Exhibit 10.1
THIRD AMENDMENT
TO SECOND AMENDED AND RESTATED
MULTICURRENCY REVOLVING CREDIT AND
TERM LOAN AGREEMENT
Third Amendment, dated as of March_22, 1999 (the "Effective Date"), to
Second Amended and Restated Multicurrency Revolving Credit and Term Loan
Agreement (this "Amendment"), by and among (a) SAMSONITE CORPORATION, a Delaware
corporation (the "Company"), (b) SAMSONITE EUROPE N.V., a corporation organized
under the laws of Belgium ("Samsonite Europe") and (c) BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, BANKBOSTON, N.A. and the other lending
institutions from time to time listed on Schedule_1 to the Credit Agreement (as
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hereinafter defined) (collectively, the "Lenders"), amending certain provisions
of the Second Amended and Restated Multicurrency Revolving Credit and Term Loan
Agreement dated as of June_24, 1998, as amended by the First Amendment thereto,
dated as of October_1, 1998, and the Second Amendment and Waiver thereto, dated
as of January_29, 1999, and as the same may be further amended, modified,
supplemented, and in effect from time to time (the "Credit Agreement"), by and
among the Company, Samsonite Europe, the Lenders, BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as administrative agent for the Agents and the Lenders
(the "Administrative Agent"), BANKBOSTON, N.A., as syndication agent for the
Agents and the Lenders (the "Syndication Agent"), GENERALE BANK N.V., as foreign
agent for the Agents and the Lenders (the "Foreign Agent"), and as fronting bank
(the "Fronting Bank"), CANADIAN IMPERIAL BANK OF COMMERCE, as documentation
agent for the Agents and the Lenders (the "Documentation Agent"), and the other
parties thereto. Terms not otherwise defined herein which are defined in the
Credit Agreement shall have the same respective meanings herein as therein.
WHEREAS, the Borrowers and the Lenders have agreed to modify certain terms
and conditions of the Credit Agreement as specifically set forth in this
Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
(S)1. Amendments to the Credit Agreement.__Subject to the satisfaction
---------- -- --- ------ ---------
of the applicable conditions precedent set forth in Section 3 hereof, the Credit
Agreement is hereby amended as follows:
2
(S)1.1. Applicable Margin.__(a) Effective as of the Effective Date, the
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table contained in the definition of Applicable Margin in Section 1.1 of the
Credit Agreement is hereby amended by substituting the following replacement
table for the existing table:
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Eurodollar
Rate Loans Documentary
(other than Letter of
the Domestic Credit Fee
Term Loan), Eurodollar Rate and
Multicurrency Rate Foreign Base Rate Base Rate
Loans, and Loans that Documentary Loans Loans that
Multicurrency are the Letter of (other than are the
Pricing Leverage Swing Line Domestic Credit Fee Domestic Domestic Commitment
Tier Ratio Loans Term Rate Term Term Fee Rate
Loan Loan) Loan
---------------------------------------------------------------------------------------------------------------------
Tier 5 Greater 3.25% 3.75% 2.25% 2.25% 2.75% 0.625%
than or
equal to
6.50:1.00
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Tier 4 Less than 3.00% 3.50% 2.00% 2.00% 2.50% 0.625%
6.50:1.00,
but
greater
than or
equal to
5.50:1.00
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Tier 3 Less than 2.50% 3.00% 1.80% 1.50% 2.00% 0.500%
5.50:1.00,
but
greater
than or
equal to
4.50:1.00
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Tier 2 Less than 2.00% 2.50% 1.50% 1.00% 1.50% 0.500%
4.50:1.00,
but
greater
than or
equal to
3.50:1.00
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Tier 1 Less than 1.50% 2.00% 1.00% 0.50% 1.00% 0.500%
3.50:1.00
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(b) Paragraph (a) of the definition of Applicable Margin is hereby amended
by substituting the phrase "the highest pricing tier" for the phrase "Tier 7" in
such paragraph (a) of such definition.
(c) Paragraph (c) of the definition of Applicable Margin is hereby amended
by substituting the phrase "the highest pricing tier" for the phrase "Tier 7" in
such paragraph (c) of such definition.
3
(S)1.2. Subordinated Note Purchases.__The definition of Subordinated Note
---------------------------
Purchases (as added by the First Amendment to the Credit Agreement) is hereby
amended by inserting into clause (a) thereof, immediately after the word
"consideration" the phrase "(excluding consideration consisting of common stock
of the Company or rights to acquire such stock)" and immediately after the word
"purchases", the phrase "and for Preferred Stock Purchases, taken together, in
each case" in such clause (a) of such definition, and by inserting into clause
(c) thereof, immediately after the word "consideration" the phrase "(excluding
consideration consisting of common stock of the Company or rights to acquire
such stock)".
(S)1.3. Preferred Stock Purchases.__The following new definitions are
-------------------------
hereby added to Section 1.1 of the Credit Agreement, in the appropriate
respective locations in the alphabetical sequence:
"Preferred Stock Purchases. The purchase by the Company of shares
-------------------------
of 1998 Preferred Stock from the holders thereof, provided that (a) the
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total cumulative amount of the consideration (excluding consideration
consisting of common stock of the Company or rights to acquire such stock)
paid for all such purchases and for Subordinated Note Purchases, taken
together, in each case from after the Closing Date does not exceed, in the
aggregate, the sum of the Available Net Equity Issuance Proceeds, as
determined for each Specified Equity Issuance, on a cumulative basis, (b)
the shares of 1998 Preferred Stock so purchased are promptly cancelled by
the Company, (c) no Default or Event of Default exists and none would exist
after giving effect thereto, and (d) such purchases are in each case
permitted by the 1998 Preferred Stock Documents and Subordinated Debt
Documents."
"Securities Purchases. Collectively, Subordinated Note Purchases
--------------------
and Preferred Stock Purchases."
(S)1.4. Certain EBITDA Calculations.__The third paragraph of the
---------------------------
definition of EBITDA (as added by the First Amendment to the Credit Agreement)
is hereby amended by inserting the phrase "and also as utilized in the
determination of compliance with (S)11.5 and (S)11.6 hereof," immediately after
the phrase "(S)11.1.1 and (S)11.2.1 hereof," in the fourth line of such third
paragraph. Such third paragraph is further amended by inserting the words "and
related legal fees" after the word "liabilities" in the eighth line thereof,
replacing the word "certain" in such eighth line with the word "the", deleting
the phrase "class action" in the ninth line thereof, replacing the phrase "and
the related legal fees, net of and after giving effect to all applicable
insurance coverage" beginning in the ninth line thereof with the phrase ", its
officers, directors and certain of its security holders as referred to in the
last five paragraphs of Schedule 8.7", and by inserting the following phrase
------------
immediately after the word "payments" in the fourteenth line thereof: "(other
than any such cash payments made from Net Equity Issuance Proceeds)". The
following new text is hereby added to such third paragraph, at the end thereof:
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"Solely for the purpose of the calculation of EBITDA as utilized in the
determination of the Senior Leverage Ratio and the Interest Coverage Ratio,
and as utilized in the determination of compliance with (S)11.1.1 and
(S)11.2.1 hereof, and also as utilized in the determination of compliance
with (S)11.5 and (S)11.6 hereof, the determination of EBITDA for any
relevant fiscal period shall, without duplication, be made without regard
to (a) applicable restructuring charges (and onetime charges or costs
associated with the relevant restructuring giving rise to the restructuring
charges) relating to Italian operations, of not more than $1,000,000 in the
aggregate that may be incurred during the fiscal year ending January_31,
2000, (b) applicable noncash charges incurred during the fiscal year ending
January_31, 2000 and the fiscal year ending January_31, 2001 relating to
the writedown of inventory, of not more than $5,000,000 in the aggregate,
(c) applicable restructuring charges (and onetime charges or costs
associated with the relevant restructuring giving rise to the restructuring
charges) relating to U.S. Wholesale operations, that may be incurred during
the fiscal year ending January 31, 2000, provided that any amounts of such
-------------
applicable U.S. Wholesale restructuring charges to be so excluded under
this clause which consists of cash charges shall not exceed $1,750,000 in
the aggregate, and (d) the costs and expenses of the consultant/advisor
referred to in (S)9.26 hereof."
(S)1.5. Certain Interest Expense Calculations.__The definition of
-------------------------------------
Consolidated Total Interest Expense contained in Section 1.1 of the Credit
Agreement is hereby amended by adding the following new text at the end of such
definition:
"The calculation of Consolidated Total Interest Expense shall exclude the
"amendment fees" provided for in the Third Amendment to this Credit
Agreement."
(S)1.6. Revolving Credit Facility.__(a) Section 2.4 of the Credit
-------------------------
Agreement is hereby amended by adding the following new subsection 2.4.3 at the
end of Section 2.4:
"2.4.3. Required Reduction of Total Revolving Commitment.__In the
------------------------------------------------
event that, as of December 31, 1999, there shall not have occurred
Specified Equity Issuances generating a total of at least $37,500,000 of
Net Equity Issuance Proceeds (as determined on a cumulative, aggregate
basis, and, for this purpose only, disregarding transaction expenses that
would otherwise be deducted in computing Net Equity Issuance Proceeds),
then on such date the Total Revolving Commitment shall be automatically and
permanently reduced by the Pro Rata Reduction Percentage (as determined for
the Total Revolving Commitment) of the amount of $10,000,000, whereupon the
Revolving Commitments of the Lenders shall be reduced pro rata in
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accordance with their respective Revolving Commitment Percentages of the
applicable amount of such required reduction."
5
(b) Section 4.4 of the Credit Agreement is hereby amended by adding the
following new subsection 4.4.3 at the end of Section 4.4:
"4.4.3. Required Reduction of Total Revolving Multicurrency
---------------------------------------------------
Commitment.__In the event that, as of December 31, 1999, there shall not
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have occurred Specified Equity Issuances generating a total of at least
$37,500,000 of Net Equity Issuance Proceeds (as determined on a cumulative,
aggregate basis and, for this purpose only, disregarding transaction
expenses that would otherwise be deducted in computing Net Equity Issuance
Proceeds), then on such date the Total Revolving Multicurrency Commitment
shall be automatically and permanently reduced by the Pro Rata Reduction
Percentage (as determined for the Total Revolving Multicurrency Commitment)
of the amount of $10,000,000, whereupon the Revolving Multicurrency
Commitments of the Lenders shall be reduced pro rata in accordance with
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their respective Revolving Multicurrency Commitment Percentages of the
applicable amount of such required reduction."
(S)1.7. Investments in Securities Purchases.__Clause (y) of Section 10.3
-----------------------------------
of the Credit Agreement is hereby amended by substituting the phrase "Securities
Purchases" for the phrase "Subordinated Note Purchases" (which phrase was added
thereto by the First Amendment to the Credit Agreement).
(S)1.8. Distributions.__(a) Section 10.4 of the Credit Agreement is
-------------
hereby amended by deleting the word "and" from the end of clause (f) thereof and
adding the following new clause (h) immediately after clause (g) thereof, before
the period at the end of the first paragraph of Section 10.4:
", and (h) Preferred Stock Purchases by the Company (as provided in the
definition of such term)"
(b) The phrase "clauses (f) and (g)" appearing in the second paragraph of
Section 10.4 is hereby deleted and replaced by the phrase "clauses (f), (g) and
(h)" which shall be inserted in place of such deleted phrase.
(S)1.9. Regarding Preferred Stock.__Section 10.22 of the Credit Agreement
-------------------------
is hereby amended by deleting the word "The" from the beginning of the text of
Section 10.22 and inserting in its place the phrase "Except for Preferred Stock
Purchases made pursuant to the provisions of (S)10.4(h) hereof, the" at the
beginning of the text of Section 10.22. Section 14.1(j) of the Credit Agreement
is hereby amended by inserting the phrase "and other Securities Purchases
otherwise expressly permitted pursuant to the provisions" immediately before the
word "hereof" in line 7 of Section 14.1(j).
(S)1.10. Restriction on Investments.__Section 10.3(h) of the Credit
--------------------------
Agreement is hereby amended by substituting the figure "$3,500,000" for the
figure "$5,000,000" where such figure appears in the text added to Section
10.3(h) of the Credit Agreement by the First Amendment thereto.
6
(S)1.11. Cash Holding Limitation.__Section 11.4 of the Credit
-----------------------
Agreement (as added by the First Amendment thereto) is hereby amended by
deleting the phrase "$50,000,000" and inserting the phrase "the Applicable Cash
Holding Amount" in place of the deleted language. The following additional text
is hereby added at the end of Section 11.4:
"The Applicable Cash Holding Amount shall be determined as follows: (a) until
such time as the Company shall have fully resolved the outstanding residual
claim relating to the obligation to pay or otherwise fund any interest on
overdue interest accruing prior to the Reorganization relating to certain
preReorganization debt securities of EII Holdings (the "Resolution of the
InterestonInterest Claim"), the Applicable Cash Holding Amount shall be
$50,000,000; or (b) at all times from and after the time of the Resolution of
the InterestonInterest Claim, the Applicable Cash Holding Amount shall be
$40,000,000. The Company shall notify the Administrative Agent immediately in
writing, in reasonable detail, of the Resolution of the InterestonInterest
Claim and the amount and terms thereof, upon the occurrence thereof."
(S)1.12. Reporting Requirements.__Section 9.4 of the Credit Agreement
----------------------
is hereby amended by substituting a semicolon for the period at the end of
paragraph (l) thereof (as added by the First Amendment to the Credit Agreement)
and adding the following additional provisions to Section 9.4 after paragraph
(l) thereof:
"(m) as soon as practicable, but in any event not later than
thirty (30) days (or forty-five (45) days in the case of clause (i) below)
after the end of each month of each fiscal year of the Company (except for
months contained in any fiscal quarter immediately following a fiscal
quarter at the end of which the Leverage Ratio was less than 5.00 to 1.00)
the following, each in reasonable detail: (i) a consolidated cash flow
forecast for the following three (3) months, on a monthbymonth basis; (ii)
a breakdown of U.S. Wholesale sales by product line and distribution
channel for the month then ended; (iii) a summary aging report of accounts
receivable of the U.S. Wholesale Business; (iv) a progress report on the
workthrough of discontinued and obsolete inventory of the U.S. Wholesale
Business; and (v) a copy of the monthly internal management letter and
report, to include (without limitation) a discussion of the financial
results of the month then ended and a comparison to the Company's prior
forecast and plan with respect to such month then ended."
(S)1.13. Disposition of Assets.__Section 10.5.2(c)(v) of the Credit
---------------------
Agreement is hereby amended by deleting the phrase "$10,000,000" and inserting
in its place the phrase "the Applicable Retention Amount". The following new
text shall be added to Section 10.5.2(c)(v) immediately after the semicolon at
the end thereof:
7
"the Applicable Retention Amount referred to above shall be (I) $5,000,000
(exclusive of Net Asset Sale Proceeds from Asset Sales of the Canadian
molding business) plus the Net Asset Sale Proceeds from such Asset Sales of
----
the Canadian molding business (but such resulting sum shall not be greater
than a total of $10,000,000, in any event), at all times through the end of
the second of two consecutive fiscal quarters at the end of both of which
-------------
fiscal quarters the Leverage Ratio was less than 5.00 to 1.00, and (II) at
all times thereafter, $10,000,000;"
(S)1.14. Capital Expenditures.__Section 11.3 of the Credit Agreement
--------------------
is hereby amended by substituting the figure "$30,000,000" for the figure
"$35,000,000" in each location where such figure appears in Section 11.3, and by
adding the following additional text to Section 11.3 at the end thereof:
"Notwithstanding the foregoing, however, the Capital Expenditures of the
Borrowers and all NonExcluded Subsidiaries in the aggregate for any fiscal
year shall not in any event exceed $25,000,000 (with no increase in such
------------
maximum amount from the carryover of Unspent Amounts) unless and until
there shall have also occurred (on or prior to the end of such fiscal year)
the completion of two consecutive fiscal quarters (whether or not either or
both were contained in such fiscal year) at the end of both of which fiscal
-------------
quarters the Leverage Ratio was less than 5.00 to 1.00 (after which
completion, such $25,000,000 limitation shall no longer apply)."
(S)1.15. Certain Consultant Arrangements and Examinations. Section
------------------------------------------------
9.26 of the Credit Agreement is hereby amended by adding the following text at
the end thereof (after the text added thereto by the First Amendment to the
Credit Agreement):
"Upon the periodic request of any of the Agents made from time to
time, at reasonable intervals as determined by the Agents, the Company
shall cause (or permit) to be carried out such further examinations of
accounts receivable and inventory as shall be so requested, with the
examinations to be done by examiners chosen by the Agents. The Company
shall provide the examiners with access to the relevant information and
otherwise cooperate with such examinations, and shall pay the reasonable
costs and expenses of such examinations.
The Company shall keep the Agents informed on a timely basis and
in reasonable detail with respect to the status and results of the
implementation of the Company's proposed restructuring of its U.S.
Wholesale Business. Upon the request of any of the Agents (based upon such
information as is provided to the Agents pursuant to the foregoing status
reports and such other factors, events, circumstances, and data as they
reasonably deem relevant) made to the Company at any time during the
sixmonth period commencing on August_31, 1999, the Company shall be
required, on a prompt and expeditious basis (and in any event within thirty
(30) days after such request by any of the Agents), to select (subject
8
to approval by the Agents) and engage a consulting firm and/or other
appropriate advisor(s) to evaluate, and to make recommendations for
improving, the sales, marketing, and financial performance of the Company's
U.S. Wholesale Business. Such applicable selected consultant/advisor will
be retained by, and work directly with, the Company; and the Company shall
cause such applicable consultant/advisor (A) to be available to the Agents
for periodic status reports from time to time, (B) to keep the Agents
informed on a timely basis and in reasonable detail with respect to such
evaluation, and (C) to prepare a report summarizing the findings of such
evaluation and any relevant recommendations, with such report to be
completed and delivered to the Company, the Agents, and the Lenders within
ninety (90) days after the engagement of the consultant/advisor (and, in
any event, not later than one hundred twenty (120) days after such request
by any of the Agents is initially made to the Company). The Company shall
provide the consultant/advisor with access to the relevant information and
otherwise cooperate with such evaluation, and shall pay the reasonable
costs and expenses thereof."
(S)1.16. Regarding Acquisitions.__Section 10.5.1 of the Credit
----------------------
Agreement is hereby amended by adding the following text at the end of Section
10.5.1:
"Notwithstanding the foregoing, unless and until there shall have
previously occurred the completion of two consecutive fiscal quarters at
the end of both of which fiscal quarters the Leverage Ratio was less than
-------------
5.00 to 1.00, no acquisition otherwise permitted under either (S)10.5.1(c)
or (S)10.5.1(f) which involves any cash Investments or other monetary
purchase consideration (including for this purpose, without limitation,
cash purchase price payments, deferred cash purchase price obligations, any
applicable Indebtedness to be acquired or assumed from the business
proposed to be acquired, and any applicable Indebtedness of any Person to
be acquired as an entity (all of the foregoing several categories of
applicable Indebtedness being referred to as "Acquired Indebtedness"))
shall be permitted to be carried out, provided, however, the foregoing
--------
prohibition shall not apply if the Leverage Ratio at the most recent fiscal
quarter end date immediately preceding the proposed transaction would have
been less than 5.00 to 1.00, on a pro forma basis, had such proposed
---------
transaction been completed as of such fiscal quarter end date; and
provided, further, however, if the foregoing prohibition would otherwise
-------- ------- -------
apply to a proposed acquisition solely by reason of the fact that such
acquisition would involve Acquired Indebtedness, then (notwithstanding the
foregoing) such prohibition shall not apply to such acquisition so long as
the aggregate amount of Acquired Indebtedness with respect to all such
excluded acquisitions shall not exceed $2,000,000 in the aggregate at any
one time outstanding. Further, notwithstanding the provisions of (S)10.1
hereof, any and all Indebtedness (other than Acquired Indebtedness)
incurred or proposed to be incurred in connection with, or
9
for the purpose of, any acquisition effected under (S)10.5.1(c) or
(S)10.5.1(f) (whether such Indebtedness is incurred pursuant to (S)10.1(k),
(S)10.1(l), or otherwise) in circumstances where there shall not have
previously occurred the completion of two consecutive fiscal quarters at
the end of both of which fiscal quarters the Leverage Ratio was less than
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5.00 to 1.00, must be subordinated to the Obligations in a manner no less
favorable to the Lenders than the subordination provisions set forth in the
Subordinated Indenture, and in such case the terms and conditions of all
such Indebtedness shall be subject to the prior written approval of the
Agents with respect thereto; provided that the requirements of this
--------
sentence shall not apply in the case of an acquisition effected pursuant to
the first proviso clause of the immediately preceding sentence."
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(S)1.17. Certain Adjustments.__Notwithstanding any provisions of the
-------------------
First Amendment to the Credit Agreement with respect thereto, no EBITDA Credit
shall be available or applicable for any purposes under the Credit Agreement.
(S)1.18. Senior Leverage Ratio Definition.__The definition of Senior
--------------------------------
Leverage Ratio in Section 1.1 of the Credit Agreement is hereby amended by
inserting the following new phrase into clause (b) of such definition,
immediately before the period at the end of such definition:
"(or, if such date of determination is not a fiscal quarter, for the
Reference Period then most recently ended)"
(S)1.19. Senior Leverage Ratio Covenant in (S)11.1.1.__Sections
-------------------------------------------
11.1.1(c) and (d) of the Credit Agreement are hereby deleted and replaced by the
following Sections 11.1.1(c), (d), and (e):
"(c) As of February_1, 1999, and at all times thereafter through
April 30, 1999, the Borrowers will not permit the ratio of (i) Total Funded
Indebtedness of the Company and its NonExcluded Subsidiaries outstanding on
the date of determination minus Subordinated Debt outstanding on the date
of determination to (ii) EBITDA of the Company and its NonExcluded
Subsidiaries for the period of two (2) consecutive fiscal quarters ending
on January_31, 1999, treated as a single accounting period, multiplied by
-------------
two (2), to be greater than 2.95:1.00.
(d) As of May_1, 1999, and at all times thereafter through July_31,
1999, the Borrowers will not permit the ratio of (i) Total Funded
Indebtedness of the Company and its NonExcluded Subsidiaries outstanding on
the date of determination minus Subordinated Debt outstanding on the date
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of determination to (ii) EBITDA of the Company and its NonExcluded
Subsidiaries for the period of three (3) consecutive fiscal quarters ending
on April_30, 1999, treated as a single accounting period, multiplied by a
-------------
fraction whose numerator is four (4) and whose denominator is three (3), to
be greater than 2.85:1.00.
10
(e) As of August_1, 1999, and at all times thereafter through
October_31, 1999, the Borrowers will not permit the ratio of (i) Total
Funded Indebtedness of the Company and its NonExcluded Subsidiaries
outstanding on the date of determination minus Subordinated Debt
-----
outstanding on the date of determination to (ii) EBITDA of the Company and
its NonExcluded Subsidiaries for the period of four (4) consecutive fiscal
quarters ending on July_31, 1999, treated as a single accounting period, to
be greater than 2.85:1.00."
(S)1.20. Senior Leverage Ratio Covenant in (S)11.1.2.__The text of
Section 11.1.2 of the Credit Agreement is hereby amended to read as follows:
"The Borrowers will not permit the Senior Leverage Ratio as determined on
any date of determination during any period of time described in the table
below to be greater than the ratio set forth below in such table opposite
the period of time containing such date of determination:
Time Period in Which Date of Maximum Ratio
Determination Occurs Permitted
-------------------- ---------
November_1, 1999 January 31, 2000 2.60 to 1.00
February_1, 2000 and thereafter 2.50 to 1.00"
(S)1.21. Interest Coverage Ratio Covenant in (S)11.2.1.__Section
---------------------------------------------
11.2.1(c) of the Credit Agreement is hereby amended by deleting the phrase
"1.55:1.00" and replacing it with "1.20:1.00". Section 11.2.1(d) of the Credit
Agreement is hereby amended by deleting the phrase "1.55:1.00" and replacing it
with "1.20:1.00". The following new paragraph (e) is hereby added to Section
11.2.1 immediately after paragraph (d) thereof:
"(e) For purposes of this (S)11.2.1, computations of
Consolidated Total Interest Expense shall be made as provided in the
definition of such term and in the applicable provisions of the definition
of Interest Coverage Ratio relating to the computation of Consolidated
Total Interest Expense hereunder."
(S)1.22. Interest Coverage Ratio Covenant in (S)11.2.2.__(a) The
---------------------------------------------
definition of Interest Coverage Ratio in Section 1.1 of the Credit Agreement is
hereby amended by inserting the following phrase at the end of clause (ii) of
the final sentence of such definition, immediately before the period at the end
of such definition:
"(other than Distributions consisting of Preferred Stock Purchases made
pursuant to the provisions of (S)10.4(h) hereof)"
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(b) Section 11.2.2 of the Credit Agreement is hereby amended by deleting
the table from Section 11.2.2 and replacing it with the following amended table:
"Period Minimum Ratio
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October 31, 1999 January 30, 2000 1.10:1.00
January 31, 2000 April 29, 2000 1.25:1.00
April 30, 2000 July 30, 2000 1.35:1.00
July 31, 2000 October 30, 2000 1.40:1.00
October 31, 2000 January 30, 2001 1.50:1.00
January 31, 2001 April 29, 2001 1.60:1.00
April 30, 2001 and thereafter 2.50:1.00"
(S)1.23. Consolidated EBITDA.__Section 11 of the Credit Agreement is
-------------------
hereby amended by adding the following new Section 11.5 after Section 11.4
thereof (as added by the First Amendment to the Credit Agreement):
"11.5. Consolidated YeartoDate Cumulative EBITDA.__As of any fiscal
quarter end date set forth in the table below, EBITDA determined on a
consolidated, cumulative basis for the portion of the then applicable
fiscal year (containing such fiscal quarter) then elapsed (from the
beginning of such fiscal year through such fiscal quarter end date),
treated as a single accounting period, shall not be less than the figure
set forth in the table below opposite such fiscal quarter end date:
Minimum Cumulative
Fiscal Quarter End Date Consolidated EBITDA
-------------------------- -------------------
April 30, 1999 $ 12,000,000
July 31, 1999 $ 26,000,000
October 31, 1999 $ 47,000,000
January 31, 2000 $ 70,000,000
April 30, 2000 $ 15,000,000
July 31, 2000 $ 12,000,000
October 31, 2000 $ 57,000,000
January 31, 2001 $ 83,000,000"
(S)1.24. U.S. Wholesale Business EBITDA.__(a) The following new definitions
------------------------------
are hereby added to Section 1.1 of the Credit Agreement, in the appropriate
respective locations in the alphabetical sequence:
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"U.S. Wholesale Business. The Company's U.S. Wholesale business as
-----------------------
identified in the books and records of the Company consistent with past
accounting practices and policies."
"U.S. Wholesale Business EBITDA. For any fiscal period, EBITDA as
------------------------------
determined for this purpose for such period with respect only to the Company's
U.S. Wholesale Business, taken separately without regard to (and excluding) any
other portion of the consolidated business of the Company and its NonExcluded
Subsidiaries, calculated in accordance with generally accepted accounting
principles and in accordance with the Company's past accounting policies and
practices for making calculations of the U.S. Wholesale Business EBITDA (as such
existing accounting policies and practices for making such calculations are in
effect on the effective date of the Third Amendment to this Credit Agreement and
as previously described to the Agents by the Company prior to such effective
date)."
(b) Section 11 of the Credit Agreement is hereby amended by adding the
following new Section 11.6 after Section 11.5 thereof (as added by this
Amendment):
"11.6. U.S. Wholesale Business YeartoDate Cumulative EBITDA.__As of any
----------------------------------------------------
fiscal quarter end date set forth in the table below, the U.S. Wholesale
Business EBITDA determined on a cumulative basis for the portion of the then
applicable fiscal year (containing such fiscal quarter) then elapsed (from the
beginning of such fiscal year through such fiscal quarter end date), treated as
a single accounting period, shall not be less than the figure set forth in the
table below opposite such fiscal quarter end date (with any applicable figures
set forth in parentheses in such table representing negative numbers):
Minimum Cumulative U.S.
Fiscal Quarter End Date Wholesale Business EBITDA
-------------------------- -------------------------
April 30, 1999 ($1,780,000)
July 31, 1999 ($5,200,000)
October 31, 1999 ($4,150,000)
January 31, 2000 ($3,940,000)
April 30, 2000 ($330,000)
July 31, 2000 ($2,400,000)
October 31, 2000 $130,000
January 31, 2001 $1,765,000"
(S)1.25. Certain Definitions.__(a) The definition of Pro Rata
-------------------
Reduction Percentage in Section 1.1 of the Credit Agreement is hereby amended by
13
deleting the phrase "in (S)3.3.3", from the first line thereof and inserting in
its place the phrase "in this Credit Agreement" in such first line of such
definition.
(b) The definition of Total Revolving Multicurrency Commitment in Section
1.1 of the Credit Agreement is hereby amended by deleting the phrase "to
(S)4.4.3" from the third line thereof and inserting in its place the phrase "to
(S)4.4.2" in such third line of such definition.
(S)1.26. Litigation Schedule.__The text of Schedule_8.7 to the Credit
------------------- ------------
Agreement is hereby amended by adding thereto the additional paragraphs of text
set forth on Schedule_8.7A attached to this Amendment.
-------------
(S)1.27. Change in Circumstances.__(a) Section 8.4.2 of the Credit
-----------------------
Agreement is hereby amended by deleting the second sentence from such Section
8.4.2.
(b) Section 8.5 of the Credit Agreement is hereby amended by
adding the following phrase at the end of the first sentence immediately before
the period:
"and except for such matters as have in each case been disclosed in writing by
the Company to the Lenders and the Agents prior to the effective date of the
Third Amendment to this Credit Agreement"
(S)2. Certain Amendments Relating to Proceeds of Equity
-------------------------------------------------
Issuances.__Subject to the satisfaction of the applicable conditions precedent
set forth in Section 3 hereof, the Credit Agreement is hereby further amended as
follows:
(S)2.1. Certain Definitions.__(a) The definition of Required Prepayment
------- -----------
Amount of Net Equity Issuance Proceeds is hereby amended to read as follows:
"Required Prepayment Amount of Net Equity Issuance Proceeds. With
----------------------------------------------------------
respect to Specified Equity Issuances, means (a) as applied to the first
$75,000,000 of the Net Equity Issuance Proceeds of such Specified Equity
Issuances, a portion thereof equal to the lesser of (i) 40% of such first
$75,000,000 of Net Equity Issuance Proceeds of Specified Equity Issuances
and (ii) the amount (if any) of such first $75,000,000 of Net Equity
Issuance Proceeds of Specified Equity Issuances remaining after reducing
such first $75,000,000 of Net Equity Issuance Proceeds by the applicable
amount of such first $75,000,000 of Net Equity Issuance Proceeds actually
used within ninety (90) days following the time of receipt thereof to
resolve Specified Litigation Obligations; provided, however, that the
-------- -------
temporary reservation by the Company of amounts of such Net Equity Issuance
Proceeds for application to the resolution of Specified Litigation
Obligations during such ninety (90) day period following receipt thereof
shall be permissible for purposes of this clause (ii) but only for so long
--------
as the Company reasonably believes that such a
14
resolution actually will occur in such period and only to the extent of
the amounts thereof the Company reasonably believes will actually be so
utilized for such resolution in such period, it being understood that, in
any event, any such amounts so reserved but not actually so utilized
during such period or no longer eligible to be so reserved shall then
(after such period, or, if earlier, such earlier time as such amounts are
not eligible to be so reserved) be deemed to constitute Net Equity
Issuance Proceeds of Specified Equity Issuances remaining on hand under
this clause (ii); and (b) as applied to the Net Equity Issuance Proceeds
of Specified Equity Issuances in excess of the first $75,000,000 thereof,
50% thereof."
(b) The following new definition is hereby added to Section 1.1 of the
Credit Agreement, in the appropriate location in the alphabetical sequence:
"Specified Litigation Obligations. See the definition of such term as it
--------------------------------
appears in the definition of EBITDA contained herein."
(c) The definition of Available Net Equity Issuance Proceeds is hereby
amended to read as follows:
"Available Net Equity Issuance Proceeds. With respect to Specified Equity
--------------------------------------
Issuances, means (a) as applied to the first $75,000,000 of Net Equity
Issuance Proceeds of Specified Equity Issuances, the portion (if any)
thereof which neither constitutes Required Prepayment Amounts of Net
Equity Issuance Proceeds under clause (a) of the definition of such term
nor is used to resolve Specified Litigation Obligations; and (b) as
applied to the Net Equity Issuance Proceeds of Specified Equity Issuances
in excess of the first $75,000,000 thereof, 50% thereof."
(d) The definition of Net Equity Issuance Proceeds is hereby amended by
adding the following phrase at the end of such definition, immediately before
the period:
"; provided that insurance proceeds which represent a reimbursement to the
--------
Company of amounts previously paid by the Company in respect of Specified
Litigation Obligations from Net Equity Issuance Proceeds shall be deemed
to be Net Equity Issuance Proceeds for all purposes"
(e) The definition of Specified Equity Issuance is hereby amended to read as
follows:
"Specified Equity Issuance. Each Equity Issuance generating positive Net
-------------------------
Equity Issuance Proceeds (in a single transaction or in a series of
related transactions), other than any such Equity Issuance consisting of
the exercise of stock options granted to employees and directors or the
exercise of warrants issued prior to January_31, 1999
15
generating (in the case of any such Equity Issuance) Net Equity Issuance
Proceeds not exceeding $2,500,000 (as determined with respect to a single
transaction or a series of related transactions)."
(S)2.2. Related Reporting Provisions.__Section 3.3.3(e) of the Credit
----------------------------
Agreement is hereby amended by adding the following new text at the end thereof:
"Concurrently with each Specified Equity Issuance, the Company shall
deliver to the Administrative Agent written notice thereof showing the
calculation, in reasonable detail, of the Net Equity Issuance Proceeds, the
Available Net Equity Issuance Proceeds (and the proposed and actual
utilization thereof), and the Required Prepayment Amount of Net Equity
Issuance Proceeds, in each case after giving effect to such Specified
Equity Issuance, all to be certified by the Company in such notice."
(S)3. Conditions to Effectiveness.__This Amendment shall be deemed to be,
---------------------------
and shall become, effective as of the Effective Date referred to above, in the
manner, and to the extent, provided below, subject to the satisfaction of the
following applicable conditions precedent on or prior to such date:
(a) The effectiveness of all provisions of this Amendment except for
----------
Section 2 hereof (all such provisions, excluding Section 2 hereof, being
referred to as the "Majority Lender Approval Provisions") shall be subject to
the receipt, on or prior to the Effective Date, by the Administrative Agent of
(i) one or more counterparts of this Amendment duly executed and delivered by
the Company, Samsonite Europe, and the Majority Lenders, and (ii) the applicable
amendment fees provided for in paragraph (c) below, for the respective accounts
of the applicable Lenders signatory hereto entitled thereto, in immediately
available funds;
(b) The effectiveness of Section 2 hereof (the "Special Approval
Provisions") shall be subject to the receipt, on or prior to the Effective Date,
by the Administrative Agent of (i) one or more counterparts of this Amendment
duly executed by the Company, Samsonite Europe, the Majority Lenders, the
Majority Domestic Term Loan Lenders, the Majority Foreign Term Loan Lenders, and
the Majority Revolving Lenders, and (ii) the applicable amendment fees provided
for in paragraph (c) below, for the respective accounts of the applicable
Lenders signatory hereto entitled thereto, in immediately available funds;
(c) The Company shall have paid (and the Company hereby covenants and
agrees to pay, subject to and simultaneously with the effectiveness of the
applicable provisions of this Amendment) to the Administrative Agent on the
Effective Date, for the respective accounts of those Lenders that, as of the
Effective Date, have duly executed and delivered counterparts of this Amendment
to the Administrative Agent, an amendment fee (the "Amendment Fee") in
immediately available funds, which shall be equal to the Applicable Fee
16
Percentage (as defined below) of the sum of (i) such Lender's Domestic Term Loan
Commitment Percentage of the then outstanding principal amount of the Domestic
Term Loan and such Lender's Foreign Term Loan Commitment Percentage of the then
outstanding principal amount (expressed as a Dollar Equivalent amount) of the
Foreign Term Loan, in each case if applicable, and (ii) the aggregate amount of
such Lender's Commitments, if applicable. For purposes of determining the
Amendment Fee, the Applicable Fee Percentage shall be (x) 25 basis points
(0.25%) in the event that, as of the Effective Date, the Administrative Agent
shall have received counterparts of this Amendment duly executed and delivered
by the Borrowers and the Majority Lenders, as contemplated by clause (i) of
paragraph (a) of this Section 3 (but not by all those additional Lenders
required by clause (i) of paragraph (b) of this Section 3), or, alternatively,
(y) 35 basis points (0.35%) in the event that, as of the Effective Date, the
Administrative Agent shall have received counterparts of this Amendment duly
executed and delivered by the Borrowers and all those Lenders required by clause
(i) of paragraph (b) of this Section 3.
(S)4. Representations and Warranties.__Each of the Company and
------------------------------
Samsonite Europe hereby repeats, on and as of the date of the execution and
delivery hereof and the Effective Date, each of the representations and
warranties made by it in Section 8 of the Credit Agreement after giving effect
to this Amendment (except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and the other Loan Documents,
changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date), provided,
--------
that all references therein to the Credit Agreement shall refer to such Credit
Agreement as amended hereby. In addition, each of the Company and Samsonite
Europe hereby represents and warrants that the execution and delivery by such
Borrower of this Amendment and the performance by such Borrower of all of its
respective agreements and obligations under this Amendment and the Credit
Agreement as amended hereby are within the corporate power and authority of such
Borrower, and have been duly authorized by all necessary corporate action on the
part of such Borrower, and each further represents and warrants that the
execution and delivery by such Borrower, of this Amendment and the performance
by it of the transactions contemplated hereby (including, without limitation,
any Securities Purchases) will not contravene any term or condition set forth in
any agreement or instrument to which it is a party or by which it is bound,
including, in the case of the Company, but not limited to, the Subordinated Debt
Documents and the 1998 Preferred Stock Documents.
(S)5. Ratification, Etc.__Except as expressly provided for herein, the
------------ ---
Credit Agreement and all documents, instruments and agreements related thereto,
including, but not limited to, the Security Documents, are hereby ratified and
confirmed in all respects and shall continue in full force and effect. The
Credit Agreement and this Amendment shall be read and construed as a single
agreement. This Amendment shall constitute one of the Loan Documents,
17
and the obligations of the Borrowers under this Amendment shall constitute
Obligations for all purposes of the Loan Documents. All references in the
Credit Agreement, the Loan Documents or any related agreement or instrument to
the Credit Agreement shall hereafter refer to the Credit Agreement as amended
hereby.
(S)6. No Waiver.__Nothing contained herein shall constitute a waiver
---------
of, impair or otherwise adversely affect any Obligations, any other obligation
of the Company or Samsonite Europe or any rights of the Agents or the Lenders
consequent thereon.
(S)7. Counterparts.__This Amendment may be executed in one or more
------------
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
(S)8. Governing Law.__THIS AMENDMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
APPLICABLE TO TRANSACTIONS TO BE PERFORMED WHOLLY WITHIN SUCH STATE (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
IN WITNESS WHEREOF, the parties hereto have executed this Amendment under
seal by their respective officers thereunto duly authorized.
[Signature Pages Follow]
18
Signature Pages for Borrowers
--------- ----- --- ---------
Each of the undersigned Borrowers hereby consents and agrees to all of the
provisions of the foregoing Amendment:
The Company:SAMSONITE CORPORATION
-----------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ .......................
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇..........................
Title: Chief Financial Officer..................
Samsonite Europe:SAMSONITE EUROPE N.V.
----------------
By: /s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇...........................
Name: ▇▇▇ ▇▇▇ ▇▇▇▇▇.............................
Title: Managing Director........................
19
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇......................
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇........................
Title: Senior Vice President...................
20
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇......................
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇........................
Title: Vice President.........................
21
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
CIBC INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.........................
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇...........................
Title: Executive Director......................
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp., AS AGENT
22
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
GENERALE BANK N.V.
By: /s/ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇.....
Name: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.....
Title: Senior Vice President Senior Vice President
By: ........................................
Name:.......................................
Title:......................................
23
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇..................
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇....................
Title: Vice President.......................
24
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇.......................
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇.........................
Title: Senior Risk Manager..................
25
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
NATIONAL BANK OF CANADA
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇......................
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.......................
Title: Vice President........................
26
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
NORWEST BANK COLORADO,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇......................
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇........................
Title: Vice President........................
27
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
SENIOR DEBT PORTFOLIO
By:
Boston Management and Research,
as Investment Advisor
By: .......................................
Name: .....................................
Title: ....................................
28
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
OXFORD STRATEGIC INCOME FUND
By:
▇▇▇▇▇ ▇▇▇▇▇ Management, as
Investment Advisor
By: .......................................
Name: .....................................
Title: ....................................
29
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CFA................
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CFA..................
Title: Authorized Signatory.................
30
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
SENIOR HIGH INCOME PORTFOLIO,
INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CFA................
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CFA..................
Title: Authorized Signatory.................
31
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
ML CLO XX PILGRIM AMERICA
(CAYMAN) LTD.
By:
Pilgrim Investments, Inc.,
its investment manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇...................
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.....................
Title: Vice President......................
32
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
CYPRESSTREE INVESTMENT FUND, LLC
By:
CypressTree Investment
Management Company, Inc.,
its Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇...................
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.....................
Title: Managing Director...................
33
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
CYPRESSTREE INSTITUTIONAL
FUND, LLC
By:
CypressTree Investment
Management Company, Inc.,
its Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇...................
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.....................
Title: Managing Director...................
34
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
KZH CYPRESSTREE-1 LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇...................
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.....................
Title: Authorized Agent....................
35
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
KZH ING-2 LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇..................
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇....................
Title: Authorized Agent...................
36
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC
By:
ING Capital Advisors, Inc.,
as Investment Advisor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇......................
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇........................
Title: Senior Vice President................
37
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
CYPRESSTREE INVESTMENT
PARTNERS II, LTD.
By: CypressTree Investment Management
Company, Inc.,
as Portfolio Manager
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇....................
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.....................
Title: Managing Director...................
38
Signature Pages for Lenders
---------------------------
The undersigned Lender hereby consents and agrees to all of the provisions
of the foregoing Amendment:
ML CBO IV (CAYMAN) LTD.
By:
Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ ▇▇▇▇▇ Bondero, CFA, CPA.............
Name: ▇▇▇▇▇ Bondero, CFA, CPA...............
Title: President, Highland Capital
Management L.P.