EXHIBIT 10.59
EXECUTION
---------
CALMAR INC.
THIRD AMENDMENT
TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated as of
January 20, 1998, and entered into by and among Calmar Inc., a Delaware
corporation ("COMPANY"), and the financial institutions listed on the signature
pages hereof ("LENDERS"), and is made with reference to that certain Credit
Agreement dated as of August 18, 1995, as amended to the date hereof (as so
amended, the "CREDIT AGREEMENT"), by and among Company, Lenders, Xxxxxxx, Xxxxx
& Co., as syndication agent, and Credit Agricole Indosuez, as administrative
agent (in such capacity, "ADMINISTRATIVE AGENT"), documentation and collateral
agent. Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit Agreement in order
to increase the amount of the AXELs Series A by $5,000,000:
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1.
AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS.
------------------------------------
A. Subsection 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "AXEL Series A Notes" set forth therein in its entirety and
substituting therefor the following:
"AXEL SERIES A NOTES" means (i) the promissory notes of Company issued
pursuant to subsection 2.1E(i)(a) on the Closing Date, (ii) the promissory
note of Company issued to Xxxxxxx Sachs Credit Partners L.P. on the Third
Amendment Effective Date to evidence the additional AXELs Series A made by
Xxxxxxx Xxxxx Credit Partners L.P. on the Third Amendment Effective Date,
and (iii) any promissory notes issued by Company pursuant to the last
sentence of subsection 10.1B(i) in connection with assignments of the AXEL
Series A Commitments or AXELs Series A of any Lenders, in each case
substantially in the form of Exhibit IV-A annexed hereto, as they may be
------------
amended, supplemented or otherwise modified from time to time.
B. Subsection 1.1 of the Credit Agreement is hereby further amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"THIRD AMENDMENT" means that certain Third Amendment to Credit
Agreement dated as of January __, 1998 by and among Company and Lenders.
"THIRD AMENDMENT EFFECTIVE DATE" has the meaning assigned to that term
in the Third Amendment.
1.2 AMENDMENTS TO SECTION 2: AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.
-------------------------------------------------------------------
A. Subsection 2.1A(i) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting therefor the following:
"(i) AXELs Series A. Each Lender having an AXEL Series A Commitment
--------------
as of the Refinancing Date, as set forth on Schedule 2.1 annexed hereto as
------------
of the Refinancing Date, has loaned to Company on the Refinancing Date an
amount equal to its Pro Rata Share, as of the Refinancing Date, of the
aggregate $60,000,000 amount of the AXEL Series A Commitments as in effect
on the Refinancing Date, the proceeds of which AXELs Series A have been
used for the purposes identified in subsection 2.5A. In addition, Xxxxxxx
Sachs Credit Partners L.P. hereby agrees to lend to Company on the Third
Amendment Effective Date, as additional AXELs Series A, an amount equal to
$5,000,000, the proceeds of which additional AXELs Series A shall be used
for the purposes identified in subsection 2.5A. The amount of each
Lender's AXELs Series A as of the Third Amendment Effective Date, and each
Lender's Pro Rata Share with respect to the AXELs Series A (in each case
after giving effect to the $5,000,000 of additional AXELs Series A to be
made on the Third Amendment Effective Date), is set forth opposite its name
on Schedule 2.1 annexed hereto as in effect on the Third Amendment
------------
Effective Date (which Schedule 2.1 also reflects the AXELs Series B and the
------------
Revolving Loan Commitments of Lenders, and the corresponding Pro Rata
Shares of Lenders with respect thereto, as of the Third Amendment Effective
Date). Company has made one borrowing in the amount of $60,000,000 under
the AXEL Series A Commitments on the Refinancing Date, and Company may make
only one additional borrowing of AXELs Series A in the amount of $5,000,000
on the Third Amendment Effective Date. Amounts borrowed under this
subsection 2.1A(i) and subsequently repaid or prepaid may not be
reborrowed."
B. Subsection 2.4A(i) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting therefor the following:
"(i) Scheduled Payments of AXELs Series A. Company shall make
------------------------------------
principal payments on the AXELs Series A in installments on the dates and
in the amounts set forth below (it being understood that the following
table gives effect to any principal payments in respect of the AXELs Series
A prior to the Third Amendment Effective Date):
2
SCHEDULED
REPAYMENT OF
DATE AXELS SERIES A
--------------------------------------
March 15, 1998 $ 162,787.72
June 15, 1998 $ 162,787.72
September 15, 1998 $ 162,787.72
December 15, 1998 $ 162,787.72
March 15, 1999 $2,591,037.94
June 15, 1999 $2,591,037.94
September 15, 1999 $2,591,037.94
December 15, 1999 $2,591,037.94
March 15, 2000 $3,133,663.68
June 15, 2000 $3,133,663.68
September 15, 2000 $3,133,663.68
December 15, 2000 $3,133,663.68
March 15, 2001 $3,947,602.30
June 15, 2001 $3,947,602.30
September 15, 2001 $3,947,602.30
December 15, 2001 $3,947,602.30
March 15, 2002 $4,490,228.05
June 15, 2002 $4,490,228.05
September 15, 2002 $4,490,228.05
December 15, 2002 $4,490,228.05
March 15, 2003 $2,116,240.41
June 15, 2003 $2,116,240.41
September 15, 2003 $2,116,240.42
; provided that the scheduled installments of principal of the AXELs Series
--------
A set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the AXELs Series A in accordance with subsection
2.4B(iv); and provided, further that the AXELs Series A and all other
-------- -------
amounts owed hereunder with respect to the AXELs Series A shall be paid in
full no later than September 15,
3
2003, and the final installment payable by Company in respect of the AXELs
Series A on such date shall be in an amount, if such amount is different
from that specified above, sufficient to repay all amounts owing by Company
under this Agreement with respect to the AXELs Series A."
1.3 SUBSTITUTION OF SCHEDULE.
------------------------
(i) Schedule 2.1 to the Credit Agreement is hereby amended by deleting it
------------
in its entirety and substituting therefor a new Schedule 2.1 in the form of
------------
Annex A to this Amendment.
-------
(ii) Schedule 5.14 to the Credit Agreement is hereby amended by deleting it
-------------
in its entirety and substituting therefor a new Schedule 5.14 in the form of
-------------
Annex B to this Amendment.
-------
1.4 NEW LENDER.
----------
Xxxxxxx Xxxxx Credit Partners L.P. is hereby added as a Lender to the
Credit Agreement.
SECTION 2.
CONDITIONS TO EFFECTIVENESS
Notwithstanding anything to the contrary herein, Section 1 of this
Amendment shall become effective only upon the satisfaction of all of the
following conditions precedent (the date of satisfaction of such conditions
being referred to herein as the "THIRD AMENDMENT EFFECTIVE DATE"):
A. On or before the Third Amendment Effective Date, Company shall deliver
to Lenders (or to Administrative Agent for Lenders with sufficient originally
executed copies, where appropriate, for each Lender and its counsel) the
following, each, unless otherwise noted, dated the Third Amendment Effective
Date:
(1) Certified copies of any amendments made to its Certificate of
Incorporation on or after October 25, 1996 (the "PRIOR DELIVERY DATE"),
certified as of the Third Amendment Effective Date by its corporate
secretary or an assistant secretary as being the only amendments thereto
since the Prior Delivery Date (or, if there have been no such amendments
since the Prior Delivery Date, a certificate of its corporate secretary or
an assistant secretary to that effect), together with a good standing
certificate from the Secretary of State of the State of Delaware, dated a
recent date prior to the Third Amendment Effective Date;
(2) Copies of any amendments made to its Bylaws on or after the Prior
Delivery Date, certified as of the Third Amendment Effective Date by its
corporate secretary or an assistant secretary as being the only amendments
thereto since the Prior Delivery Date (or, if there have been no such
amendments since the Prior
4
Delivery Date, a certificate of its corporate secretary or an assistant
secretary to that effect);
(3) Resolutions of its Board of Directors approving and authorizing
the execution and delivery of this Amendment, the performance of the
Amendment and the Amended Agreement (as defined below), and the issuance
and payment of the Additional AXEL Series A Note (as defined below),
certified as of the Third Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment;
(4) Signature and incumbency certificates of its officers executing
this Amendment and the Additional AXEL Series A Note;
(5) Executed copies of this Amendment; and
(6) An executed AXEL Series A Note, payable to Xxxxxxx Sachs Credit
Partners L.P. in the principal amount of $5,000,000 (the "ADDITIONAL AXEL
SERIES A NOTE").
B. OPINION OF COMPANY'S COUNSEL. Lenders and their respective counsel
shall have received originally executed copies of one or more favorable written
opinions of Xxxxxxx & XxXxxxxx, counsel for Company, in form and substance
reasonably satisfactory to Xxxxxxx Sachs Credit Partners L.P. and its counsel
and to Administrative Agent, dated as of the Third Amendment Effective Date and
setting forth substantially the matters in the opinions designated in Exhibit I
---------
annexed hereto and as to such other matters as Xxxxxxx Xxxxx Credit Partners
L.P. and Administrative Agent acting on behalf of Lenders may reasonably
request.
C. On or before the Third Amendment Effective Date, all corporate and
other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
SECTION 3.
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, Company represents and warrants
to each Lender that the following statements are true, correct and complete:
A. CORPORATE POWER AND AUTHORITY. Company has all requisite corporate
power and authority to enter into this Amendment, to carry out the transactions
contemplated by,
5
and perform its obligations under, the Credit Agreement as amended by this
Amendment (as so amended, the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Company.
C. NO CONFLICT. The execution and delivery by Company of this Amendment
and the performance by Company of the Amended Agreement do not and will not (i)
violate any provision of any law or any governmental rule or regulation
applicable to Company or any of its Subsidiaries, the Certificate or Articles of
Incorporation or Bylaws of Company or any of its Subsidiaries or any order,
judgment or decree of any court or other agency or government binding on Company
or any of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company or any of its Subsidiaries (other than Liens created under any
of the Loan Documents in favor of Collateral Agent on behalf of Lenders), or
(iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of Company or any of its Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by Company of this
Amendment and the performance by Company of the Amended Agreement do not and
will not require any registration with, consent or approval of or notice to, or
other action to, with or by, any federal, state or other governmental authority
or regulatory body.
E. BINDING OBLIGATION. This Amendment and the Amended Agreement have
been duly executed and delivered by Company and are the legally valid and
binding obligations of Company enforceable against Company in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT AGREEMENT.
After giving full effect to this Amendment and any actions taken pursuant
hereto, the representations and warranties contained in Section 5 of the Credit
Agreement are and will be true, correct and complete in all material respects on
and as of the Third Amendment Effective Date to the same extent as though made
on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
6
SECTION 4.
MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the Third Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words or like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of Agent
or any Lender under, the Credit Agreement or any of the other Loan
Documents.
B. The parties hereto agree and acknowledge that the additional borrowing
under the AXEL Series A on the Third Amendment Effective Date is included in (i)
the definition of "Obligations" under the Credit Agreement and (ii) the
definition of "Secured Obligations" under each of the Collateral Documents, and
as such is secured by the Collateral Documents.
C. FEES AND EXPENSES. Company acknowledges that all costs, fees and
expenses as described in subsection 10.2 of the Credit Agreement incurred by
Agents and their respective counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of
Company.
D. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
E. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGA TIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTIONS 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
F. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterpart and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts
7
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Amendment (other than the provisions of Section 1 hereof, the
effectiveness of which is governed by Section 2 hereof) shall become effective
upon the execution of a counterpart hereof by Company and Lenders and receipt by
Company and Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
CALMAR INC.
By: /s/ X. X. Xxxxxxx
--------------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ,
as a Lender and as Administrative Agent,
Collateral Agent and Documentation Agent
By: /s/ Xxxxxxxxx Xxxxxxxxx
--------------------------------------------
Name: XXXXXXXXX XXXXXXXXX
Title: VICE PRESIDENT
By: /s/ Xxxxxxx Xxxxx
--------------------------------------------
Name: XXXXXXX XXXXX
Title: CHIEF CREDIT OFFICER
Notice Address:
Credit Agricole Indosuez
New York Branch
1211 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxx
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO,
A Unit of The Chase Manhattan Bank,
as a Lender
By:
--------------------------------------------
Name:
Title:
S-1
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO,
A Unit of The Chase Manhattan Bank,
as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Name: XXXXX X. XXXXXXXX
Title: MANAGING DIRECTOR
INDOSUEZ CAPITAL FUNDING II,
LIMITED, as a Lender
BY: INDOSUEZ CAPITAL LUXEMBOURG,
as Collateral Manager
By: /s/ Xxxxxxxxx Xxxxxxxxx
-------------------------------------
Name: XXXXXXXXX XXXXXXXXX
Title: AUTHORIZED SIGNATORY
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, as a Lender
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name: XXXX X. XXXXXXX
Title: MANAGING DIRECTOR
MASS MUTUAL CORPORATE VALUE
PARTNERS LIMITED, as a Lender
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name: XXXX X. XXXXXXX
Title: MANAGING DIRECTOR
S-2
XXXXXXX XXXXX PRIME RATE
PORTFOLIO,
as a Lender
BY: XXXXXXX XXXXX ASSET
MANAGEMENT, L.P., as Investment
Advisor
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: XXXXXXX XXXXXXXX
Title: AUTHORIZED SIGNATORY
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC., AS A LENDER
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Name: XXXXXXX XXXXXXXX
Title: AUTHORIZED SIGNATORY
PILGRIM AMERICA PRIME RATE TRUST,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Name: XXXXXX X. XXXXXX
Title: SENIOR VICE PRESIDENT
PRIME INCOME TRUST,
as a Lender
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: XXXXXX XXXXXXX
Title: VICE PRESIDENT
S-3
MLCBO IV (CAYMAN) LTD.
as a Lender
BY: PROTECTIVE ASSET MANAGEMENT
COMPANY
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx CFA
---------------------------------------
Name: XXXXX XXXXXXX CFA
Title: PRESIDENT
PROTECTIVE ASSET MANAGEMENT
COMPANY
SENIOR DEBT PORTFOLIO,
as a Lender
BY: BOSTON MANAGEMENT AND RESEARCH,
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------
Name: XXXXX X. PAGE
Title: VICE PRESIDENT
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: SENIOR VICE PRESIDENT & DIRECTOR
XXXXXXX XXXXX CREDIT PARTNERS L.P.
as a Lender
By: /s/
--------------------------------------------
Name:
Title: AUTHORIZED SIGNATORY
S-4
ANNEX A
SCHEDULE 2.1
------------
PRO RATA SHARE OF
NAME OF LENDER AXELS SERIES A AXELS SERIES A
-------------------------------- -------------- ------------------
Octagon Credit Investors $ 8,378,571.25 13.16%
Indosuez Capital Funding II,
Limited $ 4,747,857.27 7.46%
Massachusetts Mutual Life
Insurance Company $ 3,909,609.00 6.14%
Mass Mutual Corporate Value
Partners Limited $ 1,955,391.00 3.07%
Xxxxxxx Xxxxx Prime Rate
Portfolio $ 5,306,429.04 8.34%
Xxxxxxx Xxxxx Senior Floating
Rate Fund $10,333,570.87 16.23%
Pilgrim America Prime Rate
Trust $ 2,792,857.29 4.39%
Prime Income Trust $ 5,865,000.00 9.21%
MLCBO IV (Cayman) Ltd.
(Protective Life Insurance
Company) $ 2,513,571.55 3.95%
Senior Debt Portfolio $ 5,865,000.00 9.21%
Xxx Xxxxxx American Capital
Prime Rate Income Trust $ 6,982,142.73 10.97%
Xxxxxxx Xxxxx Credit
Partners L.P. $ 5,000,000.00 7.86%
PRO RATA SHARE OF
NAME OF LENDER AXELS SERIES B AXELS SERIES B
-------------- --------------- -----------------
Octagon Credit Investors $6,283,928.44 14.3%
Indosuez Capital Funding II,
Limited $3,560,892.72 8.1%
Massachusetts Mutual Life
Insurance Company $2,932,206.75 6.7%
A-1
Mass Mutual Corporate Value
Partners Limited $1,466,543.25 3.3%
Xxxxxxx Xxxxx Prime Rate
Portfolio $3,979,821.28 9.0%
Xxxxxxx Xxxxx Senior Floating
Rate Fund $7,750,179.13 17.6%
Pilgrim America Prime Rate
Trust $2,094,642.72 4.8%
Prime Income Trust $4,398,750.00 10.0%
MLCBO IV (Cayman) Ltd.
(Protective Life Insurance
Company) $1,885,178.44 4.3%
Senior Debt Portfolio $4,398,750.00 10.0%
Xxx Xxxxxx American Capital
Prime Rate Income Trust $5,236,607.28 11.9%
PRO RATA SHARE OF
NAME OF LENDER REVOLVING LOAN COMMITMENT REVOLVING LOAN COMMITMENTS
-------------- ------------------------- --------------------------
Credit Agricole Indosuez $12,000,000 100%
A-2
EXHIBIT I
[FORM OF OPINION OF COUNSEL TO COMPANY]
[Effective Date of Amendment]
Credit Agricole Indosuez
[Address]
and
The Lenders Listed on
Schedule A Hereto
Re: Third Amendment dated as of January __, 1997 to Credit Agreement
dated as of August 18, 1995 among Calmar Inc., the Lenders Party
Thereto, Xxxxxxx Xxxxx & Co., as Syndication Agent, and Credit
Agricole Indosuez, as Administrative Agent, Documentation Agent
-------------------
and Collateral Agent
--------------------
Ladies and Gentlemen:
We have acted as counsel to Calmar Inc., a Delaware corporation
("COMPANY"), in connection with the Third Amendment to Credit Agreement dated as
of January __, 1998 (the "AMENDMENT") among Company and the financial
institutions listed on the signature pages thereof as Lenders ("LENDERS"), which
amends that certain Credit Agreement dated as of August 18, 1995, as previously
amended, among Company, Lenders, Xxxxxxx Sachs & Co., as Syndication Agent, and
Credit Agricole Indosuez, as Administrative Agent (in such capacity,
"ADMINISTRATIVE AGENT"), Documentation Agent and Collateral Agent (the "CREDIT
AGREEMENT"). This opinion is rendered to you in compliance with Section 2B of
the Amendment. The Credit Agreement, as amended by the Amendment, is
hereinafter referred to as the "AMENDED CREDIT AGREEMENT". Capitalized terms
used herein without definition have the same meanings as in the Amended Credit
Agreement.
In our capacity as such counsel, we have examined originals, or copies
identified to our satisfaction as being true copies, of such records, documents
or other instruments as in our judgment are necessary or appropriate to enable
us to render the opinions expressed below. These records, documents and
instruments included the following:
(a) The Certificate of Incorporation of Company, as amended to date;
I-1
(b) The Bylaws of Company, as amended to date;
(c) All records of proceedings and actions of the Board of Directors
of Company relating to the Amendment, the Amended Credit Agreement and the
AXEL Series A Note being delivered to Xxxxxxx Xxxxx Credit Partners L.P. on
the date hereof (the "ADDITIONAL AXEL SERIES A NOTE") and the transactions
contemplated thereby;
(d) The Credit Agreement;
(e) The Amendment; and
(f) The Additional AXEL Series A Note.
We have been furnished with, and with Lenders' consent have relied
upon, certificates of officers of Company with respect to certain factual
matters, copies of which have been delivered to Lenders. In addition, we have
obtained and relied upon such certificates and assurances from public officials
as we have deemed necessary, copies of which have been delivered to Lenders. In
all such examinations, we have assumed the genuineness of all signatures on
original and certified documents, and the conformity to original or certified
documents of all documents submitted to us as conformed or photostatic copies.
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary. We are opining herein as to
the effect on the subject transactions of only present United States Federal
law; the General Corporation Law of the State of Delaware; and the laws of the
State of New York. As to matters governed by the laws of the State of New York,
we are relying exclusively on the opinion of Xxxxxxxx & O'Neil, LLP of even date
herewith, subject to all of the assumptions, qualifications, limitations and
exceptions set forth in such opinion, a copy of which is attached hereto as
Exhibit A. We are not opinion on, and we assume no responsibility as to, the
---------
applicability to or effect on any of the matters covered herein of the laws of
any other jurisdiction. In addition, except as expressly covered in this
opinion, we are not expressing any opinion as to the effect of compliance by
Lenders with any state or federal laws or regulations applicable to the
transactions because of the nature of any of their businesses. We express no
opinion with respect to state securities or "blue sky" laws or state or federal
antifraud, antitrust or environmental laws.
On the basis of the foregoing, and in reliance thereon, and subject to the
limitations, qualifications and exceptions set forth below, we are of the
opinion that:
1. Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
corporate power and authority to own and operate its properties and to carry on
its business as now conducted.
2. Company has all requisite corporate power and authority to
execute and deliver the Amendment, to carry out the transactions contemplated
by, and perform its
I-2
obligations under, the Amendment and the Amended Credit Agreement, and to issue
and pay the Additional AXEL Series A Note.
3. The execution and delivery of the Amendment, the performance of
the Amendment and the Amended Credit Agreement and the issuance, delivery and
payment of the Additional AXEL Series A Note have been duly authorized by all
necessary corporate action on the part of Company. The Amendment and the
Additional AXEL Series A Note have been duly executed and delivered by Company
and the Amendment, the Amended Credit Agreement and the Additional AXEL Series A
Note constitute the legally valid and binding obligations of Company,
enforceable against Company in accordance with their respective terms.
4. Neither the execution and delivery of the Amendment nor the
issuance and payment of the Additional AXEL Series A Note by Company nor the
consummation of the transactions contemplated by the Amendment nor compliance
with the terms and conditions of the Amended Credit Agreement by Company (A)
conflicts with, results in a breach or violation of, or constitutes a default
under, any of the terms, conditions or provisions of (x) the Certificate of
Incorporation or Bylaws of Company or (y) any material term of any material
agreement, instrument, order, writ, judgment or decree known to us after due
inquiry to which Company is a party or by which any of its respective properties
or assets are bound, or (z) any present Federal or New York statute, rule or
regulation or General Corporation Law of the State of Delaware binding on
Company or (B) results in the creation of any Lien upon any of the properties or
assets of Company under any agreement or order referred to in clause (y) above
(other than Liens created pursuant to the Collateral Documents); provided,
--------
however, that we express no opinion as to whether or not the execution, delivery
or performance by Company of the Amendment or the Additional AXEL Series A Note
will constitute a violation of or a default under any covenant, restriction or
provision with respect to financial ratios or tests or any aspect of the
financial condition or results of operations of Company.
5. No governmental consents, approvals, authorizations,
registrations, declarations or filings with any federal, Delaware corporation,
California State or New York state governmental authority are required by
Company in connection with the execution and delivery by Company of the
Amendment, the performance by Company of the Amendment or the Amended Agreement,
or the issuance, delivery and payment of the Additional AXEL Series A Note by
Company.
6. The making of the Loans and the application of the proceeds
thereof as provided in the Amended Credit Agreement do not violate Regulation G,
T, U or X of the Board of Governors of the Federal Reserve System.
Our opinion in paragraph 3 above as to the validity, binding effect
and enforceability of the Amendment, the Amended Credit Agreement, and the
Additional AXEL Series A Note is subject to all applicable bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally. In addition, we advise you that the
enforceability of the Amendment, the Amended Credit Agreement and the Additional
AXEL Series A Note is subject to (i) the effect of general
I-3
principles of equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of
specific performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law, and (ii) the qualification that the enforcement
of certain indemnification or waiver provisions may be limited by law or public
policy considerations and that certain remedial and exculpatory provisions
(including set-off rights) may be unenforceable but the remedies and protections
provided in such documents, taken as a whole, should not be inadequate for the
practical realization of the benefits intended to be afforded thereby.
Our opinions in paragraph 4 above as to the compliance with certain
statutes, rules and regulations and as to the lack of any required consents or
approvals of, authorizations by, or registrations, declarations or filings with
certain governmental authorities are based upon a review of those statutes,
rules and regulations which, in our experience, are normally applicable to
transactions of the type contemplated by the Amendment and the Amended Credit
Agreement.
To the extent that the obligations of Company may be dependent upon
such matters, we have assumed for purposes of this opinion, other than with
respect to Company, that each additional party to the agreements and contracts
referred to herein is duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation; that each such other party
has the requisite corporate or other organizational power and authority to
perform its obligations under such agreements and contracts, as applicable; and
that such agreements and contracts have been duly authorized, executed and
delivered by, and each of them constitutes the legal, valid and binding
obligation of, such other parties, as applicable, enforceable against such other
parties in accordance with their respective terms. Except as expressly covered
in this opinion, we are not expressing any opinion as to the effect of
compliance by any Lender with any state or federal laws or regulations
applicable to the transactions because of the nature of any of its businesses.
This opinion is rendered only to Administrative Agent and Lenders and
is solely for their benefit in connection with the above transactions. This
opinion may not be relied upon by Administrative Agent or Lenders for any other
purpose, or quoted to or relied upon by any other person, firm or corporation
for any purpose without our prior written consent.
Very truly yours,
I-4
