Lenders convert their outstanding
Tranche C Term Loans to Tranche B Term Loans on the Effective Date (as
hereinafter defined), (iii) that the proceeds of the issuance of the Additional
Subordinated Notes be allocated to the prepayment of the Loans as follows (the
"Agreed Allocation"): first, to the Tranche A Loans until the aggregate
principal amount outstanding thereunder is $25,000,000; second, to the Tranche
B Loans (which will be combined with the Tranche C Loans as provided herein,
collectively the "Combined Tranche B Loans"), until the aggregate principal
amount outstanding under the Combined Tranche B Loans is $160,500,000; and
third, to the extent of the remaining proceeds, to the Revolving Credit Loans,
(iv) permission to repurchase the Exchange Notes in an amount not to exceed
$5,700,000 including related accrued interest and premium, and (v) certain
related amendments to the Credit Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. Amendments to Section 1.1 of the Credit Agreement. (a) Section
1.1 of the Credit Agreement is hereby amended by inserting the following new
definitions in the proper alphabetical order:
""Additional Senior Subordinated Note Documents": the
collective reference to the Additional Senior Subordinated
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Notes, the Additional Senior Subordinated Note Indenture, the
Additional Senior Subordinated Note Purchase Agreement and all other
agreements or instruments executed in connection with the Additional
Senior Subordinated Notes, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with subsection
8.10; individually a "Additional Senior Subordinated Note Document."
"Additional Senior Subordinated Note Indenture": the Indenture
dated as of June 17, 1997 among the Borrower, the Subsidiary
Guarantors (as defined therein), and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company
as trustee, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 8.10.
"Additional Senior Subordinated Note Purchase Agreement": the
reference to the Purchase Agreement dated June 11, 1997 among the
Borrower, the Subsidiary Guarantors (as defined therein), Chase
Securities Inc., BT Securities Corporation and certain other parties
thereto, pursuant to which the Borrower issues or sells Additional
Senior Subordinated Notes, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with subsection
8.10.
"Additional Senior Subordinated Notes": the $150,000,000
aggregate principal amount of 11-3/4% Series B Senior Subordinated
Notes due 2005 of the Borrower, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with subsection 8.10.
"Agreed Allocation": as set forth in the recitals hereto.
"Consolidated Senior Debt": at a particular date, with respect
to the Borrower, the aggregate Consolidated Total Debt less
Consolidated Subordinated Indebtedness.
"Consolidated Subordinated Indebtedness": at a particular
date, with respect to the Borrower, the aggregate principal amount of
Indebtedness outstanding under the Senior Subordinated Notes, the
Exchange Notes and the Additional Senior Subordinated Notes as such
Indebtedness may be amended, supplemented or otherwise modified in
accordance with subsection 8.10(b).
"ECF Percentage": 75%; provided that the percentage will be
reduced to zero if the ratio of Consolidated Total Debt of the
Borrower and its Subsidiaries to Consolidated EBITDA of the Borrower
and its Subsidiaries, for the most recently completed fiscal year
(determined in accordance with subsection 8.1(c)) is ( 3.75:1.0.
"Effective Date": the date on which all conditions set forth
in Section 16 are met.""
(b) Section 1.1 of the Credit Agreement is further
amended by deleting therefrom the definitions of Additional Term
Loans, Additional Tranche A Term Loan, Additional
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Tranche A Term Loan Commitment, Additional Tranche B Term Loan,
Additional Tranche B Term Loan Commitment, Applicable Margin,
Consolidated Total Debt, Excess Cash Flow, Interest Coverage Ratio,
Revolving Credit Commitment Termination Date, Second Additional Term
Loans, Term Loan Commitments, Term Loan Lender, Term Note and Term
Notes, Total Credit Percentage, Tranche A Term Loan Commitment,
Tranche B Term Loan Commitment and inserting in lieu thereof the
following corresponding new definitions:
""Additional Term Loans": the collective reference to the
Additional Tranche A Term Loans.
"Additional Tranche A Term Loan": any term loan made by a
Tranche A Term Loan Lender on the Second Amendment Closing Date.
"Additional Tranche A Term Loan Commitment": as to any Tranche
A Term Loan Lender, its obligation to make an Additional Tranche A
Term Loan to the Borrower on the Second Amendment Closing Date.
"Additional Tranche B Term Loan": any term loan made by a
Tranche B Term Loan Lender on the Second Amendment Closing Date.
"Additional Tranche B Term Loan Commitment": as to any Tranche
B Term Loan Lender, its obligation to make an Additional Tranche B
Term Loan to the Borrower on the Second Amendment Closing Date.
"Applicable Margin": for each Type of Loan, the rate per annum
set forth under the relevant column heading below:
Alternate Base Rate Loans
Type Applicable Margin
------------------------- -----------------
Tranche A Term Loans 1/2%
Tranche B Term Loans 1%
Revolving Credit Loans 1/2%
(including Swing Line Loans)
Eurodollar Rate Loans
Type Applicable Margin
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Tranche A Term Loans 1-1/2%
Tranche B Term Loans 2%
Revolving Credit Loans 1-1/2%
; provided that in the event that the ratio of Consolidated Senior
Debt of the Borrower as of the most recent fiscal quarter to
Consolidated EBITDA (calculated in accordance with subsection 8.1(c))
of the Borrower, is as set forth in the relevant column heading below
for any quarterly period, any such Applicable Margin with respect to
Tranche A Term Loans and Revolving Credit Loans (including in the case
of Alternate Base Rate Loans, Swing Line Loans) shall be as provided
in the relevant column heading below, but in no event shall any such
reductions be effective prior to the first anniversary of the
Effective Date:
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Relevant Ratio of Applicable
Consolidated Senior Margin For Applicable Margin
Debt to Consolidated Eurodollar for Alternate Base
EBITDA Loans Rate Loans
-------------------- ---------- ------------------
1.75x and above 1-1/2% 1/2%
1.50x to but excluding 1.75x 1-1/4% 1/4%
Below 1.50x 1% 0%
if the financial statements required to be delivered pursuant to
subsection 7.1(a) or 7.1(b), as applicable, and the related compliance
certificate required to be delivered pursuant to subsection 7.2(b),
are delivered on or prior to the date when due (or, in the case of the
fourth quarterly period of each fiscal year of the Borrower, if
financial statements which satisfy the requirements of, and are
delivered within the time period specified in, subsection 7.l(b) and a
related compliance certificate which satisfies the requirements of,
and is delivered within the time period specified in, subsection
7.2(b), with respect to any such quarterly period are so delivered
within such time periods), then the Applicable Margin in respect of
the Revolving Credit Loans and the Tranche A Term Loans from the date
upon which such financial statements were delivered shall be the
Applicable Margin as set forth in the relevant column heading above;
provided, however, that in the event that the financial statements
delivered pursuant to subsection 7.1(a) or 7.1(b), as applicable, and
the related compliance certificate required to be delivered pursuant
to subsection 7.2(b), are not delivered when due, then:
(a) if such financial statements and certificate are
delivered after the date such financial statements and
certificate were required to be delivered (without giving
effect to any applicable cure period) and the Applicable
Margin increases from that previously in effect as a result of
the delivery of such financial statements and certificate,
then the Applicable Margin in respect of Revolving Credit
Loans (including in the case of Alternate Base Rate Loans,
Swing Line Loans) and Tranche A Term Loans during the period
from the date upon which such financial statements and
certificate were required to be delivered (without giving
effect to any applicable cure period) until the date upon
which they actually are delivered shall, except as otherwise
provided in clause (c) below, be the Applicable Margin as so
increased;
(b) if such financial statements and certificate are
delivered after the date such financial statements and
certificate were required to be delivered (without giving
effect to any applicable cure period) and the Applicable
Margin decreases from that previously in effect as a result of
the delivery of such financial statements and certificate,
then such decrease in the Applicable Margin shall not become
applicable until the date upon which such financial statements
and certificate actually are delivered; and
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(c) if such financial statements and certificate are
not delivered prior to the expiration of the applicable cure
period, then, effective upon such expiration, for the period
from the date upon which such financial statements and
certificate were required to be delivered (after the
expiration of the applicable cure period) until two Business
Days following the date upon which they actually are
delivered, the Applicable Margin in respect of Revolving
Credit Loans (including in the case of Alternate Base Rate
Loans, Swing Line Loans) and Tranche A Term Loans shall be
1-1/2%, in the case of Eurodollar Loans, and 1/2%, in the case
of Alternate Base Rate Loans (it being understood that the
foregoing shall not limit the rights of the Administrative
Agent and the Lenders set forth in Section 9).
"Consolidated Total Debt": at a particular date, with respect
to the Borrower, the aggregate principal amount of Indebtedness
outstanding under this Agreement, the Senior Subordinated Notes, the
Additional Senior Subordinated Notes, the Exchange Notes, Financing
Leases, purchase money Indebtedness and any other Indebtedness for
borrowed money of the Borrower and its Subsidiaries at such date.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA
for such fiscal year (calculated for purposes of this definition
without giving effect to clause (vii) of the definition of
Consolidated EBITDA), (ii) the amount of returned surplus assets of
any Plan during such fiscal year to the extent not included in
Consolidated Net Income to determine Consolidated EBITDA for such
fiscal year, (iii) decreases in Consolidated Working Capital of the
Borrower and its Subsidiaries for such fiscal year, (iv) the amount of
any refund received by the Borrower and its Subsidiaries on taxes paid
by the Borrower and its Subsidiaries (other than the Sellers Tax
Escrow Amount), (v) cash dividends, cash interest and other similar
cash payments received by the Borrower in respect of investments to
the extent not included in Consolidated Net Income to determine
Consolidated EBITDA for such fiscal year and (vi) extraordinary cash
gains to the extent subtracted or otherwise not included in
Consolidated Net Income to determine Consolidated EBITDA for such
fiscal year over (b) the sum, without duplication, of (i) the
aggregate amount of cash Capital Expenditures made by the Borrower and
its Subsidiaries during such fiscal year and permitted hereunder
(other than Capital Expenditures permitted under subsection 8.8(b)),
(ii) the aggregate amount of all reductions of the Revolving Credit
Commitments (to the extent such reductions are accompanied by
prepayment of Revolving Credit Loans, Swing Line Loans and/or L/C
Obligations) or payments or prepayments of the Term Loans during such
fiscal year other than pursuant to subsection 2.12(a), (b) or (c),
(iii) the aggregate amount of payments of principal in respect of any
Indebtedness (other than revolving credit Indebtedness to
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the extent the related commitment is not permanently reduced)
permitted hereunder during such fiscal year (other than under this
Agreement), (iv) increases in Consolidated Working Capital of the
Borrower and its Subsidiaries for such fiscal year, (v) cash interest
expense of the Borrower and its Subsidiaries for such fiscal year,
(vi) taxes actually paid in such fiscal year or to be paid in the
subsequent fiscal year on account of such fiscal year to the extent
added to Consolidated Net Income to determine Consolidated EBITDA for
such fiscal year, (vii) extraordinary cash losses to the extent added
to Consolidated Net Income to determine Consolidated EBITDA for such
fiscal year, (viii) the amount of all Investments made in such fiscal
year as permitted by clauses (d), (h) and (j) of subsection 8.9 and
(ix) dividends or other direct payments paid by the Borrower to or for
the benefit of Holdings to the extent permitted by subsection 8.7(a)
to the extent not subtracted in the determination of Consolidated Net
Income of the Borrower for such fiscal year. For purposes of
determining changes in Consolidated Working Capital, the working
capital acquired in connection with the Acquisition and the Camden
Acquisition will be excluded. For the purposes of calculating Excess
Cash Flow, the proceeds, the application thereof and any fees in
connection with the issuance of the Additional Senior Subordinated
Notes will be excluded.
"Interest Coverage Ratio": for any period, with respect to the
Borrower and its Subsidiaries, the ratio of (a) Consolidated EBITDA to
(b) consolidated cash interest expense (including any such cash
interest expense in respect of Indebtedness under Financing Leases and
purchase money Indebtedness permitted under subsection 8.2(e)) of the
Borrower and its Subsidiaries net of cash interest income (such
consolidated cash interest expense to include fees payable on account
of letters of credit and amortization of debt premium, but to exclude
amortization of debt discount (including discount of liabilities and
reserves established under Accounting Principles Board Opinion No. 16
as in effect on the date hereof) and costs of debt issuance) of the
Borrower and its Subsidiaries.
"Revolving Credit Commitment Termination Date": the earliest
of (a) September 30, 2002 or, if such date is not a Business Day, the
Business Day next preceding such date, (b) the date upon which the
Term Loans shall be paid in full and (c) the date upon which the
Revolving Credit Commitments shall be terminated pursuant hereto.
"Second Additional Term Loans": the collective reference to
the Additional Tranche B Term Loans.
"Term Loan Commitments": the collective reference to the
Tranche A Term Loan Commitments and the Tranche B Term Loan
Commitments; collectively, as to all the Term Loan Lenders, the "Term
Commitments."
"Term Loan Lender": the collective reference to the Tranche A
Term Loan Lenders and the Tranche B Term Loan Lenders.
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"Term Note" and "Term Notes": as defined in subsection 2.8(a).
"Total Credit Percentage": as to any Lender at any time, the
percentage of the aggregate Revolving Credit Commitments, outstanding
Tranche A Term Loans and outstanding Tranche B Term Loans then
constituted by its Revolving Credit Commitment, outstanding Tranche A
Term Loans and outstanding Tranche B Term Loans (or, if the Revolving
Credit Commitments have terminated or expired, the percentage of the
aggregate outstanding Revolving Credit Loans, outstanding Tranche A
Term Loans and outstanding Tranche B Term Loans and risk interests in
the Letter of Credit Outstandings and Swing Line Loans then
constituted by its outstanding Revolving Credit Loans, outstanding
Tranche A Term Loans and outstanding Tranche B Term Loans and risk
interest in Letter of Credit Outstandings and Swing Line Loans).
"Tranche A Term Loan Commitment": as to any Tranche A Term
Loan Lender, its prior obligation to have made a Tranche A Term Loan
to the Borrower as previously provided in the Credit Agreement.
"Tranche B Term Loan Commitment": as to any Tranche B Term
Loan Lender, its prior obligation to have made a Tranche B Term Loan
to the Borrower as previously provided in the Credit Agreement.
(c) Section 1.1 of the Credit Agreement is further amended by
deleting therefrom the definitions of Additional Tranche C Term Loan,
Additional Tranche C Term Loan Commitment, Original Tranche A Term Loan,
Original Tranche B Term Loan, Original Tranche C Term Loan, Tranche C Term Loan
Commitment, Tranche C Term Loan Commitment Percentage, Tranche C Term Loan
Lender, Tranche C Term Loans and Tranche C Term Note.
2. Amendment to Section 2 of the Credit Agreement. Section 2 of the
Credit Agreement is hereby amended by deleting such Section in its entirety and
inserting in lieu thereof Annex A hereto.
3. Amendment to Subsection 3.1 of the Credit Agreement. Subsection
3.1(a) of the Credit Agreement is hereby amended by deleting the words "360
day" wherever they appear in the paragraph and inserting in lieu thereof the
words "one year".
4. Amendment to Subsection 5.15 of the Credit Agreement. Subsection
5.15 of the Credit Agreement is hereby amended by deleting the words in the
second sentence thereof immediately following the word "therewith" and
inserting in lieu thereof the following phrase:
", to refinance the credit facilities under the Omega Credit Agreement
and to repurchase the Exchange Notes in accordance with subsection
8.10(a), as well as for general corporate purposes of the Borrower and
the Subsidiaries."
5. Amendment to Subsection 5.24 of the Credit Agreement. Subsection
5.24 of the Credit Agreement is hereby amended by
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deleting the phrase "of the Senior Subordinated Notes" and inserting in lieu
thereof: ", of the Senior Subordinated Notes and the Additional Senior
Subordinated Notes".
6. Amendment to Subsection 7.7 of the Credit Agreement. Subsection
7.7(b)(ii) of the Credit Agreement is hereby amended by inserting at the end of
the clause but before the semi-colon the phrase: "or the Additional Senior
Subordinated Notes".
7. Amendment to Subsection 8.2 of the Credit Agreement. (a) Subsection
8.2(n) of the Credit Agreement is hereby amended by deleting the word "and" at
the end of the proviso.
(b) Subsection 8.2(o) of the Credit Agreement is hereby amended by
deleting the period at the end of the second proviso and inserting in lieu
thereof a semi-colon followed by the word "and".
(c) Subsection 8.2 of the Credit Agreement is hereby amended by adding
the following paragraph in the proper alphabetical order:
"(p) Indebtedness under the Additional Senior Subordinated Notes not
to exceed $150,000,000 in aggregate principal amount at any one time;
provided that such Indebtedness shall not be extended, renewed,
replaced, refinanced or otherwise amended except for amendments
otherwise permitted by subsection 8.10(b)."
8. Amendment to Subsection 8.4 of the Credit Agreement. (a) Subsection
8.4(h) of the Credit Agreement is hereby amended by deleting the word "and" at
the end of the clause.
(b) Subsection 8.4(i) of the Credit Agreement is hereby amended by
deleting the period at the end of the clause and inserting in lieu thereof a
semi-colon followed by the word "and".
(c) Subsection 8.4 of the Credit Agreement is hereby amended by adding
the following paragraph in the proper alphabetical order:
"(j) the guarantees of the Domestic Subsidiaries of the Borrower set
forth in the Additional Senior Subordinated Notes and the Additional
Senior Subordinated Note Documents."
9. Amendment to Subsection 8.7 of the Credit Agreement. (a) Subsection
8.7(a)(i) of the Credit Agreement is hereby amended by deleting such subsection
in its entirety and inserting in lieu thereof the following:
"(i) the proceeds of which shall be applied by Holdings
directly to pay out of pocket expenses for administrative,
legal and accounting services provided by third parties which
are reasonable and customary and incurred in the ordinary
course of business, to pay franchise fees and similar costs or
to pay filing fees in connection with the registration under
the Securities Act of 1933, as amended of securities issued
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in exchange for (A) the Senior Subordinated Notes or (B) the
Additional Senior Subordinated Notes; provided, howeverthat any
such administrative expenses shall not exceed an aggregate amount
of $1,000,000 in fiscal year 1997 and $750,000 in each fiscal year
thereafter;
10. Amendment to Subsection 8.10 of the Credit Agreement. (a)
Subsection 8.10(a) of the Credit Agreement is hereby amended by deleting the
words "and the Exchange Notes" where they appear in the parenthetical and
inserting in lieu thereof the phrase ", the Additional Senior Subordinated
Notes and the Exchange Notes, provided that, notwithstanding anything to the
contrary herein, the Borrower may apply the proceeds of the Revolving Credit
Loans to the repurchase of the Exchange Notes in an amount not to exceed
$5,700,000 (including related accrued interest and premium) promptly, but in no
event later than ten days following the Effective Date of the First Amendment".
(b) Subsection 8.10(b) of the Credit Agreement is hereby amended by
deleting the words "and the Exchange Notes" where they appear in the
parenthetical occurring in the first clause and inserting in lieu thereof the
phrase ", the Exchange Notes and the Additional Senior Subordinated Notes".
(c) Subsection 8.10(b)(iv) of the Credit Agreement is hereby amended
by inserting at the end of the parenthetical the phrase "and the Additional
Senior Subordinated Notes".
11. Amendment to Subsection 8.11 of the Credit Agreement. Subsection
8.11(b)(ii) of the Credit Agreement is hereby amended by deleting the word
"and" at the end of the clause.
(b) Subsection 8.11(b)(iii) of the Credit Agreement is hereby amended
by deleting the period at the end of the clause and inserting in lieu thereof a
semi-colon followed by the word "and".
(c) Subsection 8.11(b) of the Credit Agreement is hereby amended by
adding the following paragraph in the proper numerical order:
"(iv) the repurchase of the Exchange Notes is accordance with the
provisions of subsection 8.10(a)."
12. Amendment to Subsection 12.1 of the Credit Agreement. Subsection
12.1 of the Credit Agreement is hereby amended by deleting paragraph (b)
thereof in its entirety.
13. Amendment to Schedule 1.1 to the Credit Agreement. Schedule 1.1 to
the Credit Agreement is hereby amended by deleting such Schedule in its
entirety and inserting in lieu thereof the new Schedule 1.1 attached hereto.
14. Consent to Additional Senior Subordinated Notes. Each Lender party
to this Amendment hereby consents to the issuance of the Additional Senior
Subordinated Notes.
15. Representations and Warranties. To induce the Administrative Agent
and the Lenders to enter into this
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Amendment, to make the Loans and to issue and participate in Letters of Credit
and to consent to the issuance of the Additional Senior Subordinated Notes, the
Credit Parties hereby represent and warrant to the Administrative Agent and
each Lender that:
(a) Financial Condition. (i) The pro forma balance sheet of the
Borrower and its Subsidiaries as of March 31, 1997 and after giving effect to
the issuance of the Additional Senior Subordinated Notes and the refinancings
contemplated hereby, which has heretofore been furnished to each Lender which
shall be in form and substance satisfactory to the Lenders, and (ii) the
unaudited balance sheet of the Borrower for the fiscal quarter ended March 31,
1997, and the related statements of income, cash flows and changes in
shareholders equity for such periods, copies of which have heretofore been
furnished to each Lender, to the best knowledge of the Borrower, present fairly
in all material respects the financial position of the Borrower as at such
date, and the consolidated results of the Borrower's operations and the
Borrower's cash flows for the fiscal period then ended. All such financial
statements have been prepared, to the best knowledge of the Borrower, in
accordance with GAAP applied consistently throughout the period involved
(except as approved by such accountants and as disclosed therein and subject to
normal recurring adjustments as necessary for the fair presentation thereof).
Neither the Borrower nor any of its Subsidiaries had, to the best knowledge of
the Borrower, as at the date of the balance sheet referred to above, any
material Guarantee Obligation, contingent liability or liability for taxes, or
any long-term lease or unusual forward or long-term commitment, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction, which is not reflected in the foregoing statements or in the notes
thereto and which, to the best knowledge of the Borrower, has any reasonable
likelihood of resulting in a material cost or loss. During the period from
March 31, 1997 to and including the date hereof there has been, to the best
knowledge of the Borrower, no sale, transfer or other disposition by the
Borrower or any of its Subsidiaries of any material part of its business, or
property and no purchase or other acquisition of any business or property
(including any capital stock of any other Person) material in relation to the
consolidated financial condition of the Borrower and its Subsidiaries at March
31, 1997.
(b) Corporate Power; Authorization; Enforceable Obligations. Each
Credit Party has the corporate power and authority, and the legal right, to
make, deliver and perform this Amendment, any of the Notes and the other Loan
Documents to which it is a party and, with respect to the Borrower, to borrow
under the Credit Agreement and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of, or the granting of any
security interests under, the Credit Agreement, this Amendment, any of the
Notes and the other Loan Documents and to authorize the execution, delivery and
performance of this Amendment, any of the Notes, the other Loan Documents to
which it is a party. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person
is required in connection with the borrowings under the Credit Agreement or
with the execution, delivery, performance, validity or enforceability
14
of, or the granting of any security interests under, the Credit Agreement, this
Amendment and any of the Notes or the other Loan Documents to which any Credit
Party is a party, except for those set forth on Schedule 5.4 hereto, each of
which have been made or taken and are in full force and effect. This Amendment,
any Note and each of the other Loan Documents has been duly executed and
delivered on behalf of the Credit Party thereto. This Amendment, any Note and
each of the other Loan Documents constitutes a legal, valid and binding
obligation of the Credit Party thereto enforceable against such Credit Party in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
(c) No Legal Bar. The execution, delivery and performance of this
Amendment, any of the Notes and the other Loan Documents, the borrowings under
the Credit Agreement and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of any Credit Party or of any of
their Subsidiaries.
(d) Disclosure. No information, financial statement, report,
certificate or other document prepared or furnished by or on behalf of any
Credit Party to the Administrative Agent or any Lender in connection with this
Amendment, any other Loan Document (but excluding all projections and pro forma
financial statements which shall have been prepared in good faith and based
upon reasonable assumptions) contains any untrue statement of a material fact
or omits to state any material fact necessary to make the statements herein or
therein not misleading. As of the Effective Date, there is no fact known to any
Credit Party (other than general economic conditions, which conditions are
commonly known and affect businesses generally) which has, or which could
reasonably be expected to have, in the reasonable judgment of such Credit
Party, a Material Adverse Effect.
16. Conditions to Effectiveness of this Amendment. The agreement of
(i) the Tranche C Term Loan Lenders to convert the outstanding Tranche C Term
Loans to Tranche B Term Loans and (ii) each Lender party to this Amendment to
consent to the issuance of the Additional Senior Subordinated Notes and the
other amendments set forth herein, is subject to the satisfaction of the
following conditions precedent:
(a) Amendment; Notes. The Administrative Agent shall have received (a)
this Amendment, executed and delivered by a duly authorized officer of the
Borrower, Holdings and Camden with a counterpart for each Lender and (b) for
the account of each of the Lenders which has requested a Note pursuant to
subsections 2.8(a), if requested, a replacement Tranche B Term Note, conforming
to the requirements hereof and executed and delivered by a duly authorized
officer of the Borrower.
(b) Receipt of Proceeds. On or prior to the date hereof the Borrower
shall have received at least $150,000,000 of gross cash proceeds from the
issuance of the Additional Senior Subordinated Notes which proceeds shall, on
the Effective Date, be remitted to the Lenders on a pro rata basis in
accordance with
15
the Agreed Allocation. The Lenders shall have received copies of the Additional
Senior Subordinated Notes Documents and the Administrative Agent shall be
satisfied with the terms and conditions thereof.
(c) Corporate Proceedings of the Credit Parties. The Administrative
Agent shall have received, with a copy for each Lender, a copy of the
resolutions, in form and substance reasonably satisfactory to the
Administrative Agent, of the Board of Directors or duly authorized committee of
each of the Credit Parties authorizing (i) the execution, delivery and
performance of this Amendment and the other Loan Documents to which it is a
party and certified by the Secretary or an Assistant Secretary of each of the
Credit Parties as of the Effective Date, which certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded and shall be in form and substance reasonably satisfactory to the
Administrative Agent.
(d) Incumbency Certificates. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of the Secretary or an
Assistant Secretary (or comparable officer) of each of the Credit Parties dated
the Effective Date, as to the incumbency and signature of the officers of such
Person executing each Loan Document to which it is a party and any certificate
or other document to be delivered by it pursuant hereto and thereto, together
with evidence of the incumbency of such Secretary or Assistant Secretary.
(e) Corporate Documents. The Administrative Agent shall have received,
with a counterpart for each Lender, true and complete copies of the certificate
of incorporation and by-laws of each of the Credit Parties certified as of the
Effective Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of each of the Credit Parties.
(f) Certificate Regarding Subordinated Notes. The Administrative Agent
shall have received, with a counterpart for each Lender a certificate from a
Responsible Officer of the Borrower, dated the Effective Date, that, after
giving effect to the transactions contemplated by this Amendment, the Borrower
will be in compliance with the debt incurrence covenants contained in the
Senior Subordinated Notes Indenture and the Additional Senior Subordinated
Notes Indenture, which certificate shall set forth the calculations used to
make such representation.
(g) Guarantees. Each of the Domestic Subsidiaries, Wire Technologies
and Camden shall have reaffirmed their obligations under the Domestic
Subsidiaries' Guarantee (and each other guarantee executed and delivered by a
Domestic Subsidiary pursuant to subsection 7.12 of the Credit Agreement, if
any), the Wire Technologies Guarantee and the Camden Guarantee, respectively,
each in form and substance reasonably satisfactory to the Administrative Agent.
(h) Consents, Licenses and Approvals. (a) All governmental and
material third party approvals (including material landlords' and other
consents) necessary or advisable in connection with the execution, delivery and
performance of the
16
Loan Documents and the continuing operation of the Business shall have been
obtained and be in full force and effect, (b) all applicable waiting periods
shall have expired without any action being taken or threatened by any
competent Governmental Authority which would restrain, prevent or otherwise
impose adverse conditions on Holdings or any of its Subsidiaries and (c) the
Administrative Agent shall have received, with a counterpart for each Lender, a
certificate of a Responsible Officer of each of the Credit Parties (A)
attaching copies of all consents, authorizations and filings in connection with
this Amendment and (B) stating that such consents, licenses and filings are in
full force and effect, and each such consent, authorization and filing shall be
in form and substance satisfactory to the Administrative Agent.
(i) Fees. (i) the Administrative Agent shall have received for the
account of the Lenders parties hereto, an amendment fee equal to 10 basis
points of the sum of (x) the aggregate Revolving Credit Commitments of such
Lenders and (y) the aggregate outstanding Term Loans after giving effect to the
changes in the outstanding amounts of the Term Loans contemplated hereby of
such Lenders, as of the Effective Date and (ii) Chase shall have received the
amounts set forth in the Fee Letter dated June 17, 1997 among the Borrower,
Chase and CSI.
(j) Borrowing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, the most recent borrowing certificate
required pursuant to the Credit Agreement, executed by a Responsible Officer of
the Borrower.
(k) Legal Opinions. The Administrative Agent shall have received, with
a counterpart for each Lender, the executed legal opinion of Weil, Gotshal &
▇▇▇▇▇▇ LLP, counsel to the Credit Parties, substantially in the form of Exhibit
A hereto, dated the Effective Date and covering such other matters incident to
the transactions contemplated by this Agreement as the Administrative Agent may
require.
(l) Borrowing Base Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of a Responsible Officer
of the Borrower setting forth information concerning the Borrowing Base as of a
recent date approved by the Administrative Agent.
(m) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the issuance of the
Additional Senior Subordinated Notes and the transactions contemplated herein.
(n) Representations and Warranties. Each of the representations and
warranties made by the Credit Parties and their Subsidiaries in or pursuant to
the Loan Documents shall be true and correct in all material respects on and as
of the date hereof as if made on and as of the date hereof, except for any
representation and warranty which is expressly made as of an earlier date,
which representation and warranty shall have been true and correct in all
material respects as of such earlier date.
17
17. Confirmation of Guarantees. (a) Holdings hereby acknowledges and
confirms its obligations under Section 11 of the Credit Agreement, and agrees
that its guarantee shall continue at all times to support the Borrower's
obligations under all of the Loan Documents, including, without limitation, as
such documents have been heretofore amended or modified, and, to the extent
permitted by applicable law, as may be further amended or modified from time to
time.
(b) The Borrower hereby acknowledges and confirms its obligations
under the Borrower Guarantee and agrees that its guarantee shall continue at
all times to support Camden's obligations and liabilities under any Letters of
Credit issued for the account of Camden, substantially in the form of Exhibit
B-23 to the Credit Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
(c) Camden hereby acknowledges and confirms its obligations under the
Camden Guarantee, and agrees that its guarantee shall continue at all times to
support the Borrower's obligations under all of the Loan Documents, including,
without limitation, as such documents have been heretofore amended or modified,
and, to the extent permitted by applicable law, as may be further amended or
modified from time to time.
18. Assignment and Assumption. (a) The following Lenders: Aeries
Finance Ltd.; Amara - 2 Finance Ltd.; Captiva II Finance Ltd.; Ceres Finance
Ltd.; The First National Bank of Chicago; National City Bank; Restructured
Obligations Backed by Senior Assets B.V.; Strata Funding Ltd.; Integon Life
Insurance Corporation; ▇▇▇▇▇▇ Commercial Paper Inc.; Occidental Life Insurance
Company of North Carolina; Pennsylvania Life Insurance Company; and United
Companies Life Insurance Company (the "Departing Lenders") hereby irrevocably
sell and assign to the Lenders parties hereto excluding the Departing Lenders
but including lenders parties hereto not previously parties to the Credit
Agreement (the "Continuing Lenders") and the Continuing Lenders hereby
irrevocably purchase and assume from the Assigning Lenders without recourse to
the Assigning Lenders, as of the Effective Date, all of the Assigning Lenders
rights and obligations under the Credit Agreement such that the Continuing
Lenders' Revolving Credit Commitments, Tranche A outstandings and Tranche B
outstandings will be as set forth under the relevant headings as on Schedule
1.1.
(b) From and after the Effective Date each of the Departing Lenders
shall relinquish its respective rights and be released from its respective
obligations under the Credit Agreement except as otherwise provided in the
Credit Agreement.
19. Miscellaneous.
(a) Effect. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Loan
Documents shall remain unamended and not waived and shall continue to be in
full force in effect.
(b) Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts, and all of
said counterparts taken together shall
18
be deemed to constitute one and the same instrument. A set of the copies of
this Amendment signed by all the parties shall be lodged with the Borrower and
the Administrative Agent.
(c) Severability. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(d) Integration. This Amendment and the other Loan Documents represent
the agreement of the Credit Parties, the Administrative Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to the subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
(e) GOVERNING LAW. THIS AMENDMENT AND ANY NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT AND ANY NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
(f) Submission To Jurisdiction; Waivers. Each of Holdings, Camden and
the Borrower hereby irrevocably and unconditionally:
(1) submits for itself and its property in any legal action or
proceeding relating to this Amendment and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(2) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(3) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Credit Parties at their respective addresses set forth
in subsection 12.2 of the Credit Agreement or at such other address of
which the Administrative Agent shall have been notified pursuant
thereto;
(4) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to ▇▇▇ in any other jurisdiction; and
(5) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal
19
action or proceeding referred to in this subsection any special,
exemplary, punitive or consequential damages.
(g) Acknowledgements. Each of Holdings, Camden and the Borrower hereby
acknowledges that:
(1) it has been advised by counsel in the negotiation,
execution and delivery of this Amendment and any Notes and the other
Loan Documents;
(2) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Credit Parties arising out
of or in connection with this Amendment or any of the other Loan
Documents, and the relationship between Administrative Agent and
Lenders, on one hand, and the Credit Parties, on the other hand, in
connection herewith or therewith is solely that of debtor and
creditor; and
(3) no joint venture exists among the Lenders or among the
Credit Parties and the Lenders.
(h) WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, CAMDEN, THE
ADMINISTRATIVE AGENT AND THE LENDERS PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AMENDMENT OR ANY NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
(i) Confidentiality. Each Lender party hereto agrees to keep
information obtained by it pursuant hereto and the other Loan Documents
identified as confidential in writing at the time of delivery confidential in
accordance with such Lender's customary practices and agrees that it will only
use such information in connection with the transactions contemplated by this
Amendment and not disclose any of such information other than (a) to such
Lender's employees, representatives, directors, attorneys, auditors, agents or
affiliates who are advised of the confidential nature of such information, (b)
to the extent such information presently is or hereafter becomes available to
such Lender on a non- confidential basis from any source or such information
that is in the public domain at the time of disclosure, (c) to the extent
disclosure is required by law (including applicable securities laws),
regulation, subpoena or judicial order or process (provided that notice of such
requirement or order shall be promptly furnished to the Borrower unless such
notice is legally prohibited) or requested or required by bank, securities or
investment company regulations or auditors or any administrative body or
commission to whose jurisdiction such Lender may be subject, (d) to Transferees
or prospective Transferees or direct or indirect contractual counterparties in
swap agreements, who agree to be bound by the provisions of subsection 12.15 of
the Credit Agreement, (e) to the extent required in connection with any
litigation between any Credit Party and any Lender with respect to the Loans or
this Amendment and the other Loan Documents or (f) with the Borrower's prior
written consent. The agreements in this subsection shall survive repayment of
the Loans and all other amounts payable hereunder.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
INTERNATIONAL WIRE GROUP, INC.,
as Borrower
By:
--------------------------------
Name:
Title:
INTERNATIONAL WIRE HOLDING COMPANY,
as Guarantor
By:
--------------------------------
Name:
Title:
CAMDEN WIRE CO., INC.
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a
Lender,
as Swing Line Lender and as
Issuing Lender
By:
--------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By:
--------------------------------
Name:
Title:
21
AERIES FINANCE LTD.
By:
--------------------------------
Name:
Title:
AMARA - 2 FINANCE LTD.
By:
--------------------------------
Name:
Title: Director
THE BANK OF NEW YORK
By:
--------------------------------
Name:
Title:
BANK OF SCOTLAND
By:
--------------------------------
Name:
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
22
BANQUE PARIBAS
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
--------------------------------
Name:
Title:
CAPTIVA II FINANCE LTD.
By:
--------------------------------
Name:
Title:
CERES FINANCE LTD.
By:
--------------------------------
Name:
Title:
DEBT STRATEGIES FUND, INC.
By:
--------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
--------------------------------
Name:
Title:
23
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
--------------------------------
Name:
Title:
▇▇▇▇▇▇ FINANCIAL, INC.
By:
--------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By:
--------------------------------
Name:
Title:
KZH HOLDING CORPORATION
By:
--------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By:
--------------------------------
Name:
Title:
24
MEDICAL LIABILITY MUTUAL INSURANCE CO.
By: CHANCELLOR LGT SENIOR SECURED
MANAGEMENT, INC. as Investment
Manager
By:
--------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND, INC.
By:
--------------------------------
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
--------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
--------------------------------
Name:
Title:
NATIONAL CITY BANK
By:
--------------------------------
Name:
Title:
25
THE NIPPON CREDIT BANK, LTD.
By:
--------------------------------
Name:
Title:
PRIME INCOME TRUST
By:
--------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
By: PROTECTIVE ASSET MANAGEMENT,
L.L.C. as Collateral Manager
By:
--------------------------------
Name:
Title:
RESTRUCTURED OBLIGATION BACKED BY
SENIOR ASSETS B.V.
By: CHANCELLOR LGT SENIOR SECURED
MANAGEMENT, INC.
as Portfolio Advisor
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
26
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT &
RESEARCH, as Investment
Advisor
By:
--------------------------------
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
By:
--------------------------------
Name:
Title:
STRATA FUNDING LTD.
By:
--------------------------------
Name:
Title:
TCW ASSET MANAGEMENT COMPANY, as
Attorney-in-Fact for Integon Life
Insurance Corporation
By:
--------------------------------
Name:
Title:
TCW ASSET MANAGEMENT COMPANY, as
Attorney-in-Fact for Occidental
Life
Insurance Company of North
Carolina
By:
--------------------------------
Name:
Title:
27
TCW ASSET MANAGEMENT COMPANY, as
Attorney-in-Fact for Pennsylvania
Life Insurance
Company
By:
--------------------------------
Name:
Title:
TCW ASSET MANAGEMENT COMPANY, as
Attorney-in-Fact for United
Companies Life Insurance Company
By:
--------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
--------------------------------
Name:
Title:
DEEPROCK & COMPANY by:
▇▇▇▇▇ ▇▇▇▇▇ Management, as
Investment
Advisor
By:
--------------------------------
Name:
Title: Authorized signatory
CITY NATIONAL BANK
By:
--------------------------------
Name:
Title:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By:
--------------------------------
Name:
Title:
28
ANNEX A
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans (each, a "Revolving Credit Loan", collectively,
"Revolving Credit Loans") to the Borrower from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding, when added to such Revolving Credit Lender's Revolving Credit
Commitment Percentage of all Letter of Credit Outstandings and outstanding
Swing Line Loans, not to exceed the lesser of (i) the amount of such Revolving
Credit Lender's Revolving Credit Commitment less such Revolving Credit Lender's
Revolving Credit Commitment Percentage of any commitment in respect of any
working capital facility described in subsection 8.2(i)(iii) and (ii) such
Lender's Revolving Credit Commitment Percentage of the Borrowing Base then in
effect. During the Revolving Credit Commitment Period the Borrower may use the
Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i) Eurodollar
Loans, (ii) Alternate Base Rate Loans or (iii) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with subsections 2.3 and 2.13.
2.2 Revolving Credit Notes. The Borrower agrees that, upon the request
to the Administrative Agent by any Revolving Credit Lender, in order to
evidence such Lender's Revolving Credit Loans the Borrower will execute and
deliver to such Lender a promissory note substantially in the form of Exhibit
A-1, with appropriate insertions as to payee, date and principal amount (each,
as amended, supplemented, replaced or otherwise modified from time to time, a
"Revolving Credit Note"), payable to the order of such Revolving Credit Lender
and in a principal amount equal to the lesser of (a) the amount of the initial
Revolving Credit Commitment of such Revolving Credit Lender and (b) the
aggregate unpaid principal amount of all Revolving Credit Loans made by such
Revolving Credit Lender. Each Revolving Credit Lender is hereby authorized to
record the date, Type and amount of each Revolving Credit Loan made by such
Revolving Credit Lender, each continuation thereof, each conversion of all or a
portion thereof to another Type, the date and amount of each payment or
prepayment of principal thereof and, in the case of Eurodollar Loans, the
length of each Interest Period with respect thereto, on the schedules annexed
to and constituting a part of its Revolving Credit Note, and any such
recordation shall, in the absence of manifest error, constitute prima facie
evidence of the accuracy of the information so recorded, provided that the
failure by any Revolving Credit Lender to make any such recordation shall not
affect any of the obligations of the Borrower under such Revolving Credit Note
or this Agreement. Any Revolving Credit Note shall (x) be dated the Closing
Date, (y) be stated to mature on the Revolving Credit Commitment Termination
Date and (z) provide for the payment of interest in accordance with subsection
4.1.
29
2
2.3 Procedure for Revolving Credit Borrowing. The Borrower may borrow
under the Revolving Credit Commitments during the Revolving Credit Commitment
Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be initially Eurodollar Loans, or (b)
one Business Day prior to the requested Borrowing Date, otherwise), specifying
(i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether
the borrowing is to be of Eurodollar Loans, Alternate Base Rate Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Periods therefor. Each borrowing
under the Revolving Credit Commitments shall be in an amount equal to (A) in
the case of Alternate Base Rate Loans, $500,000 or a whole multiple of $100,000
in excess thereof (or, if the then Available Revolving Credit Commitments are
less than $500,000, such lesser amount) and (B) in the case of Eurodollar
Loans, $1,000,000 or a whole multiple of $250,000 in excess thereof. Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Revolving Credit Lender thereof. Each Revolving Credit
Lender will make the amount of its pro rata share of each borrowing available
to the Administrative Agent for the account of the Borrower at the office of
the Administrative Agent specified in subsection 12.2 prior to 11:00 A.M., New
York City time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Revolving Credit
Lenders and in like funds as received by the Administrative Agent.
2.4 Commitment Fee; Administrative Agent Fees. (a) The Borrower agrees
to pay to the Administrative Agent for the account of each Revolving Credit
Lender a commitment fee for the period from and including the first day of the
Revolving Credit Commitment Period to the Revolving Credit Commitment
Termination Date, computed at the rate of 1/2 of 1% per annum on the average
daily Available Revolving Credit Commitment of such Revolving Credit Lender
during the period for which payment is made, payable quarterly in arrears on
the last day of each March, June, September and December and on the Revolving
Credit Commitment Termination Date.
(b) The Borrower shall pay to Chase the amounts set forth in the Fee
Letter dated December 26, 1996 among Chase, CSI, Bankers Trust Company, BT
Securities Corporation and the Borrower in the amounts and on the dates set
forth therein.
2.5 Termination or Reduction of Revolving Credit Commitments. (a) The
Borrower shall have the right, upon not less than five Business Days' notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or,
from time to time, reduce the unutilized portion of the amount of the Revolving
Credit Commitments, provided that (i) the Revolving
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Credit Commitments shall not be terminated if any Letters of Credit or Swing
Line Loans are outstanding and (ii) any such termination of the Revolving
Credit Commitments shall be accompanied by prepayment in full of the Revolving
Credit Loans, Swing Line Loans and L/C Obligations then outstanding, together
with accrued interest thereon to the date of such prepayment, cancellation of
all Letters of Credit (unless cash collateralized in accordance with the last
sentence of this paragraph) and the payment of any unpaid commitment fee then
accrued hereunder. Any such reduction shall be in an amount of $500,000, or a
whole multiple of $100,000 in excess thereof, and shall reduce permanently the
amount of the Revolving Credit Commitments then in effect and shall further
include any amounts due in respect thereof under subsection 4.9. Upon
termination of the Revolving Credit Commitments, any Letter of Credit then
outstanding which has been fully cash collateralized upon terms reasonably
satisfactory to the Administrative Agent and the Issuing Lender shall no longer
be considered a "Letter of Credit" as defined in subsection 1.1, and any L/C
Participating Interest heretofore granted by the Issuing Lender to the
Revolving Credit Lenders in such Letter of Credit shall be deemed terminated
but the letter of credit fees payable under subsection 3.3 shall continue to
accrue to the Issuing Lender with respect to such Letter of Credit until the
expiry thereof.
(b) In the case of any reduction of the Revolving Credit Commitments
hereunder, to the extent, if any, that the sum of the Revolving Credit Loans,
Swing Line Loans and the Letter of Credit Outstandings exceeds the Revolving
Credit Commitments as so reduced, the Borrower shall make a prepayment equal to
such excess amount, the proceeds of which shall be applied first, to payment of
the Swing Line Loans then outstanding, second, to payment of the Revolving
Credit Loans then outstanding, third, to payment of any L/C Obligations then
outstanding and last, to cash collateralize any outstanding Letter of Credit on
terms satisfactory to the Required Lenders.
(c) The Revolving Credit Commitments once terminated or reduced may
not be reinstated.
2.6 Term Loans. (a) Each Tranche A Term Loan Lender identified on
Schedule 1.1 hereto has made a term loan (a "Tranche A Term Loan") to the
Borrower the outstanding principal balance of which is set forth opposite such
Lender's name in Schedule 1.1 under the heading "Tranche A Term Loan"
(collectively, the "Tranche A Term Loans").
(b) Each Tranche B Term Loan Lender identified on Schedule 1.1 hereto
has made a Tranche B term loan (a "Tranche B Term Loan") to the Borrower the
outstanding principal balance of which is set forth opposite such Lender's name
in Schedule 1.1 under the heading "Tranche B Term Loan" (collectively, the
"Tranche B Term Loans").
(c) All outstanding Tranche C Term Loans are hereby converted to
Tranche B Term Loans for all purposes hereof on and as of the Effective Date.
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(d) The Term Loans may from time to time be (i) Eurodollar Loans, (ii)
Alternate Base Rate Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with subsection
2.10.
2.7 Tranche A Term Notes. (a) The Borrower agrees that, upon the
request to the Administrative Agent by any Tranche A Term Loan Lender, in order
to evidence such Lender's Tranche A Term Loan the Borrower will execute and
deliver to such Lender a promissory note substantially in the form of Exhibit
A-2 (each, as amended, supplemented, replaced or otherwise modified from time
to time, a "Tranche A Term Note"), with appropriate insertions therein as to
payee, date and principal amount, payable to the order of such Tranche A Term
Loan Lender and in a principal amount equal to the amount set forth opposite
such Tranche A Term Loan Lender's name on Schedule 1.1 under the heading
"Tranche A Term Loan Commitment". Each Tranche A Term Loan Lender is hereby
authorized to record the date, Type and amount of its Tranche A Term Loan, each
continuation thereof, each conversion of all or a portion thereof to another
Type, the date and amount of each payment or prepayment of principal of its
Tranche A Term Loan and, in the case of Eurodollar Loans, the length of each
Interest Period with respect thereto, on the schedules annexed to and
constituting a part of its Tranche A Term Note, and any such recordation shall,
in the absence of manifest error, constitute prima facie evidence of the
accuracy of the information so recorded, provided that the failure by any
Tranche A Term Loan Lender to make any such recordation shall not affect any of
the obligations of the Borrower under such Tranche A Term Note or this
Agreement. Any Tranche A Term Note shall (i) be dated the Closing Date, (ii) be
payable as provided in subsection 2.7(b) and (iii) provide for the payment of
interest in accordance with subsection 4.1.
(b) The aggregate Tranche A Term Loans of all the Tranche A Term Loan
Lenders shall be payable in 21 consecutive quarterly installments on the dates
and in a principal amount equal to the amount set forth below (together with
all accrued interest thereon) opposite the applicable installment date (or, if
less, the aggregate amount of the Tranche A Term Loans then outstanding):
Installment Amount
----------- ------
September 30, 1997 $625,000.00
December 31, 1997 $625,000.00
March 31, 1998 $625,000.00
June 30, 1998 $625,000.00
September 30, 1998 $625,000.00
December 31, 1998 $625,000.00
March 31, 1999 $937,500.00
June 30, 1999 $937,500.00
September 30, 1999 $937,500.00
December 31, 1999 $937,500.00
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March 31, 2000 $1,250,000.00
June 30, 2000 $1,250,000.00
September 30, 2000 $1,250,000.00
December 31, 2000 $1,250,000.00
March 31, 2001 $1,562,500.00
June 30, 2001 $1,562,500.00
September 30, 2001 $1,562,500.00
December 31, 2001 $1,562,500.00
March 31, 2002 $2,000,000.00
June 30, 2002 $2,000,000.00
September 30, 2002 $2,250,000.00
2.8 Tranche B Term Notes. (a) The Borrower agrees that, upon the
request to the Administrative Agent by any Tranche B Term Loan Lender, in order
to evidence such Lender's Tranche B Term Loan the Borrower will execute and
deliver to such Lender a promissory note substantially in the form of Exhibit
A-3 (each, as amended, supplemented, replaced or otherwise modified from time
to time, a "Tranche B Term Note"; Tranche A Term Notes, and Tranche B Term
Notes when hereinafter referred to collectively shall be referred to as "Term
Notes"), with appropriate insertions therein as to payee, date and principal
amount, payable to the order of such Tranche B Term Loan Lender and in a
principal amount equal to the amount set forth opposite such Tranche B Term
Loan Lender's name on Schedule 1.1 under the heading "Tranche B Term Loan
Commitment." Each Tranche B Term Loan Lender is hereby authorized to record the
date, Type and amount of its Tranche B Term Loan, each continuation thereof,
each conversion of all or a portion thereof to another Type, the date and
amount of each payment or prepayment of principal of its Tranche B Term Loan
and, in the case of Eurodollar Loans, the length of each Interest Period with
respect thereto, on the schedules annexed to and constituting a part of its
Tranche B Term Note, and any such recordation shall, in the absence of manifest
error, constitute prima facie evidence of the accuracy of the information so
recorded, provided that the failure by any Tranche B Term Loan Lender to make
any such recordation shall not affect any of the obligations of the Borrower
under such Tranche B Term Note or this Agreement. Any Tranche B Term Note shall
(i) be dated the Closing Date, (ii) be payable as provided in subsection 2.8(b)
and (iii) provide for the payment of interest in accordance with subsection
4.1.
(b) The aggregate Tranche B Term Loans of all the Tranche B Term Loan
Lenders shall be payable in 25 consecutive quarterly installments on the dates
and in a principal amount equal to the amount set forth below (together with
all accrued interest thereon) opposite the applicable installment date (or, if
less, the aggregate amount of the Tranche B Term Loans then outstanding):
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Installment Amount
----------- ------
September 30, 1997 $250,000.00
December 31, 1997 $250,000.00
March 31, 1998 $250,000.00
June 30, 1998 $250,000.00
September 30, 1998 $250,000.00
December 31, 1998 $250,000.00
March 31, 1999 $250,000.00
June 30, 1999 $250,000.00
September 30, 1999 $250,000.00
December 31, 1999 $250,000.00
March 31, 2000 $250,000.00
June 30, 2000 $250,000.00
September 30, 2000 $250,000.00
December 31, 2000 $250,000.00
March 31, 2001 $250,000.00
June 30, 2001 $250,000.00
September 30, 2001 $250,000.00
December 31, 2001 $250,000.00
March 31, 2002 $500,000.00
June 30, 2002 $500,000.00
September 30, 2002 $500,000.00
December 31, 2002 $38,625,000.00
March 31, 2003 $38,625,000.00
June 30, 2003 $38,625,000.00
September 30, 2003 $38,625,000.00
2.9 [Intentionally Omitted].
2.10 Repayment of Loans. (a) [Intentionally Omitted].
(b) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of: (i) each Revolving Credit Lender, the
then unpaid principal amount of each Revolving Credit Loan of such Lender, on
the Revolving Credit Commitment Termination Date (or such earlier date on which
the Revolving Credit Loans become due and payable pursuant to Section 9); (ii)
the Swing Line Lender, the then unpaid principal amount of the Swing Line
Loans, on the Revolving Credit Commitment Termination Date (or such earlier
date on which the Swing Line Loans become due and payable pursuant to Section
9); (iii) each Tranche A Term Loan Lender, such Tranche A Term Loan Lender's
Tranche A Term Loan Commitment Percentage of the amounts specified in
subsection 2.7(b) (or, if less, the aggregate amount of the Tranche A Term
Loans of such Tranche A Term Loan Lender then outstanding), on the dates
specified in subsection 2.7(b) (or such earlier date on which the Tranche A
Term Loans become due and payable pursuant to Section 9); and (iv) each Tranche
B Term Loan Lender, such Tranche B Term Loan Lender's Tranche B Term Loan
Commitment Percentage of the amounts specified in subsection 2.8(b) (or, if
less, the aggregate amount of the Tranche B Term Loans of such
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Tranche B Term Loan Lender then outstanding), on the dates specified in
subsection 2.8(b) (or such earlier date on which the Tranche B Term Loans
become due and payable pursuant to Section 9). The Borrower hereby further
agrees to pay interest on the unpaid principal amount of the Loans from time to
time outstanding from the date hereof until payment in full thereof at the
rates per annum, and on the dates, set forth in subsection 4.1.
(c) Each Lender (including the Swing Line Lender) shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(d) The Administrative Agent shall maintain the Register pursuant to
subsection 12.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period, if any, applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(e) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 2.10(c) shall, in the absence of manifest
error and to the extent permitted by applicable law, be prima facie evidence of
the existence and amounts of the obligations of the Borrower therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent
to maintain the Register or any such account, or any error therein, shall not
in any manner affect the obligation of the Borrower to repay (with applicable
interest) the Loans made to the Borrower by such Lender in accordance with the
terms of this Agreement.
2.11 Optional Prepayments. (a) The Borrower may, at any time and from
time to time, prepay the Loans, in whole or in part, without premium or
penalty, upon at least three Business Days' irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment and whether
the prepayment is of (i) Eurodollar Loans, Alternate Base Rate Loans or a
combination thereof, and, if of a combination thereof, the amount allocable to
each and (ii) Tranche A Term Loans, Tranche B Term Loans, Revolving Credit
Loans or a combination thereof, and if of a combination thereof, the amount
allocable to each. Upon receipt of any such notice the Administrative Agent
shall promptly notify each Term Loan Lender or Revolving Credit Lender, as the
case may be, thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with,
in the case of prepayments of the Term Loans only, accrued interest to such
date on the amount prepaid. Optional prepayments of the Term Loans shall be
applied, with respect to the first $10,000,000 of such prepayments, to
installments of the Term Loans as the Borrower may elect (other than scheduled
installments of the Tranche B
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Term Loans prior to December 31, 2002) and, with respect to any amount of such
prepayments in excess of $10,000,000, such prepayments shall be applied pro
rata to the Term Loans based upon the then outstanding principal amounts of the
Tranche A Term Loans and Tranche B Term Loans (with each Tranche A Term Loan
and Tranche B Term Loan to be allocated that percentage of the amount to be
applied as is equal to a fraction (expressed as a percentage), the numerator of
which is the then outstanding principal amount of such Tranche A Term Loan and
Tranche B Term Loan, as the case may be, and the denominator of which is equal
to the then outstanding principal amount of all Term Loans).
(b) With respect to optional prepayments of the Term Loans after
$10,000,000 of optional prepayments shall have been made, the amount of each
principal payment of Term Loans shall be applied to reduce the then remaining
installments of the Tranche A Term Loans and Tranche B Term Loans, pro rata
based upon the then remaining number of installments of such Tranche A Term
Loans or Tranche B Term Loans, as the case may be, after giving effect to all
prior reductions thereto (i.e., each then remaining installment of the Tranche
A Term Loans or Tranche B Term Loans, as the case may be, shall be reduced by
an amount equal to the aggregate amount to be applied to the Tranche A Term
Loans or Tranche B Term Loans, as the case may be, divided by the number of the
then remaining installments for such Tranche A Term Loans or Tranche B Term
Loans); provided, that if the amount to be applied to any installment as
required by this Agreement would exceed the then remaining amount of such
installment, then an amount equal to such excess shall be applied to the next
succeeding installment after giving effect to all prior reductions thereto
(including the amount of prepayments theretofore allocated pursuant to the
preceding portion of this sentence). Amounts prepaid on account of the Term
Loans may not be reborrowed. Partial prepayments shall be in an aggregate
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
and shall include any amounts due in respect thereof under subsection 4.9.
2.12 Mandatory Prepayments and Revolving Credit Commitment Reductions.
(a) If, subsequent to the Second Amendment Closing Date, unless the Required
Lenders (and Tranche A Term Loan Lenders and Tranche B Term Loan Lenders having
in the aggregate at least a majority of the outstanding Term Loans) and the
Borrower shall otherwise agree, Holdings or any of its Subsidiaries shall issue
any class of Capital Stock other than a Permitted Issuance or incur any
Indebtedness other than any Indebtedness permitted pursuant to subsection 8.2
or 11.6(i), 100% of the Net Cash Proceeds thereof shall on the first Business
Day after receipt, be applied toward the prepayment of the Loans and reduction
of Commitments as set forth in paragraph (d) of this subsection 2.12.
(b) Unless the Required Lenders (and Tranche A Term Loan Lenders and
Tranche B Term Loan Lenders having in the aggregate at least a majority of the
outstanding Term Loans) and the Borrower shall otherwise agree, if the Borrower
or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale
(including the sale and leaseback of assets and any sale of
36
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accounts receivable in connection with a receivable financing transaction) such
Net Cash Proceeds shall, on the first Business Day after receipt, be applied
toward the prepayment of the Loans and reduction of Commitments as set forth in
paragraph (d) of this subsection 2.12.
(c) Unless the Required Lenders (and Tranche A Term Loan Lenders and
Tranche B Term Loan Lenders having in the aggregate at least a majority of the
outstanding Term Loans) and the Borrower shall otherwise agree, if for any
fiscal year, commencing with the fiscal year ending December 31, 1996 there
shall be Excess Cash Flow for such fiscal year, the ECF Percentage of such
Excess Cash Flow shall be applied toward prepayment of the Loans and reduction
of the Commitments as set forth in paragraph (d) of this subsection 2.12. Each
such prepayment shall be made on or before the date which is seven Business
Days after the earlier of (A) the date on which the financial statements
referred to in subsection 7.1(a) are required to be delivered to the Lenders
and (B) the date on which said financial statements are actually delivered.
(d) All mandatory prepayments shall be applied first to the Term Loans
and second to the permanent reduction of the Revolving Credit Commitments. The
application of prepayments referred to in the preceding sentence shall be made
first to Alternate Base Rate Loans and second to Eurodollar Loans. Each
mandatory prepayment of the Term Loans shall be applied pro rata to the Term
Loans based upon the then outstanding principal amounts of the Tranche A Term
Loans and Tranche B Term Loans (with each Tranche A Term Loan and Tranche B
Term Loan to be allocated that percentage of the amount to be applied as is
equal to a fraction (expressed as a percentage), the numerator of which is the
then outstanding principal amount of such Tranche A Term Loan or Tranche B Term
Loan, as the case may be, and the denominator of which is equal to the then
outstanding principal amount of all Term Loans).
The amount of each principal prepayment of Term Loans shall be applied
to reduce the then remaining installments of the Tranche A Term Loans and
Tranche B Term Loans, pro rata based upon the then remaining number of
installments of such Tranche A Term Loans or Tranche B Term Loans, as the case
may be, after giving effect to all prior reductions thereto (i.e., each then
remaining installment of the Tranche A Term Loans or Tranche B Term Loans, as
the case may be, shall be reduced by an amount equal to the aggregate amount to
be applied to the Tranche A Term Loans or Tranche B Term Loans, as the case may
be, divided by the number of the then remaining installments for such Tranche A
Term Loans or Tranche B Term Loans); provided, that if the amount to be applied
to any installment as required by this Agreement would exceed the then
remaining amount of such installment, then an amount equal to such excess shall
be applied to the next succeeding installment after giving effect to all prior
reductions thereto (including the amount of prepayments theretofore allocated
pursuant to the preceding portion of this sentence). Amounts prepaid on account
of the Term Loans may not be reborrowed.
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(e) If at any time the sum of the Revolving Credit Loans, Swing Line
Loans and the Letter of Credit Outstandings exceeds the lesser of (i) the
Borrowing Base as then in effect and (ii) the Revolving Credit Commitments less
the amount of any commitment in respect of any working capital facility
described in subsection 8.2(i)(iii) (including at any time after any reduction
of the Revolving Credit Commitments pursuant to subsection 2.5 or this
subsection 2.12), the Borrower shall make a payment in the amount of such
excess which payment shall be applied in the order set forth in subsection
2.5(b). To the extent that after giving effect to any prepayment of the Loans
required by the preceding sentence, the sum of the Revolving Credit Loans,
Swing Line Loans and Letter of Credit Outstandings exceed the lesser of clauses
(i) and (ii) above, the Borrower shall, without notice or demand, immediately
cash collateralize the then outstanding L/C Obligations in an amount equal to
such excess upon terms reasonably satisfactory to the Administrative Agent.
(f) If at any time the Borrower or any Subsidiary shall receive any
cash proceeds of any casualty or condemnation in excess of $2,000,000 permitted
by subsection 8.6(c), such proceeds shall be deposited with the Administrative
Agent who shall hold such proceeds in a cash collateral account satisfactory to
it. From time to time upon request, the Administrative Agent will release such
proceeds to the Borrower or such Subsidiary, as necessary, to pay for
replacement or rebuilding of the assets lost or condemned. If such assets are
not replaced or rebuilt within one year (subject to reasonable extension for
force majeure or weather delays) following the condemnation or casualty or if
the Borrower fails to notify the Administrative Agent in writing on or before
180 days after such casualty or condemnation that the Borrower shall commence
the replacement or rebuilding of such asset, then, in either case, the
Administrative Agent may apply any amounts in the cash collateral account to
the repayment of the Loans in accordance with subsection 2.12(d).
(g) If there shall be any reduction in the price under the Omega
Acquisition Agreement, the Omega Escrow Agreement (other than (i) any reduction
in the purchase price described in subsection 1.09(a)(ii) of the Omega
Acquisition Agreement to the extent, and only to the extent that any such
reduction does not exceed $500,000 in the aggregate and (ii) any reduction in
the purchase price which is due to a breach of any covenant, representation or
warranty in the Omega Acquisition Agreement by any party thereto other than the
Borrower which, due to such party's refusal or other failure to cure, is cured
with such reduction) pursuant to the terms thereof, then on the same Business
Day as the Borrower receives any payment in respect thereof, the Borrower
shall, unless the Required Lenders and the Borrower shall otherwise agree,
repay the Loans in the amount of such reduction to be applied first to the Term
Loans in accordance with subsection 2.12(d) and second to the permanent
reduction of the Revolving Credit Commitments. The application of prepayments
referred to in the preceding sentence shall be made first to Alternate Base
Rate Loans and second to Eurodollar Loans. Each mandatory prepayment of the
Term Loans pursuant to
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this subsection 2.12(g) shall be applied to the remaining installments thereof
in accordance with subsection 2.12(d). To the extent that after giving effect
to any prepayment of the Loans required by the preceding sentence, the sum of
the Revolving Credit Loans, Swing Line Loans and Letter of Credit Outstandings
exceed the lesser of (i) the Borrowing Base and (ii) the Revolving Credit
Commitments as then reduced, the Borrower shall, without notice or demand,
immediately cash collateralize the then outstanding L/C Obligations in an
amount equal to such excess upon terms reasonably satisfactory to the
Administrative Agent.
(h) If there shall be any reduction in the price under any of the
Acquisition Documents or the Camden Acquisition Documents (other than (i) an
adjustment due to working capital adjustments as contemplated by the
Acquisition Documents or the Camden Acquisition Documents, as the case may be,
or (ii) any reduction in the purchase price which is due to a breach of any
covenant, representation or warranty in any Acquisition Agreement or Camden
Acquisition Document, as the case may be, by any party thereto other than the
Borrower which, due to such party's refusal or other failure to cure, is cured
with such reduction) pursuant to the terms thereof, then on the same Business
Day as the Borrower receives any payment in respect thereof, the Borrower
shall, unless the Required Lenders and the Borrower shall otherwise agree,
repay the Loans in the amount of such reduction to be applied first to the Term
Loans in accordance with subsection 2.12(d) and second to the permanent
reduction of the Revolving Credit Commitments. The application of prepayments
referred to in the preceding sentence shall be made first to Alternate Base
Rate Loans and second to Eurodollar Loans. Each mandatory prepayment of the
Term Loans pursuant to this subsection 2.12(h) shall be applied to the
remaining installments thereof in accordance with subsection 2.12(d). To the
extent that after giving effect to any prepayment of the Loans required by the
preceding sentence, the sum of the Revolving Credit Loans, Swing Line Loans and
Letter of Credit Outstandings exceed the lesser of (i) the Borrowing Base and
(ii) the Revolving Credit Commitments as then reduced, the Borrower shall,
without notice or demand, immediately cash collateralize the then outstanding
L/C Obligations in an amount equal to such excess upon terms reasonably
satisfactory to the Administrative Agent.
(i) The provisions of this subsection 2.12 shall not be in derogation
of any other covenant or obligation of the Borrower and its Subsidiaries under
the Loan Documents and shall not be construed as a waiver of, or a consent to
departure from, any such covenant or obligation.
(j) Notwithstanding the foregoing provisions of this subsection 2.12,
if at any time the mandatory prepayment of the Term Loans pursuant to this
Agreement would result, after giving effect to the procedures set forth in this
Agreement, in the Borrower incurring breakage costs and other Eurodollar Loans
related costs under subsection 4.6, 4.7 or 4.8 as a result of Eurodollar Loans
being prepaid other than on the last day of an Interest Period applicable
thereto ("Affected Eurodollar Loans") which breakage costs are required to be
paid pursuant to
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subsection 4.9, then, the Borrower may so long as no Default or Event of
Default shall have occurred and be continuing, in its sole discretion,
initially deposit a portion (up to 100%) of the amounts that otherwise would
have been paid in respect to the Affected Eurodollar Loans with the
Administrative Agent (which deposit must be equal in amount to the amount of
Affected Eurodollar Loans not immediately prepaid) to be held as security for
the obligations of the Borrower to make such mandatory prepayment pursuant to a
cash collateral agreement to be entered into in form and substance reasonably
satisfactory to the Administrative Agent, with such cash collateral to be
directly applied upon the first occurrence (or occurrences) thereafter of the
last day of an Interest Period applicable to the relevant Term Loan that is a
Eurodollar Loan (or such earlier date or dates as shall be requested by the
Borrower), to repay an aggregate principal amount of such Term Loan equal to
the Affected Eurodollar Loans not initially repaid pursuant to this sentence.
2.13 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to Alternate Base Rate Loans, by
giving the Administrative Agent at least two Business Days' prior irrevocable
notice of such election, provided that, unless the Borrower elects to deposit
with the Administrative Agent the amount of any breakage costs and other
Eurodollar Loan related costs to be incurred by the Borrower under this
Agreement with respect to the prepayment or conversion of such Eurodollar Loan
prior to the end of an Interest Period, any such conversion of Eurodollar Loans
may only be made on the last day of an Interest Period with respect thereto.
The Borrower may elect from time to time to convert Alternate Base Rate Loans
to Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election. Any such notice of conversion
to Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Term Loan Lender or Revolving Credit Lender,
as the case may be, thereof. All or any part of outstanding Eurodollar Loans
and Alternate Base Rate Loans may be converted as provided herein, provided
that (i) no Alternate Base Rate Loan may be converted into a Eurodollar Loan
when any Default or Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined that such a
conversion is not appropriate and (ii) any such conversion may only be made if,
after giving effect thereto, subsection 2.14 shall not have been contravened.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
notice to the Administrative Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, of the
length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan may be continued as such (i) when any Event of Default
has occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined that such a continuation is not appropriate or (ii) if,
after
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giving effect thereto, subsection 2.14 would be contravened and provided,
further, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Eurodollar Loans shall be automatically
converted to Alternate Base Rate Loans on the last day of such then expiring
Interest Period.
2.14 Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Eurodollar Tranche shall be equal to $1,000,000 or a whole
multiple of $250,000 in excess thereof and so that there shall not be more than
15 Eurodollar Tranches at any one time outstanding.
2.15 Swing Line Commitment. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") to the Borrower from
time to time during the Revolving Credit Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed $12,500,000,
provided that at no time may the sum of the Swing Line Loans, the Revolving
Credit Loans and Letter of Credit Outstandings exceed the lesser of (i) the
Revolving Credit Commitments less the amount of any commitment in respect of
any working capital facility described in subsection 8.2(i)(iii) and (ii) the
Borrowing Base then in effect. During the Revolving Credit Commitment Period,
the Borrower may use the Swing Line Commitment by borrowing, prepaying the
Swing Line Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof. All Swing Line Loans shall be made as
Alternate Base Rate Loans and shall not be entitled to be converted into
Eurodollar Loans. The Borrower shall give the Swing Line Lender irrevocable
notice (which notice must be received by the Swing Line Lender prior to 12:00
Noon, New York City time) on the requested Borrowing Date specifying the amount
of the requested Swing Line Loan which shall be in an aggregate minimum amount
of $150,000 or a whole multiple of $25,000 in excess thereof. The proceeds of
the Swing Line Loan will be made available by the Swing Line Lender to the
Borrower at the office of the Swing Line Lender by 3:00 p.m. on the Borrowing
Date by crediting the account of the Borrower at such office with such
proceeds. The Borrower may at any time and from time to time, prepay the Swing
Line Loans, in whole or in part, without premium or penalty, by notifying the
Swing Line Lender prior to 12:00 Noon on any Business Day of the date and
amount of prepayment. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein. Partial
prepayments shall be in an aggregate principal amount of $150,000 or a whole
multiple of $25,000 in excess thereof.
(b) The Borrower agrees that, upon the request to the Administrative
Agent by the Swing Line Lender, in order to evidence the Swing Line Loans the
Borrower will execute and deliver to the Swing Line Lender a promissory note
substantially
41
14
in the form of Exhibit A-5, with appropriate insertions (as the same may be
amended, supplemented, replaced or otherwise modified from time to time, the
"Swing Line Note"), payable to the order of the Swing Line Lender and
representing the obligation of the Borrower to pay the amount of the Swing Line
Commitment or, if less, the unpaid principal amount of the Swing Line Loans,
with interest thereon as prescribed in subsection 4.1. The Swing Line Lender is
hereby authorized to record the Borrowing Date, the amount of each Swing Line
Loan and the date and amount of each payment or prepayment of principal
thereof, on the schedule annexed to and constituting a part of the Swing Line
Note and any such recordation shall, in the absence of manifest error,
constitute prima facie evidence of the accuracy of the information so recorded,
provided that the failure by the Swing Line Lender to make any such recordation
shall not affect any of the obligations of the Borrower under such Swing Line
Note or this Agreement. Any Swing Line Note shall (a) be dated the Closing
Date, (b) be stated to mature on the Revolving Credit Commitment Termination
Date and (c) bear interest for the period from the date thereof until paid in
full on the unpaid principal amount thereof from time to time outstanding at
the applicable interest rate per annum determined as provided in, and payable
as specified in, subsection 4.1.
(c) The Swing Line Lender, at any time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs the
Swing Line Lender to act on its behalf) request each Revolving Credit Lender
including the Swing Line Lender, to make a Revolving Credit Loan in an amount
equal to such Lender's Revolving Credit Commitment Percentage of the amount of
the Swing Line Loans outstanding on the date such notice is given (the
"Refunded Swing Line Loans"). Unless any of the events described in paragraph
(f) of Section 9 shall have occurred with respect to the Borrower (in which
event the procedures of paragraph (e) of this subsection 2.15 shall apply) each
Revolving Credit Lender shall make the proceeds of its Revolving Credit Loan
available to the Administrative Agent for the account of the Swing Line Lender
at the office of the Administrative Agent specified in subsection 12.2 prior to
12:00 Noon (New York City time) in funds immediately available on the Business
Day next succeeding the date such notice is given. The proceeds of such
Revolving Credit Loans shall be immediately applied to repay the Refunded Swing
Line Loans. Effective on the day such Revolving Credit Loans are made, the
portion of the Swing Line Loans so paid shall no longer be outstanding as Swing
Line Loans, shall no longer be due under any Swing Line Note and shall be due
under the respective Revolving Credit Loans issued to the Revolving Credit
Lenders in accordance with their respective Revolving Credit Commitment
Percentages. The Borrower authorizes the Swing Line Lender to charge the
Borrower's accounts with the Administrative Agent (up to the amount available
in each such account) in order to immediately pay the amount of such Refunded
Swing Line Loans to the extent amounts received from the Revolving Credit
Lenders are not sufficient to repay in full such Refunded Swing Line Loans.
(d) Notwithstanding anything herein to the contrary, the Swing Line
Lender shall not be obligated to make any Swing Line Loans if the conditions
set forth in subsection 6.2 have not been satisfied.
42
15
(e) If prior to the making of a Revolving Credit Loan pursuant to
paragraph (c) of subsection 2.15 one of the events described in paragraph (f)
of Section 9 shall have occurred and be continuing with respect to the
Borrower, each Revolving Credit Lender will, on the date such Revolving Credit
Loan was to have been made pursuant to the notice in subsection 2.15(c),
purchase an undivided participating interest in the Refunded Swing Line Loan in
an amount equal to (i) its Revolving Credit Commitment Percentage times (ii)
the Refunded Swing Line Loans. Each Revolving Credit Lender will immediately
transfer to the Swing Line Lender, in immediately available funds, the amount
of its participation, and upon receipt thereof the Swing Line Lender will
deliver to such Revolving Credit Lender a Swing Line Loan Participation
Certificate dated the date of receipt of such funds and in such amount.
(f) Whenever, at any time after any Revolving Credit Lender has
purchased a participating interest in a Swing Line Loan, the Swing Line Lender
receives any payment on account thereof, the Swing Line Lender will distribute
to such Revolving Credit Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Revolving Credit Lender's participating
interest was outstanding and funded); provided, however, that in the event that
such payment received by the Swing Line Lender is required to be returned, such
Revolving Credit Lender will return to the Swing Line Lender any portion
thereof previously distributed by the Swing Line Lender to it.
(g) Each Revolving Credit Lender's obligation to make the Loans
referred to in subsection 2.15(c) and to purchase participating interests
pursuant to subsection 2.15(e) shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, (i) any
set-off, counterclaim, recoupment, defense or other right which such Revolving
Credit Lender or the Borrower may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or an Event of Default; (iii) any adverse change in
the condition (financial or otherwise) of the Borrower; (iv) any breach of this
Agreement or any other Loan Document by the Borrower, Holdings, any of their
Subsidiaries or any other Lender; or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
43
1
SCHEDULE 1.1 TO
AMENDMENT
ADDRESSES FOR NOTICES; REVOLVING CREDIT COMMITMENTS; TERM LOANS OUTSTANDING
THE BANK OF NEW YORK
Address for Notice:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $6,000,000.00
Tranche A Term Loan Outstanding: $2,000,000.00
Tranche B Term Loan Outstanding: 0.00
BANK OF SCOTLAND
Address for Notice:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $3,937,500.00
Tranche A Term Loan Outstanding: $1,312,500.00
Tranche B Term Loan Outstanding: 0.00
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
Address for Notice:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $3,937,500.00
Tranche A Term Loan Outstanding: $1,312,500.00
Tranche B Term Loan Outstanding: 0.00
BANKERS TRUST COMPANY
Address for Notice:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $6,000,000.00
Tranche A Term Loan Outstanding: $2,000,000.00
Tranche B Term Loan Outstanding: $3,000,000.00
44
2
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
Address for Notice:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $4,500,000.00
Tranche A Term Loan Outstanding: $1,500,000.00
Original Tranche B Term Loan Outstanding: 0.00
BANQUE PARIBAS
Address for Notice:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $3,937,500.00
Tranche A Term Loan Outstanding: $1,312,500.00
Tranche B Term Loan Outstanding: 0.00
CAISSE NATIONALE DE CREDIT AGRICOLE
Address for Notice:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $6,000,000.00
Tranche A Term Loan Outstanding: $2,000,000.00
Tranche B Term Loan Outstanding: 0.00
45
3
THE CHASE MANHATTAN BANK
Address for Notice:
c/o Chase Securities Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $11,812,500.00
Tranche A Term Loan Outstanding: $3,937,500.00
Tranche B Term Loan Outstanding: $55,500,000.00
CITY NATIONAL BANK
Address for Notice:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $3,750,000.00
Tranche A Term Loan Outstanding: $1,250,000.00
Tranche B Term Loan Outstanding: $0.00
DEBT STRATEGIES FUND, INC.
Address for Notice:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: 0.00
Tranche A Term Loan Outstanding: 0.00
Tranche B Term Loan Outstanding: $5,000,000.00
DEEPROCK & COMPANY
Address for Notice:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇ Management
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: 0.00
Tranche A Term Loan Outstanding: 0.00
Tranche B Term Loan Outstanding: $2,000,000.00
46
GENERAL ELECTRIC CAPITAL CORPORATION
Address for Notice:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
4
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $3,937,500.00
Tranche A Term Loan Outstanding: $1,312,500.00
Tranche B Term Loan Outstanding: 0.00
▇▇▇▇▇▇ FINANCIAL, INC.
Address for Notice:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $6,000,000.00
Tranche A Term Loan Outstanding: $2,000,000.00
Tranche B Term Loan Outstanding: 0.00
THE INDUSTRIAL BANK OF JAPAN, LIMITED
Address for Notice:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $3,937,500.00
Tranche A Term Loan Outstanding: $1,312,500.00
Tranche B Term Loan Outstanding: 0.00
KZH HOLDING CORPORATION
Address for Notice:
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: 0.00
Tranche A Term Loan Outstanding: 0.00
Original Tranche B Term Loan Outstanding: $3,500,000.00
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED, NEW YORK BRANCH
Address for Notice:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $6,750,000.00
Tranche A Term Loan Outstanding: $2,250,000.00
Tranche B Term Loan Outstanding: 0.00
47
5
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND, INC.
Address for Notice:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: 0.00
Tranche A Term Loan Outstanding: 0.00
Tranche B Term Loan Outstanding: $20,000,000.00
THE MITSUBISHI TRUST AND BANKING CORPORATION
Address for Notice:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rock
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: $4,500,000.00
Tranche A Term Loan Outstanding: $1,500,000.00
Tranche B Term Loan Outstanding: 0.00
ML CBO IV (CAYMAN) LTD.
Address for Notice:
1150 Two Galleria Tower
13455 ▇▇▇▇ Road-LB#45
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: 0.00
Tranche A Term Loan Outstanding: 0.00
Tranche B Term Loan Outstanding: $6,500,000.00
PRIME INCOME TRUST
Address for Notice:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: 0.00
Tranche A Term Loan Outstanding: 0.00
Tranche B Term Loan Outstanding: $13,000,000.00
48
6
SENIOR DEBT PORTFOLIO
Address for Notice:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: 0.00
Tranche A Term Loan Outstanding: 0.00
Tranche B Term Loan Outstanding: $24,000,000.00
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE INCOME TRUST
Address for Notice:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Revolving Credit Commitment: 0.00
Tranche A Term Loan Outstanding: 0.00
Tranche B Term Loan Outstanding: $28,000,000.00
49
1
SCHEDULE 5.4 TO
AMENDMENT
REQUIRED CONSENTS
- NONE -