EXHIBIT 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT; FIRST AMENDMENT TO
U.S. SUBSIDIARIES GUARANTY; FIRST AMENDMENT TO FOREIGN SUBSIDIARIES
GUARANTY; FIRST AMENDMENT TO INTERCOMPANY SUBORDINATION AGREEMENT;
AND FIRST AMENDMENT TO CAPITAL CALL AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT; FIRST AMENDMENT TO U.S.
SUBSIDIARIES GUARANTY; FIRST AMENDMENT TO FOREIGN SUBSIDIARIES GUARANTY; FIRST
AMENDMENT TO INTERCOMPANY SUBORDINATION AGREEMENT; AND FIRST AMENDMENT TO
CAPITAL CALL AGREEMENT (collectively, this "Amendment"), dated as of May 29,
2003, among DHM HOLDING COMPANY, INC., a Delaware corporation ("Holdings"), XXXX
FOOD COMPANY, INC., a Delaware corporation (the "U.S. Borrower"), SOLVEST LTD.,
a corporation organized under the laws of Bermuda (the "Bermuda Borrower" and,
together with the U.S. Borrower, the "Borrowers"), certain Subsidiaries of
Holdings party to the U.S. Subsidiaries Guaranty, the Foreign Subsidiaries
Guaranty and the Intercompany Subordination Agreement, Xxxxx X. Xxxxxxx,
individually (in such capacity, "DHM"), and as trustee for the Xxxxxxx Trust
referred to in the Capital Call Agreement (in such capacity, the "Xxxxxxx
Trustee"), the Lenders from time to time party to the Credit Agreement, DEUTSCHE
BANK AG NEW YORK BRANCH, as Administrative Agent (in such capacity, the
"Administrative Agent"), THE BANK OF NOVA SCOTIA and BANC OF AMERICA SECURITIES
LLC, as Co-Syndication Agents (in such capacity, each, a "Co-Syndication Agent"
and, collectively, the "Co-Syndication Agents"), FLEET NATIONAL BANK and SOCIETE
GENERALE, as Co-Documentation Agents (in such capacity, each, a
"Co-Documentation Agent" and, collectively, the "Co-Documentation Agents") and
DEUTSCHE BANK SECURITIES INC., THE BANK OF NOVA SCOTIA AND BANC OF AMERICA
SECURITIES LLC, as Joint Lead Arrangers and Book Runners (in such capacity, each
a "Joint Lead Arranger" and, collectively, the "Joint Lead Arrangers"). All
capitalized terms used herein and not otherwise defined shall have the
respective meanings provided such terms in the Credit Agreement.
WITNESSETH:
WHEREAS, Holdings, the Borrowers, the Lenders, the Agents and
the Joint Lead Arrangers are parties to a Credit Agreement, dated as of March
28, 2003 (as amended, modified or supplemented from time to time to, but not
including, the date hereof, the "Credit Agreement");
WHEREAS, Holdings, the Borrowers, various Domestic
Subsidiaries of Holdings and the Administrative Agent are parties to a U.S.
Subsidiaries Guaranty, dated as of March 28, 2003 (as amended, modified or
supplemented from time to time to, but not including, the date hereof, the "U.S.
Subsidiaries Guaranty");
WHEREAS, Holdings, the Borrowers, various Foreign Subsidiaries
of Holdings and the Administrative Agent are parties to a Foreign Subsidiaries
Guaranty, dated as of March 28, 2003 (as amended, modified or supplemented from
time to time to, but not including, the date hereof, the "Foreign Subsidiaries
Guaranty");
WHEREAS, Holdings, the Borrowers, various Subsidiaries of
Holdings and the Collateral Agent are parties to an Intercompany Subordination
Agreement, dated as of March 28, 2003 (as amended, modified or supplemented from
time to time to, but not including, the date hereof, the "Intercompany
Subordination Agreement");
WHEREAS, DHM, the Xxxxxxx Trustee, Holdings and the
Administrative Agent are parties to a Capital Call Agreement, dated as of March
28, 2003 (as amended, modified or supplemented from time to time to, but not
including, the date hereof, the "Capital Call Agreement"); and
WHEREAS, subject to the terms and conditions of this
Amendment, the parties hereto wish to amend the Credit Agreement, the U.S.
Subsidiaries Guaranty, the Foreign Subsidiaries Guaranty, the Intercompany
Subordination Agreement and the Capital Call Agreement, and to enter into
certain agreements relating to the Credit Agreement, in each case as herein
provided;
NOW, THEREFORE, it is agreed:
I. Amendments and Agreements Relating to Credit Agreement.
1. Section 1.01(c) of the Credit Agreement is hereby amended
by deleting said Section in its entirety and inserting the following new Section
1.01(c) in lieu thereof:
"(c) Multicurrency Facility Revolving Loans. Subject to and
upon the terms and conditions set forth herein, each Multicurrency
Facility RL Lender severally agrees to make, at any time and from time
to time on or after the Initial Borrowing Date and prior to the
Revolving Loan Maturity Date, (I) a revolving loan or revolving loans
to the U.S. Borrower (each, a "U.S. Borrower Multicurrency Facility
Revolving Loan" and, collectively, the "U.S. Borrower Multicurrency
Facility Revolving Loans") and (II) a revolving loan or revolving loans
to the Bermuda Borrower (each, a "Bermuda Borrower Multicurrency
Facility Revolving Loan" and, collectively, the "Bermuda Borrower
Multicurrency Facility Revolving Loans" and with the revolving loans
made to the U.S. Borrower or the Bermuda Borrower pursuant to this
Section 1.01(c) being each called a "Multicurrency Facility Revolving
Loan"), which Multicurrency Facility Revolving Loans:
(i) shall (subject to Section 1.14) be made and
maintained in the respective Available Currency elected by the
U.S. Borrower or the Bermuda Borrower, as the case may be;
(ii) except as hereafter provided, shall, at the
option of the U.S. Borrower or the Bermuda Borrower, be
incurred and maintained as, and/or converted into, one or more
Borrowings of Base Rate Loans, Eurodollar Loans or Euro
Denominated Revolving Loans, provided that (A) except as
otherwise specifically provided in Section 1.10(b), all
Multicurrency Facility Revolving Loans made as part of the
same Borrowing shall at all times consist of Multicurrency
Facility Revolving Loans of the same Type, and (B) unless the
Administrative Agent has determined that the Syndication Date
has occurred (at
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which time this clause (B) shall no longer be applicable), (1)
no more than three Borrowings of Multicurrency Facility
Revolving Loans to be maintained as Eurodollar Loans may be
incurred prior to the 90th day after the Initial Borrowing
Date (or, if later, the last day of the Interest Period
applicable to the third Borrowing of Eurodollar Loans referred
to below), each of which Borrowings of Eurodollar Loans may
only have an Interest Period of one month, and the first of
which Borrowings may only be made on the same date as the
initial Borrowing of Tranche A Term Loans that are maintained
as Eurodollar Loans, the second of which Borrowings may only
be made on the last day of the Interest Period of the first
such Borrowing and the third of which Borrowings may only be
made on the last day of the Interest Period of the second such
Borrowing and (2) all Borrowings of Euro Denominated Revolving
Loans shall have Interest Periods of one week;
(iii) may be repaid and reborrowed in accordance with
the provisions hereof;
(iv) shall not be made (and shall not be required to
be made) by any Multicurrency Facility RL Lender in any
instance where the incurrence thereof (after giving effect to
the use of the proceeds thereof on the date of the incurrence
thereof to repay any amounts theretofore outstanding pursuant
to this Agreement) would cause the Individual Multicurrency
Facility RL Exposure of such Multicurrency Facility RL Lender
to exceed the amount of its Multicurrency Facility Revolving
Loan Commitment at such time;
(v) shall not be made (and shall not be required to
be made) by any Multicurrency Facility RL Lender if the making
of same would cause the Aggregate Multicurrency Facility RL
Exposure (after giving effect to the use of the proceeds
thereof on the date of the incurrence thereof to repay any
amounts theretofore outstanding pursuant to this Agreement) to
exceed the Total Multicurrency Facility Revolving Loan
Commitment as then in effect; and
(vi) in the case of any Borrowing of U.S. Borrower
Multicurrency Facility Revolving Loans, shall not be made (and
shall not be required to be made) by any Multicurrency
Facility RL Lender if the making of same would cause the
Aggregate U.S. Borrower Multicurrency Facility RL Exposure
(after giving effect to the use of the proceeds thereof on the
date of the incurrence thereof to repay any amounts
theretofore outstanding pursuant to this Agreement) to exceed
$50,000,000;
provided, that each Multicurrency Facility Revolving Loan made to the
Bermuda Borrower prior to the First Amendment Effective Date, and
outstanding on the First Amendment Effective Date, shall be deemed to
be a Bermuda Borrower Multicurrency Facility Revolving Loan for all
purposes of this Agreement and the other Credit Documents following the
First Amendment Effective Date. The Bermuda Borrower shall have no
liability with respect to any U.S. Borrower Multicurrency Facility
Revolving
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Loans which may be extended to, and which shall constitute obligations
of, the U.S. Borrower.".
2. Section 1.01(e) of the Credit Agreement is hereby amended
by deleting said Section in its entirety and inserting the following new Section
1.01(e) in lieu thereof:
"(e) Multicurrency Facility Swingline Loans. Subject to and
upon the terms and conditions set forth herein, the Swingline Lender
agrees to make, at any time and from time to time on or after the
Initial Borrowing Date and prior to the Swingline Expiry Date, (I) a
revolving loan or revolving loans to the U.S. Borrower (each, a "U.S.
Borrower Multicurrency Facility Swingline Loan" and, collectively, the
"U.S. Borrower Multicurrency Facility Swingline Loans") and (II) a
revolving loan or revolving loans to the Bermuda Borrower (each, a
"Bermuda Borrower Multicurrency Facility Swingline Loan" and,
collectively, the "Bermuda Borrower Multicurrency Facility Swingline
Loans" and with the revolving loans made to the U.S. Borrower or the
Bermuda Borrower pursuant to this Section 1.01(e) being each called a
"Multicurrency Facility Swingline Loan"), which Multicurrency Facility
Swingline Loans:
(i) shall (subject to Section 1.14) be made and
maintained in the respective Available Currency elected by the
U.S. Borrower or the Bermuda Borrower, as the case may be;
(ii) shall be made and maintained as Base Rate Loans
or Euro Denominated Swingline Loans;
(iii) may be repaid and reborrowed in accordance with
the provisions hereof;
(iv) shall not be made (and shall not be required to
be made) if the making of same would cause the Aggregate
Multicurrency Facility RL Exposure (after giving effect to the
use of the proceeds thereof on the date of the incurrence
thereof to repay any amounts theretofore outstanding pursuant
to this Agreement) to exceed the Total Multicurrency Facility
Revolving Loan Commitment at such time;
(v) shall not exceed in aggregate principal amount at
any time outstanding (taking the Dollar Equivalents of all
amounts in Euros), when added to the aggregate principal
amount of Dollar Facility Swingline Loans then outstanding,
the Maximum Swingline Amount; and
(vi) in the case of any Borrowing of U.S. Borrower
Multicurrency Facility Swingline Loans, shall not be made (and
shall not be required to be made) if the making of same would
cause the Aggregate U.S. Borrower Dollar Facility RL Exposure
(after giving effect to the use of the proceeds thereof on the
date of the incurrence thereof to repay any amounts
theretofore outstanding pursuant to this Agreement) to exceed
$50,000,000;
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provided, that each Multicurrency Facility Swingline Loan made to the
Bermuda Borrower prior to the First Amendment Effective Date, and
outstanding on the First Amendment Effective Date, shall be deemed to
be a Bermuda Borrower Multicurrency Facility Swingline Loan for all
purposes of this Agreement and the other Credit Documents following the
First Amendment Effective Date. Notwithstanding anything to the
contrary contained in this Section 1.01(e), (x) the Swingline Lender
shall not be obligated to make any Multicurrency Facility Swingline
Loans at a time when a Lender Default exists with respect to any
Multicurrency Facility RL Lender unless the Swingline Lender has
entered into arrangements satisfactory to it to eliminate the Swingline
Lender's risk with respect to the Defaulting Lender's or Defaulting
Lenders' refunding obligations (through the requirement that Mandatory
Multicurrency Facility RL Borrowings be made from time to time) in
respect of such Multicurrency Facility Swingline Loans, including by
cash collateralizing (in the relevant currency or currencies) such
Defaulting Lender's or Defaulting Lenders' Multicurrency Facility RL
Percentages of the outstanding Multicurrency Facility Swingline Loans
and (y) the Swingline Lender shall not make any Multicurrency Facility
Swingline Loan after it has received written notice from any Credit
Agreement Party, the Required Lenders stating that a Default or an
Event of Default exists and is continuing until such time as the
Swingline Lender shall have received written notice (A) of rescission
of all such notices from the party or parties originally delivering
such notice or notices or (B) of the waiver of such Default or Event of
Default by the Required Lenders. The Bermuda Borrower shall have no
liability with respect to any U.S. Borrower Multicurrency Facility
Swingline Loans which may be extended to, and shall constitute
obligations of, the U.S. Borrower.".
3. Section 1.01(g) of the Credit Agreement is hereby amended
by deleting the first sentence of said Section in its entirety and inserting the
following new sentence in lieu thereof:
"On any Business Day, the Swingline Lender may, in its sole discretion,
give notice to the Multicurrency Facility RL Lenders that the
outstanding U.S. Borrower Multicurrency Facility Swingline Loans or
Bermuda Borrower Multicurrency Facility Swingline Loans in a given
Available Currency shall be funded with a Borrowing of U.S. Borrower
Multicurrency Facility Revolving Loans or Bermuda Borrower
Multicurrency Facility Revolving Loans, as the case may be, in such
Available Currency (provided that (x) such notice shall be deemed to
have been automatically given upon the occurrence of a Default or an
Event of Default under Section 10.05 or upon the exercise of any of the
remedies provided in the last paragraph of Section 10 and (y) if a
Sharing Event shall have occurred, all such Multicurrency Facility
Swingline Loans shall be denominated in Dollars in accordance with the
provisions of Section 1.14, and refunded through a Mandatory
Multicurrency Facility RL Borrowing denominated in Dollars as provided
below), in which case a Borrowing of U.S. Borrower Multicurrency
Facility Revolving Loans or Bermuda Borrower Multicurrency Facility
Revolving Loans, as the case may be, denominated in the respective
Available Currency (subject to the provisions of clause (y) of the
immediately preceding parenthetical sentence) (each such Borrowing, a
"Mandatory Multicurrency Facility RL Borrowing") shall be made on the
third succeeding Business Day by all Multicurrency Facility RL Lenders
pro rata based on
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each such Multicurrency Facility RL Lender's Multicurrency Facility RL
Percentage and the proceeds thereof shall be applied directly to the
Swingline Lender to repay the Swingline Lender for such outstanding
Multicurrency Facility Swingline Loans. Each Multicurrency Facility RL
Lender hereby irrevocably agrees to make U.S. Borrower Multicurrency
Facility Revolving Loans (in the case of a refunding of U.S. Borrower
Multicurrency Facility Swingline Loans) and Bermuda Borrower
Multicurrency Facility Revolving Loans (in the case of a refunding of
Bermuda Borrower Multicurrency Facility Swingline Loans) in the
relevant Available Currency upon three Business Days' notice pursuant
to each Mandatory Multicurrency Facility RL Borrowing in the amount and
in the manner specified in the preceding sentence and on the date
specified in writing by the Swingline Lender notwithstanding (i) that
the amount of the Mandatory Multicurrency Facility RL Borrowing may not
comply with the minimum amount for Borrowings otherwise required
hereunder, (ii) whether any conditions specified in Sections 6A and 6B
are then satisfied, (iii) whether a Default or an Event of Default then
exists, (iv) the date of such Mandatory Multicurrency Facility RL
Borrowing, (v) the amount of the Total Multicurrency Facility Revolving
Loan Commitment at such time and (vi) the amount of the Multicurrency
Facility Revolving Loan Commitment of such Multicurrency Facility RL
Lender at such time.".
4. Section 1.03(a) of the Credit Agreement is hereby amended
by deleting clause (iii) of said Section in its entirety and inserting the
following new clause (iii) in lieu thereof:
"(iii) whether the respective Borrowing shall consist of Tranche A Term
Loans, Tranche B Term Loans, U.S. Borrower Multicurrency Facility
Revolving Loans, Bermuda Borrower Multicurrency Facility Revolving
Loans, U.S. Borrower Dollar Facility Revolving Loans or Bermuda
Borrower Dollar Facility Revolving Loans,".
5. Section 1.03(b) of the Credit Agreement is hereby amended
by deleting clause (C) of said Section in its entirety and inserting the
following new clause (C) in lieu thereof:
"(C) whether the respective Swingline Loans shall constitute U.S.
Borrower Multicurrency Facility Swingline Loans, Bermuda Borrower
Multicurrency Facility Swingline Loans, U.S. Borrower Dollar Facility
Swingline Loans or Bermuda Borrower Dollar Facility Swingline Loans.".
6. Section 1.05(a) of the Credit Agreement is hereby amended
by deleting said Section in its entirety and inserting the following new Section
1.05(a) in lieu thereof:
"(a) Subject to the provisions of Section 1.05(m), the Bermuda
Borrower's (in the case of Tranche B Term Loans, Bermuda Borrower
Multicurrency Facility Revolving Loans, Bermuda Borrower Multicurrency
Facility Swingline Loans, Bermuda Borrower Dollar Facility Revolving
Loans and Bermuda Borrower Dollar Facility Swingline Loans) and the
U.S. Borrower's (in the case of Tranche A Term Loans, U.S. Borrower
Multicurrency Facility Revolving Loans, U.S. Borrower Multicurrency
Facility Swingline Loans, U.S. Borrower Dollar Facility Revolving Loans
and U.S. Borrower Dollar Facility Swingline
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Loans) obligation to pay the principal of, and interest on, the Loans
made by each Lender shall be evidenced (i) if Tranche A Term Loans, by
a promissory note duly executed and delivered by the U.S. Borrower
substantially in the form of Exhibit B-1 with blanks appropriately
completed in conformity herewith (each, a "Tranche A Term Note" and,
collectively, the "Tranche A Term Notes"), (ii) if Tranche B Term
Loans, by a promissory note duly executed and delivered by the Bermuda
Borrower substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (each, a "Tranche B Term
Note" and, collectively, the "Tranche B Term Notes"), (iii) if U.S.
Borrower Multicurrency Facility Revolving Loans, by a promissory note
duly executed and delivered by the U.S. Borrower substantially in the
form of Exhibit B-3A, with blanks appropriately completed in conformity
herewith (each, a "U.S. Borrower Multicurrency Facility Revolving Note"
and, collectively, the "U.S. Borrower Multicurrency Facility Revolving
Notes"), (iv) if Bermuda Borrower Multicurrency Facility Revolving
Loans, by a promissory note duly executed and delivered by the Bermuda
Borrower substantially in the form of Exhibit B-3B, with blanks
appropriately completed in conformity herewith (each, a "Bermuda
Borrower Multicurrency Facility Revolving Note" and, collectively, the
"Bermuda Borrower Multicurrency Facility Revolving Notes"), (v) if U.S.
Borrower Dollar Facility Revolving Loans, by a promissory note duly
executed and delivered by the U.S. Borrower substantially in the form
of Exhibit B-4, with blanks appropriately completed in conformity
herewith (each, a "U.S. Borrower Dollar Facility Revolving Note" and,
collectively, the "U.S. Borrower Dollar Facility Revolving Notes"),
(vi) if Bermuda Borrower Dollar Facility Revolving Loans, by a
promissory note duly executed and delivered by the Bermuda Borrower
substantially in the form of Exhibit B-5, with blanks appropriately
completed in conformity herewith (each, a "Bermuda Borrower Dollar
Facility Revolving Note" and, collectively, the "Bermuda Borrower
Dollar Facility Revolving Notes"), (vii) if U.S. Borrower Multicurrency
Facility Swingline Loans, by a promissory note duly executed and
delivered by the U.S. Borrower substantially in the form of Exhibit
B-6A, with blanks appropriately completed in conformity herewith (the
"U.S. Borrower Multicurrency Facility Swingline Note"), (viii) if
Bermuda Borrower Multicurrency Facility Swingline Loans, by a
promissory note duly executed and delivered by the Bermuda Borrower
substantially in the form of Exhibit B-6B, with blanks appropriately
completed in conformity herewith (the "Bermuda Borrower Multicurrency
Facility Swingline Note"), (ix) if U.S. Borrower Dollar Facility
Swingline Loans, by a promissory note duly executed and delivered by
the U.S. Borrower substantially in the form of Exhibit B-7, with blanks
appropriately completed in conformity herewith (the "U.S. Borrower
Dollar Facility Swingline Note"), and (x) if Bermuda Borrower Dollar
Facility Swingline Loans, by a promissory note duly executed and
delivered by the Bermuda Borrower substantially in the form of Exhibit
B-8, with blanks appropriately completed in conformity herewith (the
"Bermuda Borrower Dollar Facility Swingline Note").".
7. Section 1.05(d) of the Credit Agreement is hereby amended
by deleting said Section in its entirety and inserting the following new Section
1.05(d) in lieu thereof:
"(d) The U.S. Borrower Multicurrency Facility Revolving Note
issued to each Multicurrency Facility RL Lender shall (i) be executed
by the U.S. Borrower, (ii) be payable to the order of such
Multicurrency Facility RL Lender (or an affiliate designated
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by such Multicurrency Facility RL Lender) or its registered assigns and
be dated the First Amendment Effective Date (or, if issued thereafter,
the date of issuance thereof), (iii) be in a stated principal amount
(expressed in Dollars) equal to the Multicurrency Facility Revolving
Loan Commitment of such Multicurrency Facility RL Lender on the date of
issuance thereof (or, if issued after the termination of such
Multicurrency Facility Revolving Loan Commitment, in an amount equal to
the Individual U.S. Borrower Multicurrency Facility RL Exposure of the
respective Multicurrency Facility RL Lender), provided that if, because
of fluctuations in exchange rates after the date of issuance thereof,
the U.S. Borrower Multicurrency Facility Revolving Note of any
Multicurrency Facility RL Lender would not be at least as great as the
outstanding principal amount (taking the Dollar Equivalent of all Euro
Denominated Loans evidenced thereby) of the U.S. Borrower Multicurrency
Facility Revolving Loans made by such Multicurrency Facility RL Lender
at any time outstanding, the respective Multicurrency Facility RL
Lender may request (and in such case the U.S. Borrower shall promptly
execute and deliver) a new U.S. Borrower Multicurrency Facility
Revolving Note in an amount equal to the aggregate principal amount
(taking the Dollar Equivalent of all Euro Denominated Loans evidenced
thereby) of the U.S. Borrower Multicurrency Facility Revolving Loans of
such Multicurrency Facility RL Lender outstanding on the date of the
issuance of such new U.S. Borrower Multicurrency Facility Revolving
Note, (iv) with respect to each U.S. Borrower Multicurrency Facility
Revolving Loan evidenced thereby, be payable in the respective
Available Currency in which such U.S. Borrower Multicurrency Facility
Revolving Loan was made, provided that the obligations with respect to
each Euro Denominated Loan evidenced thereby shall be subject to
conversion into Dollar Denominated Loans as provided in (and in the
circumstances contemplated by) Section 1.14, (v) mature on the
Revolving Loan Maturity Date, (vi) bear interest as provided in the
appropriate clauses of Section 1.08 in respect of the U.S. Borrower
Multicurrency Facility Revolving Loans evidenced thereby from time to
time, (vii) be subject to voluntary prepayment as provided in Section
4.01 and mandatory repayment as provided in Section 4.02 and (viii) be
entitled to the benefits of this Agreement and the other Credit
Documents.".
8. Section 1.05(k) of the Credit Agreement is hereby amended
by deleting the text "preceding clause (j)" appearing in the third sentence of
said Section and inserting the text "preceding clause (l)" in lieu thereof.
9. Section 1.05 of the Credit Agreement is hereby further
amended by (i) deleting sub-section (g) of said Section in its entirety, (ii)
redesignating sub-sections (e), (f), (h), (i), (j) and (k) as sub-sections (f),
(g), (j), (k), (l) and (m), respectively and (iii) inserting the following new
sub-sections (e), (h) and (i), in alphabetical order, in said Section:
"(e) The Bermuda Borrower Multicurrency Facility Revolving
Note issued to each Multicurrency Facility RL Lender shall (i) be
executed by the Bermuda Borrower, (ii) be payable to the order of such
Multicurrency Facility RL Lender (or an affiliate designated by such
Multicurrency Facility RL Lender) or its registered assigns and be
dated the Initial Borrowing Date (or, if issued thereafter, the date of
issuance thereof), (iii) be in a stated principal amount (expressed in
Dollars) equal to the Multicurrency Facility Revolving Loan Commitment
of such Multicurrency Facility RL Lender on the
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date of issuance thereof (or, if issued after the termination of such
Multicurrency Facility Revolving Loan Commitment, in an amount equal to
the Individual Bermuda Borrower Multicurrency Facility RL Exposure of
the respective Multicurrency Facility RL Lender), provided that if,
because of fluctuations in exchange rates after the date of issuance
thereof, the Bermuda Borrower Multicurrency Facility Revolving Note of
any Multicurrency Facility RL Lender would not be at least as great as
the outstanding principal amount (taking the Dollar Equivalent of all
Euro Denominated Loans evidenced thereby) of the Bermuda Borrower
Multicurrency Facility Revolving Loans made by such Multicurrency
Facility RL Lender at any time outstanding, the respective
Multicurrency Facility RL Lender may request (and in such case the
Bermuda Borrower shall promptly execute and deliver) a new Bermuda
Borrower Multicurrency Facility Revolving Note in an amount equal to
the aggregate principal amount (taking the Dollar Equivalent of all
Euro Denominated Loans evidenced thereby) of the Bermuda Borrower
Multicurrency Facility Revolving Loans of such Multicurrency Facility
RL Lender outstanding on the date of the issuance of such new Bermuda
Borrower Multicurrency Facility Revolving Note, (iv) with respect to
each Bermuda Borrower Multicurrency Facility Revolving Loan evidenced
thereby, be payable in the respective Available Currency in which such
Bermuda Borrower Multicurrency Facility Revolving Loan was made,
provided that the obligations with respect to each Euro Denominated
Loan evidenced thereby shall be subject to conversion into Dollar
Denominated Loans as provided in (and in the circumstances contemplated
by) Section 1.14, (v) mature on the Revolving Loan Maturity Date, (vi)
bear interest as provided in the appropriate clauses of Section 1.08 in
respect of the Bermuda Borrower Multicurrency Facility Revolving Loans
evidenced thereby from time to time, (vii) be subject to voluntary
prepayment as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (viii) be entitled to the benefits of this
Agreement and the other Credit Documents; provided that each
"Multicurrency Facility Revolving Note" issued by the Bermuda Borrower
prior to the First Amendment Effective Date shall be deemed to be a
"Bermuda Borrower Multicurrency Facility Revolving Note" for all
purposes of this Agreement and the other Credit Documents following the
First Amendment Effective Date.";
"(h) The U.S. Borrower Multicurrency Facility Swingline Note
issued to the Swingline Lender shall (i) be executed by the U.S.
Borrower, (ii) be payable to the order of the Swingline Lender and be
dated the First Amendment Effective Date (or, if issued thereafter, the
date of the issuance thereof), (iii) be in a stated principal amount
(expressed in Dollars) equal to the Maximum Swingline Amount, provided
that if, because of fluctuations in exchange rates after the date of
issuance thereof, the U.S. Borrower Multicurrency Facility Swingline
Note would not be at least as great as the outstanding principal amount
(taking the Dollar Equivalent of all U.S. Borrower Multicurrency
Facility Swingline Loans denominated in Euros) of U.S. Borrower
Multicurrency Facility Swingline Loans at any time outstanding, the
Swingline Lender may request that the U.S. Borrower (and in such case
the U.S. Borrower shall) promptly execute and deliver a new U.S.
Borrower Multicurrency Facility Swingline Note in an amount equal to
the aggregate principal amount (taking the Dollar Equivalent of all
U.S. Borrower Multicurrency Facility Swingline Loans outstanding in
Euros) of U.S. Borrower Multicurrency Facility Swingline Loans
outstanding, (iv) be payable with respect to each U.S. Borrower
Multicurrency Facility Swingline Loan in the respective
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Available Currency in which such U.S. Borrower Multicurrency Facility
Swingline Loan was made, provided that the obligations evidenced by the
U.S. Borrower Multicurrency Facility Swingline Note with respect to
U.S. Borrower Multicurrency Facility Swingline Loans incurred in Euros
shall be subject to conversion into Dollar Denominated Loans as
provided in (and in the circumstances contemplated by) Section 1.14,
(v) mature on the Swingline Expiry Date, (vi) bear interest as provided
in the appropriate clause of Section 1.08 in respect of the U.S.
Borrower Multicurrency Facility Swingline Loans evidenced thereby from
time to time, (vii) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and
(viii) be entitled to the benefits of this Agreement and the other
Credit Documents."; and
"(i) The Bermuda Borrower Multicurrency Facility Swingline
Note issued to the Swingline Lender shall (i) be executed by the
Bermuda Borrower, (ii) be payable to the order of the Swingline Lender
and be dated the Initial Borrowing Date (or, if issued thereafter, the
date of the issuance thereof), (iii) be in a stated principal amount
(expressed in Dollars) equal to the Maximum Swingline Amount, provided
that if, because of fluctuations in exchange rates after the date of
issuance thereof, the Bermuda Borrower Multicurrency Facility Swingline
Note would not be at least as great as the outstanding principal amount
(taking the Dollar Equivalent of all Bermuda Borrower Multicurrency
Facility Swingline Loans denominated in Euros) of Bermuda Borrower
Multicurrency Facility Swingline Loans at any time outstanding, the
Swingline Lender may request that the Bermuda Borrower (and in such
case the Bermuda Borrower shall) promptly execute and deliver a new
Bermuda Borrower Multicurrency Facility Swingline Note in an amount
equal to the aggregate principal amount (taking the Dollar Equivalent
of all Bermuda Borrower Multicurrency Facility Swingline Loans
outstanding in Euros) of Bermuda Borrower Multicurrency Facility
Swingline Loans outstanding, (iv) be payable with respect to each
Bermuda Borrower Multicurrency Facility Swingline Loan in the
respective Available Currency in which such Bermuda Borrower
Multicurrency Facility Swingline Loan was made, provided that the
obligations evidenced by the Bermuda Borrower Multicurrency Facility
Swingline Note with respect to Bermuda Borrower Multicurrency Facility
Swingline Loans incurred in Euros shall be subject to conversion into
Dollar Denominated Loans as provided in (and in the circumstances
contemplated by) Section 1.14, (v) mature on the Swingline Expiry Date,
(vi) bear interest as provided in the appropriate clause of Section
1.08 in respect of the Bermuda Borrower Multicurrency Facility
Swingline Loans evidenced thereby from time to time, (vii) be subject
to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (viii) be entitled to the
benefits of this Agreement and the other Credit Documents; provided
that the "Multicurrency Facility Swingline Note" issued by the Bermuda
Borrower prior to the First Amendment Effective Date shall be deemed to
be the "Bermuda Borrower Multicurrency Facility Swingline Note" for all
purposes of this Agreement and the other Credit Documents following the
First Amendment Effective Date.".
10. Section 1.07 of the Credit Agreement is hereby amended by
deleting the text contained in the first parenthetical in said Section and
inserting the following text in lieu thereof:
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"including U.S. Borrower Multicurrency Facility Revolving Loans,
Bermuda Borrower Multicurrency Facility Revolving Loans and Mandatory
Multicurrency Facility RL Borrowings".
11. Section 1.08(a) of the Credit Agreement is hereby amended
by deleting said Section in its entirety and inserting the following new Section
1.08(a) in lieu thereof:
"(a) The U.S. Borrower hereby agrees to pay (in the case of Tranche A
Term Loans, U.S. Borrower Multicurrency Facility Revolving Loans, U.S.
Borrower Multicurrency Facility Swingline Loans and U.S. Borrower
Dollar Facility Revolving Loans, in each case maintained as Base Rate
Loans, and U.S. Borrower Dollar Facility Swingline Loans (including any
Euro Denominated Loan made to the U.S. Borrower and converted into a
Dollar Denominated Loan pursuant to Section 1.14)) and the Bermuda
Borrower hereby agrees to pay (in the case of Tranche B Term Loans,
Bermuda Borrower Multicurrency Facility Revolving Loans, Bermuda
Borrower Multicurrency Facility Swingline Loans and Bermuda Borrower
Dollar Facility Revolving Loans, in each case maintained as Base Rate
Loans, and Bermuda Borrower Dollar Facility Swingline Loans (including
any Euro Denominated Loan made to the Bermuda Borrower and converted
into a Dollar Denominated Loan pursuant to Section 1.14)), interest in
respect of the unpaid principal amount of each Base Rate Loan made to
it from the date the proceeds thereof are made available to it (or, in
the case of a conversion of any Euro Denominated Loan into a Dollar
Denominated Loan pursuant to Section 1.14, from the date of the
conversion of such Loan) until the earlier of (i) the maturity (whether
by acceleration or otherwise) of such Base Rate Loan and (ii) the
conversion of such Base Rate Loan to a Eurodollar Loan pursuant to
Section 1.06, at a rate per annum which shall be equal to the sum of
the Base Rate in effect from time to time during the period such Base
Rate Loan is outstanding plus the relevant Applicable Margin as in
effect from time to time.".
12. Section 1.08(b) of the Credit Agreement is hereby amended
by (i) inserting the text ", U.S. Borrower Multicurrency Facility Revolving
Loans" immediately following the text "Tranche A Term Loans" appearing in the
first parenthetical in said Section and (ii) inserting the text "Bermuda
Borrower" immediately following the text "Tranche B Term Loans," appearing in
the second parenthetical in said Section.
13. Section 1.08(c) of the Credit Agreement is hereby amended
by deleting the text "The Bermuda Borrower" appearing in said Section and
inserting the text "Each Borrower" in lieu thereof.
14. Section 1.08(d) of the Credit Agreement is hereby amended
by deleting the text "The Bermuda Borrower" appearing in said Section and
inserting the text "Each Borrower" in lieu thereof.
15. Section 1.09 of the Credit Agreement is hereby amended by
(i) deleting the text "(x) in the case of a Eurodollar Loan, a one, two, three
or six-month period" appearing in said Section and inserting the text "(x) in
the case of a Eurodollar Loan, a one, two, three or six-month period or, to the
extent agreed to by all Lenders required to make Loans under the respective
Tranche, a nine or twelve-month period" in lieu thereof, (ii) deleting the first
instance
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of the text "the Bermuda Borrower" appearing in the penultimate sentence of said
Section and inserting the text "the U.S. Borrower or the Bermuda Borrower, as
applicable" in lieu thereof, (iii) deleting the second instance of the text "the
Bermuda Borrower" appearing in the penultimate sentence of said Section and
inserting the text "the relevant Borrower" in lieu thereof, (iv) deleting the
text "the respective Borrower" appearing in the last sentence of said Section
and inserting the text "the U.S. Borrower or the Bermuda Borrower, as
applicable," in lieu thereof and (v) deleting the text "such Borrower" appearing
in the last sentence of said Section and inserting the text "the relevant
Borrower" in lieu thereof.
16. Section 1.10(a) of the Credit Agreement is hereby amended
by deleting clause (z) of said Section in its entirety and inserting the
following new clause (z) in lieu thereof:
"(z) in the case of clause (iv) above, Euro Denominated Loans
(exclusive of any such Euro Denominated Loans which have theretofore
been funded) shall no longer be available until such time as the
Administrative Agent notifies the respective Borrower or Borrowers and
the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or
notice pursuant to Section 1.03(b)(i) given by the respective Borrower
or Borrowers with respect to such Euro Denominated Loans which have not
been incurred shall be deemed rescinded by such Borrower or
Borrowers.".
17. Section 1.10(b) of the Credit Agreement is hereby amended
by deleting the text "the Bermuda Borrower" appearing in clause (i) of the
proviso of said Section and inserting the text "the U.S. Borrower or the Bermuda
Borrower, as the case may be," in lieu thereof.
18. Section 1.10(d) of the Credit Agreement is hereby amended
by deleting said Section in its entirety and inserting the following new Section
1.10(d) in lieu thereof:
"(d) In the event that any Lender shall in good faith
determine (which determination shall, absent manifest error, be final
and conclusive and binding on all parties hereto) at any time that such
Lender is required to maintain reserves (including, without limitation,
any marginal, emergency, supplemental, special or other reserves
required by applicable law) which have been established by any Federal,
state, local or foreign court or governmental agency, authority,
instrumentality or regulatory body with jurisdiction over such Lender
(including any branch, Affiliate or funding office thereof) in respect
of any Euro Denominated Loans or any category of liabilities which
includes deposits by reference to which the interest rate on any Euro
Denominated Loan is determined or any category of extensions of credit
or other assets which includes loans by a non-United States office of
any Lender to non-United States residents, then, unless such reserves
are included in the calculation of the interest rate applicable to such
Euro Denominated Loans or in Section 1.10(a)(ii), such Lender shall
promptly notify Holdings, the U.S. Borrower and/or the Bermuda Borrower
in writing specifying the additional amounts required to indemnify such
Lender against the cost of maintaining such reserves (such written
notice to provide in reasonable detail a computation of such additional
amounts) and the U.S. Borrower (in the case of U.S. Borrower
Multicurrency Facility Revolving Loans and U.S. Borrower Multicurrency
Facility Swingline Loans owing by it and, in
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each case, denominated in Euros) shall pay, and the Bermuda Borrower
(in the case of Bermuda Borrower Multicurrency Facility Revolving Loans
and Bermuda Borrower Multicurrency Facility Swingline Loans owing by it
and, in each case, denominated in Euros) shall pay, to such Lender such
specified amounts as additional interest at the time that the U.S.
Borrower or the Bermuda Borrower is otherwise required to pay interest
in respect of such Euro Denominated Loan or, if later, on written
demand therefor by such Lender.".
19. Section 2A.01(a) of the Credit Agreement is hereby amended
by deleting the text contained in the last five sentences of said Section and
inserting the following text in lieu thereof:
"All Multicurrency Facility Letters of Credit shall be denominated in
Dollars or Euros and shall be issued for the account of the U.S.
Borrower or the Bermuda Borrower. All Dollar Facility Letters of Credit
shall be denominated in Dollars and shall be issued for the account of
the U.S. Borrower or the Bermuda Borrower. Each Multicurrency Facility
Letter of Credit shall constitute either a U.S. Borrower Multicurrency
Facility Letter of Credit or a Bermuda Borrower Multicurrency Facility
Letter of Credit. Each Dollar Facility Letter of Credit shall
constitute either a U.S. Borrower Dollar Facility Letter of Credit or a
Bermuda Borrower Dollar Facility Letter of Credit. The Bermuda Borrower
shall have no liability with respect to any U.S. Borrower Multicurrency
Facility Letter of Credit or any U.S. Borrower Dollar Facility Letter
of Credit which may be issued to the U.S. Borrower.".
20. Section 2A.01(b) of the Credit Agreement is hereby amended
by deleting the text "(viii)" appearing in clause (ii) of said Section and
inserting the text "(ix)" in lieu thereof.
21. Section 2A.01(c) of the Credit Agreement is hereby amended
by (i) redesignating clauses (vi), (vii), (viii) and (ix) of said Section as
clauses (vii), (viii), (ix) and (x), respectively and (ii) inserting the
following new clause (vi) immediately following clause (v) of said Section:
"(vi) no U.S. Borrower Multicurrency Facility Letter of Credit shall be
issued at any time when the Aggregate U.S. Borrower Multicurrency
Facility RL Exposure exceeds (or would after giving effect to such
issuance exceed) $50,000,000,".
22. Section 2A.01(d) of the Credit Agreement is hereby amended
by deleting clause (x) of the second sentence of said Section and inserting the
following new clause (x) in lieu thereof:
"(x) if denominated in Euros, constitute a "Bermuda Borrower
Multicurrency Facility Letter of Credit" for all purposes of this
Agreement, issued, for purposes of Section 2A.04(a), on the Initial
Borrowing Date and".
23. Section 2A.03(a) of the Credit Agreement is hereby amended
by inserting the text "U.S. Borrower Multicurrency Facility Letter of Credit, a
Bermuda Borrower"
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immediately following the text "the requested Letter of Credit shall constitute
a" appearing in said Section.
24. Section 2A.05(a) of the Credit Agreement is hereby amended
by (i) inserting the text "Multicurrency Facility Letters of Credit and U.S.
Borrower" immediately following the text "in the case of U.S. Borrower"
appearing in the first parenthetical in the first sentence of said Section and
(ii) inserting the text "Bermuda Borrower" immediately following the text "in
the case of" appearing in the second parenthetical in the first sentence of said
Section.
25. Section 2A.05(b) of the Credit Agreement is hereby amended
by (i) inserting the text "Multicurrency Facility Letters of Credit and U.S.
Borrower" immediately following the text "with respect to U.S. Borrower"
appearing in the first parenthetical in the first sentence of said Section and
(ii) inserting the text "Bermuda Borrower" immediately following the text "with
respect to" appearing in the second parenthetical in the first sentence of said
Section.
26. Section 2B.01(a) of the Credit Agreement is hereby amended
by deleting said Section in its entirety and inserting the following new Section
2B.01(a) in lieu thereof:
"(a) Subject to and upon the terms and conditions herein set
forth, a Borrower may request a Bank Guaranty Issuer, at any time and
from time to time on and after the Initial Borrowing Date and prior to
the tenth Business Day preceding the Revolving Loan Maturity Date, to
issue, for the account of the U.S. Borrower (in the case of requests
made by it) or the account of the Bermuda Borrower (in the case of
requests made by it) and for the benefit of any holder (or any trustee,
agent or other similar representative for any such holders) of B/G
Supportable Indebtedness of the respective Account Party or any of its
or their Wholly-Owned Subsidiaries, a bank guaranty in a form
customarily used by such Bank Guaranty Issuer or in such other form as
has been approved by such Bank Guaranty Issuer (each such bank
guaranty, a "Bank Guaranty" and collectively, the "Bank Guaranties") in
support of such B/G Supportable Indebtedness (it being understood and
agreed that (i) the form of Bank Guaranties shall be subject to the
respective Bank Guaranty Issuer's internal policies and procedures for
the issuance of bank guaranties and to applicable local law
restrictions and regulations and (ii) each Bank Guaranty Issuer may
request the respective Account Party to accept such Bank Guaranty
Issuer's general business conditions specifically applicable to its
bank guaranty business prior to the issuance of any Bank Guaranty).
Each Bank Guaranty shall constitute a utilization of the Multicurrency
Facility Revolving Loan Commitments and shall, subject to the
provisions of Section 1.14 if a Sharing Event occurs, be participated
in (as more fully described in following Section 2B.04(a)) by the
Multicurrency Facility RL Lenders in accordance with their respective
Multicurrency Facility RL Percentages. All Bank Guaranties shall be
denominated in Dollars or Euros and shall expressly provide the maximum
amount that may be paid thereunder. Each Bank Guaranty shall constitute
either a U.S. Borrower Bank Guaranty or a Bermuda Borrower Bank
Guaranty. The Bermuda Borrower shall have no liability with respect to
any U.S. Borrower Bank Guaranty which may be issued to the U.S.
Borrower.".
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27. Section 2B.01(b) of the Credit Agreement is hereby amended
by (i) deleting the text "the Bermuda Borrower" appearing in the first paragraph
of said Section and inserting the text "the U.S. Borrower or the Bermuda
Borrower, as the case may be," in lieu thereof, (ii) deleting the text "(viii)"
appearing in clause (ii) of said Section and inserting the text "(vii)" in lieu
thereof and (iii) deleting the text "the Bermuda Borrower" appearing in clause
(iii) of said Section and inserting the text "respective Account Party" in lieu
thereof.
28. Section 2B.01(c) of the Credit Agreement is hereby amended
by deleting each instance of the text "the Bermuda Borrower" appearing in
clauses (iii) and (iv) of said Section and inserting the text "the respective
Account Party" in lieu thereof.
29. Section 2B.01(c) of the Credit Agreement is hereby further
amended by (i) redesignating clauses (iii), (iv), (v) and (vi) of said Section
as clauses (iv), (v), (vi) and (vii), respectively and (ii) inserting the
following new clause (iii) immediately following clause (ii) of said Section:
"(iii) no U.S. Borrower Bank Guaranty shall be issued at any time when
the Aggregate U.S. Borrower Multicurrency Facility RL Exposure exceeds
(or would after giving effect to such issuance exceed) $50,000,000,".
30. Section 2B.01(d) of the Credit Agreement is hereby amended
by deleting the text "shall constitute a "Bank Guaranty" for all purposes"
appearing in said Section and inserting the text "shall constitute a "Bermuda
Borrower Bank Guaranty" for all purposes" in lieu thereof.
31. Section 2B.03(a) of the Credit Agreement is hereby amended
by (i) deleting the text "Whenever the Bermuda Borrower desires" appearing in
the first sentence of said Section and inserting the text "Whenever an Account
Party desires" in lieu thereof, (ii) deleting the text "the Bermuda Borrower
shall give" appearing in the first sentence of said Section and inserting the
text "such Account Party shall give" in lieu thereof and (iii) inserting the
text "whether the requested Bank Guaranty shall constitute a U.S. Borrower Bank
Guaranty or a Bermuda Borrower Bank Guaranty and" immediately after the text
"including without limitation" appearing in said Section.
32. Section 2B.03(b) of the Credit Agreement is hereby amended
deleting each instance of the text "the Bermuda Borrower" appearing in said
Section and inserting the text "the U.S. Borrower or the Bermuda Borrower, as
the case may be," in lieu thereof.
33. Section 2B.04(a) of the Credit Agreement is hereby amended
by deleting the text "the Bermuda Borrower" appearing in the first sentence of
said Section and inserting the text "the respective Account Party" in lieu
thereof.
34. Section 2B.04(b) of the Credit Agreement is hereby amended
by deleting the text "the Bermuda Borrower" appearing in said Section and
inserting the text "the respective Account Party" in lieu thereof.
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35. Section 2B.04(c) of the Credit Agreement is hereby amended
by deleting each instance of the text "the Bermuda Borrower" appearing said
Section and inserting the text "the respective Account Party" in lieu thereof.
36. Section 2B.04(e) of the Credit Agreement is hereby amended
by deleting the text "the Bermuda Borrower" appearing in said Section and
inserting the text "the respective Account Party" in lieu thereof.
37. Section 2B.05(a) of the Credit Agreement is hereby amended
by deleting said Section in its entirety and inserting the following new Section
2B.05(a) in lieu thereof:
"(a) The U.S. Borrower hereby agrees (in the case of U.S.
Borrower Bank Guaranties) and the Bermuda Borrower hereby agrees (in
the case of Bermuda Borrower Bank Guaranties) to reimburse the
respective Bank Guaranty Issuer, by making payment in Dollars (in the
case of all Dollar Denominated Bank Guaranties or, after a Sharing
Event, all Bank Guaranties) or Euros (in the case of Euro Denominated
Bank Guaranties at any time prior to a Sharing Event) to the
Administrative Agent in immediately available funds at the Payment
Office (or by making the payment directly to such Bank Guaranty Issuer
at such location as may otherwise have been agreed upon by the
respective Account Party and such Bank Guaranty Issuer), for any
payment or disbursement (in the case of any such payment or
disbursement under any Euro Denominated Bank Guaranty which is unpaid
on the date of the occurrence of a Sharing Event, or which payments or
disbursements are made thereafter, taking the Dollar Equivalent of the
amount of the respective payment or disbursement made in Euros as such
Dollar Equivalent is determined on the first date upon which the
respective Sharing Event occurs or, if later, the date upon which the
respective payment or disbursement is made) made by such Bank Guaranty
Issuer under any Bank Guaranty issued by it (each such amount so paid
until reimbursed, an "Unreimbursed Payment"), not later than the third
Business Day after the Administrative Agent or the Bank Guaranty Issuer
notifies the respective Account Party of such payment or disbursement,
with interest on the amount so paid or disbursed by such Bank Guaranty
Issuer, to the extent not reimbursed prior to 1:00 P.M. (New York
time), on the date of such payment or disbursement, from and including
the date paid or disbursed to but excluding the date such Bank Guaranty
Issuer is reimbursed by the respective Account Party therefor at a rate
per annum which shall be (x) in the case of Euro Denominated Bank
Guaranties for periods occurring prior to the occurrence of a Sharing
Event, the Overnight Euro Rate in effect from time to time plus the
Applicable Margin for Euro Denominated Revolving Loans as in effect
from time to time plus any Mandatory Costs and (y) in the case of
amounts owing in Dollars after the occurrence of a Sharing Event, the
Base Rate in effect from time to time plus the Applicable Margin for
Multicurrency Facility Revolving Loans maintained as Base Rate Loans,
in each case as in effect from time to time, provided, however, to the
extent such amounts are not reimbursed prior to 1:00 P.M. (New York
time) on the third Business Day following notice to the respective
Account Party by the Administrative Agent or the respective Bank
Guaranty Issuer of such payment or disbursement, interest shall
thereafter accrue on the amounts so paid or disbursed by such Bank
Guaranty Issuer (and until reimbursed by the respective Account Party)
at a rate per annum which shall be (x) in the case of Euro Denominated
Bank Guaranties for periods occurring prior to the
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occurrence of a Sharing Event, the Overnight Euro Rate in effect from
time to time plus the Applicable Margin for Euro Denominated Revolving
Loans as in effect from time to time plus any Mandatory Costs plus 2%
and (y) in the case of amounts owing in Dollars after the occurrence of
a Sharing Event, the Base Rate in effect from time to time plus the
Applicable Margin for Multicurrency Facility Revolving Loans maintained
as Base Rate Loans as in effect from time to time plus 2%, in each such
case, with interest to be payable on demand, provided further, that it
is understood and agreed, however, that the notices referred to above
in this clause (a) and in the immediately preceding proviso shall not
be required to be given if a Default or an Event of Default under
Section 10.05 shall have occurred and be continuing (in which case the
Unreimbursed Payments shall be due and payable immediately without
presentment, demand, protest or notice of any kind (all of which are
hereby waived by each Credit Party) and shall bear interest at the rate
provided in the foregoing proviso on and after the third Business Day
following the respective Bank Guaranty Payment). The respective Bank
Guaranty Issuer shall give the respective Account Party prompt notice
of each Bank Guaranty Payment under any Bank Guaranty, provided that
the failure to give, or any delay in giving, any such notice shall in
no way affect, impair or diminish the respective Account Party's
obligations under this Agreement.".
38. Section 2B.05(b) of the Credit Agreement is hereby amended
by deleting said Section in its entirety and inserting the following new Section
2B.05(b) in lieu thereof:
"(b) The obligations of the U.S. Borrower (in the case of U.S.
Borrower Bank Guaranties) and the Bermuda Borrower (in the case of
Bermuda Borrower Bank Guaranties) under this Section 2B.05 to reimburse
the respective Bank Guaranty Issuer with respect to Unreimbursed
Payments (including, in each case, interest thereon) shall be absolute
and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the respective
Account Party may have or have had against any Lender (including in its
capacity as Bank Guaranty Issuer or as B/G Participant), including,
without limitation, any defense based upon the failure of any payment
under a Bank Guaranty (each, a "Bank Guaranty Payment") to conform to
the terms of such Bank Guaranty or any nonapplication or misapplication
by the beneficiary of the proceeds of such Bank Guaranty Payment, the
respective Bank Guaranty Issuer's only obligation to the respective
Account Party being to confirm that any documents required to be
delivered under such Bank Guaranty appear to have been delivered and
that they appear to substantially comply on their face with
requirements of such Bank Guaranty; provided, however, that no Account
Party shall be obligated to reimburse any Bank Guaranty Issuer for any
wrongful payment made by such Bank Guaranty Issuer under a Bank
Guaranty issued by it as a result of deliberate acts or omissions
constituting willful misconduct or gross negligence on the part of such
Bank Guaranty Issuer (as determined by a court of competent
jurisdiction in a final and non-appealable decision). Any action taken
or omitted to be taken by any Bank Guaranty Issuer under or in
connection with any Bank Guaranty shall not create for such Bank
Guaranty Issuer any resulting liability to any Account Party unless
such action is taken or admitted to be taken with gross negligence or
willful misconduct (as determined by a court of competent jurisdiction
in a final and non-appealable decision).".
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39. Section 2B.06 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
2B.06 in lieu thereof:
"2B.06 Increased Costs. If after the Effective Date, any Bank
Guaranty Issuer or any B/G Participant determines in good faith that
the adoption or effectiveness after the Effective Date of any
applicable law, rule or regulation, order, guideline or request or any
change therein, or any change after the Effective Date in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank Guaranty Issuer or
any B/G Participant with any request or directive (whether or not
having the force of law) by any such authority, central bank or
comparable agency shall either (i) impose, modify or make applicable
any reserve, deposit, capital adequacy or similar requirement against
Bank Guaranties issued by such Bank Guaranty Issuer or such B/G
Participant's participation therein, or (ii) impose on any Bank
Guaranty Issuer or any B/G Participant any other conditions directly or
indirectly affecting this Agreement, any Bank Guaranty or such B/G
Participant's participation therein; and the result of any of the
foregoing is to increase the cost to such Bank Guaranty Issuer or such
B/G Participant of issuing, maintaining or participating in any Bank
Guaranty, or to reduce the amount of any sum received or receivable by
such Bank Guaranty Issuer or such B/G Participant hereunder or reduce
the rate of return on its capital with respect to Bank Guaranties,
then, upon written demand to the U.S. Borrower or the Bermuda Borrower,
as the case may be, by such Bank Guaranty Issuer or such B/G
Participant (a copy of which notice shall be sent by such Bank Guaranty
Issuer or such B/G Participant to the Administrative Agent),
accompanied by the certificate described in the last sentence of this
Section 2B.06, the U.S. Borrower or the Bermuda Borrower, as the case
may be, shall pay to such Bank Guaranty Issuer or such B/G Participant
for such increased cost or reduction. A certificate submitted to the
relevant Account Party by such Bank Guaranty Issuer or such B/G
Participant, as the case may be (a copy of which certificate shall be
sent by such Bank Guaranty Issuer or such B/G Participant to the
Administrative Agent), setting forth in reasonable detail the basis for
the determination of such additional amount or amounts necessary to
compensate such Bank Guaranty Issuer or such B/G Participant as
aforesaid shall be final and conclusive and binding on such Account
Party absent manifest error, although the failure to deliver any such
certificate shall not release or diminish such Account Party's
obligations to pay additional amounts pursuant to this Section 2B.06
upon subsequent receipt of such certificate.".
40. Section 2B.07 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
2B.07 in lieu thereof:
"2B.07 Cash Collateralization. No later than the date
occurring ten Business Days prior to the Revolving Loan Maturity Date,
the U.S. Borrower or the Bermuda Borrower, as the case may be, shall
either (i) terminate each Bank Guaranty issued to it without an expiry
date (and cause each such terminated Bank Guaranty to be surrendered
for termination to the respective Bank Guaranty Issuer) or (ii) enter
into cash collateral arrangements with each Bank Guaranty Issuer which
shall have issued a Bank Guaranty to it without an expiry date on terms
satisfactory to such Bank Guaranty Issuer and the Administrative Agent,
with the U.S. Borrower or the Bermuda Borrower, as the case may
-18-
be, depositing cash and/or Cash Equivalents (in the respective currency
or currencies of the respective Bank Guaranties, and in such amounts as
will fully cash collateralize the maximum future payments that could be
made under the respective Bank Guaranties) pursuant to such cash
collateral arrangements to be held as security for all Bank Guaranty
Outstandings of the U.S. Borrower or the Bermuda Borrower, as the case
may be, in respect of such Bank Guaranties."
41. Section 3.01(a) of the Credit Agreement is hereby amended
by deleting the text "The Bermuda Borrower agrees" appearing in clause (x) of
said Section and inserting the text "The Borrowers jointly and severally agree"
in lieu thereof.
42. Section 3.01(b) of the Credit Agreement is hereby amended
by deleting the first sentence of said Section and inserting the following new
sentence in lieu thereof:
"(w) The U.S. Borrower agrees to pay to the Administrative Agent for
distribution to each Multicurrency Facility RL Lender (or, after
Sharing Event has occurred, each RL Lender) (based on their respective
L/C Participation Percentages as from time to time in effect in the
outstanding U.S. Borrower Multicurrency Facility Letters of Credit) in
Dollars (or, in the case of Euro Denominated Letters of Credit, for
periods prior to the occurrence of a Sharing Event, in Euros) a fee in
respect of each U.S. Borrower Multicurrency Facility Letter of Credit
issued hereunder, (x) the Bermuda Borrower agrees to pay to the
Administrative Agent for distribution to each Multicurrency Facility RL
Lender (or, after Sharing Event has occurred, each RL Lender) (based on
their respective L/C Participation Percentages as from time to time in
effect in the outstanding Bermuda Borrower Multicurrency Facility
Letters of Credit) in Dollars (or, in the case of Euro Denominated
Letters of Credit, for periods prior to the occurrence of a Sharing
Event, in Euros) a fee in respect of each Bermuda Borrower
Multicurrency Facility Letter of Credit issued hereunder, (y) the U.S.
Borrower agrees to pay to the Administrative Agent for distribution to
each Dollar Facility RL Lender (or, after Sharing Event has occurred,
each RL Lender) (based on their respective L/C Participation
Percentages in the outstanding U.S. Borrower Dollar Facility Letters of
Credit) in Dollars a fee in respect of each U.S. Borrower Dollar
Facility Letter of Credit issued hereunder and (z) the Bermuda Borrower
agrees to pay to the Administrative Agent for distribution to each
Dollar Facility RL Lender (or, after Sharing Event has occurred, each
RL Lender) (based on their respective L/C Participation Percentages in
the outstanding Bermuda Borrower Dollar Facility Letters of Credit) in
Dollars a fee in respect of each Bermuda Borrower Dollar Facility
Letter of Credit issued hereunder (with all fees payable as described
in this clause (b) being herein referred to as "Letter of Credit
Fees"), in each case, for the period from and including the date of
issuance of such Letter of Credit through the termination of such
Letter of Credit, computed at a rate per annum equal to the Applicable
Margin for Multicurrency Facility Revolving Loans (in the case of
determinations pursuant to preceding clauses (w) and (x)) or Dollar
Facility Revolving Loans (in the case of determination pursuant to
preceding clauses (y) and (z)), in either case maintained as Euro Rate
Loans, as in effect from time to time, on (i) the daily Stated Amount
of such Letter of Credit (in the case of a Dollar Denominated Letter of
Credit and, for periods occurring after a Sharing Event, for all
Letters of Credit) and (ii) the daily Euro L/C Stated Amount of such
Letter of Credit (in the case of a Euro
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Denominated Letter of Credit for all periods prior to the occurrence of
a Sharing Event).".
43. Section 3.01(c) of the Credit Agreement is hereby amended
by inserting the text "to it" immediately following the text "in respect of each
Letter of Credit issued" appearing in the first sentence of said Section.
44. Section 3.01(e) of the Credit Agreement is hereby amended
by deleting the first sentence of said Section in its entirety and inserting the
following new sentence in lieu thereof:
"(x) The U.S. Borrower agrees to pay to the Administrative Agent for
distribution to each Multicurrency Facility RL Lender (or, after
Sharing Event has occurred, each RL Lender) (based on their respective
B/G Participation Percentages as from time to time in effect in the
outstanding U.S. Borrower Bank Guaranties) in Dollars (or, in the case
of Euro Denominated Bank Guaranties, for periods prior to the
occurrence of a Sharing Event, in Euros) a fee in respect of each U.S.
Borrower Bank Guaranty issued hereunder and (y) the Bermuda Borrower
agrees to pay to the Administrative Agent for distribution to each
Multicurrency Facility RL Lender (or, after Sharing Event has occurred,
each RL Lender) (based on their respective B/G Participation
Percentages as from time to time in effect in the outstanding Bermuda
Borrower Bank Guaranties) in Dollars (or, in the case of Euro
Denominated Bank Guaranties, for periods prior to the occurrence of a
Sharing Event, in Euros) a fee in respect of each Bermuda Borrower Bank
Guaranty issued hereunder (with all fees payable as described in this
clause (e) being herein referred to as "Bank Guaranty Fees"), in each
case, for the period from and including the date of issuance of such
Bank Guaranty through the termination of such Bank Guaranty, computed
at a rate per annum equal to the Applicable Margin for Multicurrency
Facility Revolving Loans maintained as Euro Rate Loans, as in effect
from time to time, on (i) the daily Face Amount of such Bank Guaranty
(in the case of a Dollar Denominated Bank Guaranty and, for periods
occurring after a Sharing Event, for all Bank Guaranties) and (ii) the
daily Euro B/G Face Amount of such Bank Guaranty (in the case of a Euro
Denominated Bank Guaranty for all periods prior to the occurrence of a
Sharing Event).".
45. Section 3.01(f) of the Credit Agreement is hereby amended
by (i) deleting the text "The Bermuda Borrower" appearing in said Section and
inserting the text "Each Account Party" in lieu thereof and (ii) inserting the
text "to it" immediately following the text "each Bank Guaranty issued"
appearing in the first sentence of said Section.
46. Section 3.01(g) of the Credit Agreement is hereby amended
by deleting the text "The Bermuda Borrower" appearing in said Section and
inserting the text "The respective Account Party" in lieu thereof.
47. Section 4.01 is hereby amended by deleting clause (i) of
said Section in its entirety and inserting the following new clause (i) in lieu
thereof:
"(i) an Authorized Officer of such Borrower shall give the
Administrative Agent at its Notice Office written notice (or telephonic
notice promptly confirmed in
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writing) of its intent to prepay the Loans, whether such Loans are
Tranche A Term Loans, Tranche B Term Loans, U.S. Borrower Multicurrency
Facility Revolving Loans, Bermuda Borrower Multicurrency Facility
Revolving Loans, U.S. Borrower Dollar Facility Revolving Loans, Bermuda
Borrower Dollar Facility Revolving Loans, U.S. Borrower Multicurrency
Facility Swingline Loans, Bermuda Borrower Multicurrency Facility
Swingline Loans, U.S. Borrower Dollar Facility Swingline Loans and/or
Bermuda Borrower Dollar Facility Swingline Loans, the amount and
currency (or currencies) of the Loans to be prepaid, the Types of Loans
to be repaid and, in the case of Euro Rate Loans (other than Swingline
Loans), the specific Borrowing or Borrowings pursuant to which made,
which notice shall be given by the Authorized Officer of such Borrower
(x) prior to 2:00 P.M. (New York time) at least one Business Day prior
to the date of such prepayment in the case of Loans maintained as Base
Rate Loans (other than Dollar Facility Swingline Loans), (y) the date
of such prepayment in the case of Swingline Loans, provided such notice
is given prior to 10:00 A.M. (New York time) and (z) prior to 10:00
A.M. (New York time) at least three Business Days prior to the date of
such prepayment in the case of Euro Rate Loans (other than Euro
Denominated Swingline Loans) and shall, except in the case of Swingline
Loans, be promptly transmitted by the Administrative Agent to each of
the Lenders;".
48. Section 4.01(ii) is hereby amended by deleting each
instance of the text "the Bermuda Borrower" appearing in said Section and
inserting the text "such Borrower" in lieu thereof.
49. Section 4.01(v) of the Credit Agreement is hereby amended
by deleting the text "(x) at any time prior to the satisfaction in full of the
obligations of the U.S. Borrower and its Subsidiaries to effect Contemplated
Asset Sales pursuant to Section 8.22, in inverse order of maturity (based upon
the then remaining principal amounts of the Scheduled Repayments of such Tranche
of Term Loans after giving effect to all prior reductions thereto) and (y) at
any time thereafter," appearing in said Section.
50. Section 4.02(a)(i) of the Credit Agreement is hereby
amended by deleting said Section in its entirety and inserting the following new
Section 4.02(a)(i) in lieu thereof:
"(a) (i) If on any date the Aggregate Multicurrency Facility RL
Exposure exceeds the Total Multicurrency Facility Revolving Loan
Commitment as then in effect, the U.S. Borrower shall prepay on such
date the principal of outstanding U.S. Borrower Multicurrency Facility
Revolving Loans and/or U.S. Borrower Multicurrency Facility Swingline
Loans, and/or the Bermuda Borrower shall prepay on such date the
principal of outstanding Bermuda Borrower Multicurrency Facility
Revolving Loans and/or Bermuda Borrower Multicurrency Facility
Swingline Loans, in an amount (in the case of payments made with
respect to Euro Denominated Loans, taking the Dollar Equivalent of the
amounts paid in Euros in which payments on such Loans are owing) equal
to such excess (with such repayment of Multicurrency Facility Revolving
Loans and Multicurrency Facility Swingline Loans to be allocated among
U.S. Borrower Multicurrency Facility Revolving Loans, U.S. Borrower
Multicurrency Facility Swingline Loans, Bermuda Borrower Multicurrency
Facility Revolving Loans and Bermuda Borrower Multicurrency Facility
Swingline Loans as the Borrowers may elect). If, after giving effect to
the
-21-
prepayment of all outstanding Multicurrency Facility Swingline Loans
and Multicurrency Facility Revolving Loans, the aggregate amount of the
Multicurrency Facility Letter of Credit Outstandings and Bank Guaranty
Outstandings exceeds the Total Multicurrency Facility Revolving Loan
Commitment as then in effect, the U.S. Borrower agrees (as to U.S.
Borrower Multicurrency Facility Letters of Credit and U.S. Borrower
Bank Guaranties), and the Bermuda Borrower agrees (as to Bermuda
Borrower Multicurrency Facility Letters of Credit and Bermuda Borrower
Bank Guaranties), to pay to the Administrative Agent at the Payment
Office on such date an amount of cash or Cash Equivalents (in Dollars
or in the respective currencies in which the Multicurrency Facility
Letter of Credit Outstandings or Bank Guaranty Outstandings are
denominated) equal to the amount of such excess (up to a maximum amount
equal to (x) in the case of the U.S. Borrower, the Multicurrency
Facility Letter of Credit Outstandings with respect to U.S. Borrower
Multicurrency Facility Letters of Credit and the Bank Guaranty
Outstandings with respect to U.S. Borrower Bank Guaranties at such time
and (y) in the case of the Bermuda Borrower, the Multicurrency Facility
Letter of Credit Outstandings with respect to Bermuda Borrower
Multicurrency Facility Letters of Credit and the Bank Guaranty
Outstandings with respect to Bermuda Borrower Bank Guaranties at such
time), such cash or Cash Equivalents to be held as security for all
obligations of the U.S. Borrower or the Bermuda Borrower, as the case
may be, hereunder in a cash collateral account to be established by the
Administrative Agent.".
51. Section 4.02(c) of the Credit Agreement is hereby amended
by (i) deleting the text "8.22" appearing in the subclause (x) of the first
parenthetical in the first proviso of said Section and inserting the text
"9.02(xviii)" in lieu thereof, (ii) inserting the text ", New 2010 Senior Notes
Documents" immediately following the text "New Senior Notes Documents" appearing
in the second sentence of said Section, (iii) inserting the text ", New 2010
Senior Notes" immediately following the text "so long as the New Senior Notes"
appearing in the second sentence of said Section and (iv) inserting the text ",
New 2010 Senior Notes" immediately following the text "prepayment of New Senior
Notes" appearing in the second sentence of said Section.
52. Section 4.02(h)(IV) of the Credit Agreement is hereby
amended by deleting the text "(x) at any time prior to the satisfaction in full
of the obligations of the U.S. Borrower and its Subsidiaries to effect
Contemplated Asset Sales pursuant to Section 8.22, to reduce the then remaining
Scheduled Repayments of the respective Tranche of Term Loans in inverse order of
maturity (based upon the then remaining principal amounts of the Scheduled
Repayments of such Tranche of Term Loans after giving effect to all prior
reductions thereto) and (y) at any time thereafter," appearing in said Section.
53. Section 6A.01 of the Credit Agreement is hereby amended by
deleting the text "$50,000,000" appearing in said Section and inserting the text
"$75,000,000" in lieu thereof.
54. Section 7.03 of the Credit Agreement is hereby amended by
inserting the text "the New 2010 Senior Notes Indenture," immediately following
the text "the New Senior Notes Indenture," appearing in the third parenthetical
in said Section.
-22-
55. Section 7.05(c) of the Credit Agreement is hereby amended
by deleting the first sentence of said Section in its entirety and inserting the
following new sentence in lieu thereof:
"At the time of each Credit Event occurring on or after the Initial
Borrowing Date, the aggregate value of all Margin Stock (other than
treasury stock) owned by Holdings and its Subsidiaries (for such
purpose, using the initial purchase price paid by Holdings or such
Subsidiary for the respective shares of Margin Stock) does not exceed
$5,000,000.".
56. Section 7.26(a) of the Credit Agreement is hereby amended
by (i) inserting the text ", the New 2010 Senior Notes Documents" immediately
following the text "New Senior Notes Documents" appearing in said Section and
(ii) inserting the text ", the New 2010 Senior Notes" immediately following the
text "holders of the New Senior Notes" appearing in said Section.
57. Section 8.01(a) of the Credit Agreement is hereby amended
by deleting the text of said Section in its entirety and inserting the text
"[Intentionally deleted]." in lieu thereof.
58. Section 8.01(e) of the Credit Agreement is hereby amended
by deleting the text "Sections 8.01(a), (b) and (c)" appearing in said Section
and inserting the text "Sections 8.01(b) and (c)" in lieu thereof.
59. Section 8.01(f) of the Credit Agreement is hereby amended
by inserting the text ", New 2010 Senior Notes Document" immediately following
the text "any New Senior Notes Document" appearing in said Section.
60. Section 8.10 of the Credit Agreement is hereby amended by
inserting the text "and the Bermuda Partnership" immediately after the text
"Bermuda Borrower" appearing in the parenthetical in said Section.
61. Section 8.11(a) of the Credit Agreement is hereby amended
by (i) deleting the text "Fair Market Value in excess of $2,500,000" appearing
in the first sentence of said Section and inserting the text "value (for such
purpose, using the initial purchase price paid by such Person for such Real
Property) in excess of $10,000,000" in lieu thereof and (ii) inserting the
following proviso before the period at the end of the first sentence of said
Section:
"; provided however that if the aggregate value of all Second-Tier
Material Real Properties (for such purpose, using the initial purchase
price paid by such Person for the respective Second-Tier Material Real
Property) acquired by such Persons after the Initial Borrowing Date
which are not then covered by Mortgages or Foreign Security Agreements,
as appropriate, equals or exceeds $20,000,000, each Credit Agreement
Party and each Subsidiary Guarantor shall grant to the Collateral Agent
security interests and mortgages in all such Second-Tier Material Real
Properties owned by any such Person which are not then covered by
Mortgages or Foreign Security Agreements, as appropriate (and not just
those required to reduce the aggregate value of all Second-Tier
Material Real Properties (determined as provided above) at such time
below $20,000,000)".
-23-
62. Section 8.11(g) of the Credit Agreement is hereby amended
by (i) inserting the text "(x)" immediately following the text "provided that,"
appearing in the parenthetical in clause (x) of the second sentence of said
Section and (ii) inserting the text "and (y) in the case of a newly-formed
Subsidiary organized in (i) a Qualified Non-U.S. Jurisdiction or (ii) a
Non-Qualified Jurisdiction in which an existing Foreign Subsidiary Guarantor is
organized, to defer the execution and delivery of Security Documents (but not
counterparts of the Foreign Subsidiaries Guaranty or the Intercompany
Subordination Agreement) if the gross book value of its assets (determined as of
the last day of the calendar month then last ended) is less than $10,000,000,
until (and only until) the aggregate gross book value of all newly-formed
Subsidiaries which have not executed Security Documents in reliance on this
proviso (determined as of the last day of the calendar month then last ended)
exceeds $20,000,000, at which time all such excluded Subsidiaries (and not just
those Subsidiaries required to reduce the aggregate gross book value of such
excluded Subsidiaries to below $20,000,000) shall execute the required Security
Documents" at the end of the parenthetical in clause (x) of the second sentence
of said Section.
63. Section 8.17 of the Credit Agreement is hereby amended by
deleting the text of said Section in its entirety and inserting the text
"[Intentionally deleted]." in lieu thereof.
64. Section 8.22 of the Credit Agreement is hereby amended by
deleting the text of said Section in its entirety and inserting the text
"[Intentionally deleted]." in lieu thereof.
65. Section 8.23 of the Credit Agreement is hereby amended by
deleting the text of said Section in its entirety and inserting the following
new text in lieu thereof:
"Each Credit Agreement Party shall take all actions so that at all
times the aggregate value of all Margin Stock (other than treasury
stock) owned by Holdings and its Subsidiaries (for such purpose, using
the initial purchase price paid by Holdings or such Subsidiary for the
respective shares of Margin Stock) shall not exceed $5,000,000. So long
as the aggregate value of Margin Stock (other than treasury stock)
owned by Holdings and its Subsidiaries (determined as provided in the
preceding sentence) does not exceed $5,000,000, all Margin Stock at any
time owned by Holdings and its Subsidiaries shall not constitute
Collateral and no security interest shall be granted therein pursuant
to any Credit Document. Without excusing any violation of the first
sentence of this Section 8.23, if at any time the aggregate value of
all Margin Stock (other than treasury stock) owned by Holdings and its
Subsidiaries (determined as provided in the first sentence of this
Section 8.23) exceeds $5,000,000, then (x) all Margin Stock owned by
the Credit Parties (except to the extent constituting Excluded
Collateral) shall be pledged, and delivered for pledge, pursuant to the
relevant Security Documents and (y) the U.S. Borrower shall execute and
deliver to the Lenders appropriate completed forms (including, without
limitation, Forms G-3 and U-1, as appropriate) establishing compliance
with the Margin Regulations. If at any time any Margin Stock is
required to be pledged as a result of the provisions of the immediately
preceding sentence, repayments of outstanding Obligations shall be
required to be made, and subsequent Credit Events shall only be
permitted, in compliance with the applicable provisions of the Margin
Regulations.".
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66. Section 9.02(v) of the Credit Agreement is hereby amended
by deleting the text "$50,000,000" appearing in said Section and inserting the
text "$100,000,000" in lieu thereof.
67. Section 9.04(xvi) of the Credit Agreement is hereby
amended by (i) deleting the word "and" appearing at the end of clause (III) of
said Section and inserting a comma in lieu thereof and (ii) inserting the text
"and (V) unsecured Indebtedness of the U.S Borrower incurred under the New 2010
Senior Notes and the New 2010 Senior Notes Indenture and of the U.S. Subsidiary
Guarantors (and so long as same remain U.S. Subsidiary Guarantors) under
subordinated guarantees of the obligations of the U.S. Borrower provided under
the New 2010 Senior Notes Documents to which they are a party, in an aggregate
principal amount not to exceed $400,000,000 (less the amount of any repayments
of principal thereof), so long as (A) such Indebtedness is incurred in
accordance with the requirements of the definition of New 2010 Senior Notes and
(B) promptly following the incurrence thereof, Net Cash Proceeds of such
Indebtedness shall have been applied to repay Term Loans (and/or reduce the
Total Revolving Loan Commitment) in accordance with the requirements of Sections
4.02(d), (h) and (i)" immediately preceding the semicolon at the end of said
Section.
68. Section 9.05(i) of the Credit Agreement is hereby amended
by deleting the text "$50,000,000" appearing in said Section and inserting the
text "$75,000,000" in lieu thereof.
69. Section 9.05(vi) of the Credit Agreement is hereby amended
by deleting the text "$100,000,000" appearing in clause (II) of the proviso of
said Section and inserting the text "$150,000,000" in lieu thereof.
70. Section 9.05(viii) of the Credit Agreement is hereby
amended by deleting the text "$100,000,000" appearing in clause (I) of the
proviso of said Section and inserting the text "$150,000,000" in lieu thereof.
71. Section 9.05 of the Credit Agreement is hereby further
amended by (i) deleting the word "and" appearing at the end of clause (xix) of
said Section, (ii) inserting the text "and succeeding clause (xxi) of this
Section" immediately after the text "(xix)" appearing in clause (xx) of said
Section, (iii) deleting the period at the end of clause (xx) of said Section and
inserting the text "; and" in lieu thereof and (iv) inserting the following new
clause (xxi) at the end of said Section:
"(xxi) the Bermuda Borrower may make intercompany loans
(solely with the proceeds of Bermuda Multicurrency Facility Revolving
Loans) to a Foreign Subsidiary which is not a Qualified Non-U.S.
Obligor but which has (I) entered into a guaranty of the full amount of
Bermuda Borrower Multicurrency Facility Revolving Loans incurred to
fund the intercompany loans made by the Bermuda Borrower to the
respective Foreign Subsidiary (plus accrued interest thereon), (II)
entered into Foreign Security Documents (covering all or substantially
all of its assets and consistent with the criteria described in Section
5.15, 5.17 and 5.18(b) for Foreign Security Documents entered into on
the Initial Borrowing Date) securing its obligations under such
guaranty, (III) an intercompany loan agreement, in each case in form
and substance satisfactory to the Administrative Agent and (IV) taken
all action in connection with the foregoing as would have been required
to
-25-
be taken by such entity if same had been a Foreign Subsidiary Guarantor
on the Initial Borrowing Date; provided however that any guaranty to be
entered into pursuant to preceding subclause (I) (x) shall not be
subject to a net worth or similar limitation, and (y) may be subject to
customary insolvency, corporate benefit, financial capability or
similar limitations or rules acceptable to the Administrative Agent.".
72. Section 9.13 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
9.13 in lieu thereof:
"9.13 Bank Debt Leverage Ratio. Holdings will not permit the
Bank Debt Leverage Ratio at any time during a period set forth below to
be greater than the ratio set forth opposite such period below:
Period Ratio
First Amendment Effective Date to and including the day prior 1.35:1.00
to the last day of the 2nd Fiscal Quarter of Fiscal Year 2003
Last Day of the 2nd Fiscal Quarter of Fiscal Year 2003 to and 1.25:1.0
including the day occurring prior to the last day of the 1st
Fiscal Quarter of Fiscal Year 2004
Last Day of the 1st Fiscal Quarter of Fiscal Year 2004 to and 1.15:1.0
including the day occurring prior to the last day of 3rd
Fiscal Quarter of Fiscal Year 2004
Last Day of the 3rd Fiscal Quarter of Fiscal Year 2004 to and 1.10:1.0
including the day occurring prior to the last day of the 1st
Fiscal Quarter of Fiscal Year 2005
Last Day of the 1st Fiscal Quarter of Fiscal Year 2005 1.00:1.0
and thereafter
Notwithstanding anything to the contrary contained in the table set
forth above, at any time from November 1 to and including the last day
of the 1st Fiscal Quarter of each Fiscal Year, the Bank Debt Leverage
Ratio as otherwise set forth in the table above for the applicable
period shall be adjusted by increasing the ratio by 0.25 (for example,
for the period from November 1, 2003 to and including the day prior to
the last day of the 1st Fiscal Quarter of Fiscal Year 2004, the Bank
Debt Leverage Ratio would be increased from 1.25:1.00 to 1.50:1.00).
All determinations of the Bank Debt Leverage Ratio for purposes of this
Section 9.13 shall include Consolidated EBITDA as calculated on a Pro
Forma Basis to give effect to all Permitted Acquisitions and
Significant Asset Sales, if any, effected during (but not after) the
respective Test Period for which Consolidated EBITDA is being
determined; provided that for purposes of making determinations of
compliance with this Section 9.13 pursuant to Section 8.15(a), the Bank
Debt Leverage
-26-
Ratio shall be calculated on a Pro Forma Basis as otherwise required by
the definition of Pro Forma Basis contained herein."
73. Section 9.14(a)(i) of the Credit Agreement is hereby
amended by (i) inserting the text "any New 2010 Senior Notes," immediately
following the text "any New Senior Notes," in the first place such text appears
in said Section, (ii) inserting the text "(v) the New 2010 Senior Notes may be
exchanged for New 2010 Exchange Senior Notes in accordance with the requirements
of the respective definitions thereof and the relevant provisions of this
Agreement," immediately following the text "provided that" appearing in said
Section and (iii) inserting the text ", New 2010 Senior Notes" immediately
following the text "redeem New Senior Notes" appearing in said Section.
74. Section 9.14(a)(ii) of the Credit Agreement is hereby
amended by inserting the text ", any New 2010 Senior Notes Document" immediately
following the text "any New Senior Notes Document" appearing in said Section.
75. Section 9.14(b) of the Credit Agreement is hereby amended
by inserting the text ", the New 2010 Senior Notes Documents" immediately
following the text "the New Senior Notes Documents" appearing in said Section.
76. Section 9.16 of the Credit Agreement is hereby amended by
(i) redesignating clauses (ix) and (x) of said Section as clauses (x) and (xi),
respectively, and (ii) inserting the text "(ix) the New 2010 Senior Notes
Documents;" immediately following clause (viii) of said Section.
77. Section 9.17(a) of the Credit Agreement is hereby amended
by (i) inserting the text "(x)" immediately following the text "provided that,"
appearing in the proviso at the end of said Section and (ii) inserting the
following text before the period at the end of said Section:
"and (y) in the case of a newly-formed Wholly-Owned Subsidiary of the
U.S. Borrower organized in (i) a Qualified Non-U.S. Jurisdiction or
(ii) a Non-Qualified Jurisdiction in which an existing Foreign
Subsidiary Guarantor is organized, the actions described in clauses
(D), (E) and (F) and applicable to such Wholly-Owned Subsidiary, shall
not be required to be taken by such Wholly-Owned Subsidiary if the
gross book value of its assets (determined as of the last day of the
calendar month then last ended) is less than $10,000,000, until (and
only until) the aggregate gross book value of all Wholly-Owned
Subsidiaries which have not taken the actions described in clauses (D),
(E) and (F) and applicable to such Wholly-Owned Subsidiaries in
reliance on this proviso (determined as of the last day of the calendar
month then last ended) exceeds $20,000,000, at which time all such
excluded Wholly-Owned Subsidiaries (and not just those Wholly-Owned
Subsidiaries required to reduce the aggregate gross book value of such
excluded Wholly-Owned Subsidiaries to below $20,000,000) shall take the
actions described in clauses (D), (E) and (F) and applicable to such
Wholly-Owned Subsidiaries.".
78. Section 10.02 of the Credit Agreement is hereby amended by
deleting the text of such Section in its entirety and inserting the following
new text in lieu thereof:
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"(a) Any representation, warranty or statement made or deemed made by
any Credit Party herein or in any other Credit Document (other than a
Foreign Security Document) or in any statement or certificate delivered
pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made, (b) any
representation, warranty or statement which is qualified by a
materiality standard of any kind and is made or deemed made by any
Foreign Credit Party in any Foreign Security Document or in any
statement or certificate delivered pursuant to any Foreign Security
Document shall prove to be untrue in any material respect on the date
as of which made or deemed made and (c) any material representation,
warranty or statement which is not qualified by a materiality standard
of any kind and is made or deemed made by any Foreign Credit Party in
any Foreign Security Document or in any statement or certificate
delivered pursuant to any Foreign Security Document shall prove to be
untrue in any material respect on the date as of which made or deemed
made; or".
79. Section 10.03 of the Credit Agreement is hereby amended by
deleting the text ", 8.22" appearing in said Section.
80. Section 10.07 of the Credit Agreement is hereby amended by
(i) deleting the text "$5,000,000" appearing in said Section and inserting the
text "$10,000,000" in lieu thereof, (ii) deleting the word "and" appearing prior
to the text "(ii)" in the proviso of said Section and (iii) inserting the
following text prior to the text "; or" appearing at the end of said Section:
"and (iii) in the case of any default described in clause (b) above in
the due performance or observance of any covenant or agreement
contained in any Foreign Security Document that is not (directly or
indirectly) related to the perfection or enforceability of a Lien on
Collateral, such default shall not give rise to an Event of Default
until such default shall continue unremedied for a period of at least
15 days after notice to the defaulting party by the Administrative
Agent, the Collateral Agent or the Required Lenders".
81. The final paragraph of Section 10 of the Credit Agreement
is hereby amended by (i) inserting the text "Bermuda Borrower" immediately
following the text "(x) the aggregate Stated Amount of all" appearing in clause
(v) of said Section and (ii) deleting clause (vi) of said Section and inserting
the following new clause (vi) in lieu thereof:
"(vi) direct the U.S. Borrower to pay (and the U.S. Borrower agrees
that upon receipt of such notice, or upon the occurrence of an Event of
Default specified in Section 10.05 with respect to either Borrower, it
will pay) to the Administrative Agent at the Payment Office such
additional amount of cash (in the respective currencies in which such
Letters of Credit are denominated), to be held as security by the
Administrative Agent, as is equal to sum of (x) the aggregate Stated
Amount of all U.S. Borrower Multicurrency Facility Letters of Credit
then outstanding, (y) the aggregate Stated Amount of all U.S. Borrower
Dollar Facility Letters of Credit then outstanding and (z) the
aggregate Face Amount of all U.S. Borrower Bank Guaranties then
outstanding;".
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82. The definition of "Account Party" appearing in Section 11
of the Credit Agreement is hereby amended by inserting the text ", with respect
to Letters of Credit or Bank Guaranties," immediately following the text "shall
mean" appearing in said definition.
83. The definition of "Applicable Margin" appearing in Section
11 of the Credit Agreement is hereby amended by deleting the text "Section
8.01(a) or (b)" appearing in the proviso of the third sentence of said
definition and inserting the text "Section 8.01(b) or (c)" in lieu thereof.
84. The definition of "Applicable Prepayment Percentage"
appearing in Section 11 of the Credit Agreement is hereby amended by (i)
deleting the text "the Credit Agreement Parties shall have satisfied all of
their obligations pursuant to Section 8.22, (iii)" appearing in said definition,
(ii) redesignating clauses (iv) and (v) of said definition as clauses (iii) and
(iv), respectively, and (iii) inserting the text ", New 2010 Senior Notes"
immediately following the text "redeem New Senior Notes" appearing in said
definition.
85. The definition of "Asset Sale" appearing in Section 11 of
the Credit Agreement is hereby amended by deleting the text "$5,000,000"
appearing in said definition and inserting the text "$10,000,000" in lieu
thereof.
86. The definition of "Bank Guaranty Issuer" appearing in
Section 11 of the Credit Agreement is hereby amended by deleting the text "the
Bermuda Borrower" appearing in said definition and inserting the text "the U.S.
Borrower or the Bermuda Borrower" in lieu thereof.
87. The definition of "Change of Control" appearing in Section
11 of the Credit Agreement is hereby amended by inserting the text "any New 2010
Senior Notes Documents," immediately following the text "any New Senior Notes
Documents," appearing in said definition.
88. The definition of "B/G Supportable Indebtedness" appearing
in Section 11 of the Credit Agreement is hereby amended by deleting said
definition in its entirety.
89. The definition of "Documents" appearing in Section 11 of
the Credit Agreement is hereby amended by (i) deleting the word "and" appearing
at the end of clause (viii) of said definition and inserting a comma in lieu
thereof and (ii) inserting the text "and (x) the New 2010 Senior Notes
Documents" immediately preceding the period at the end of said definition.
90. The definition of "Individual Multicurrency Facility RL
Exposure" is hereby amended by deleting the text "made to the Bermuda Borrower
and" appearing in (i) the parenthetical in clause (I) of said definition and
(ii) the parenthetical in clause (III) of said definition.
91. The definition of "Multicurrency Facility Letter of
Credit" appearing in Section 11 of the Credit Agreement is hereby amended by (i)
inserting the text "U.S. Borrower or the" immediately following the text "issued
to the" appearing in said definition and (ii)
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deleting the text "by the Bermuda Borrower" appearing in said definition and
inserting the text "by the respective Borrower" in lieu thereof.
92. The definition of "Note" appearing in Section 11 of the
Credit Agreement is hereby amended by deleting said definition in its entirety
and inserting the following new definition in lieu thereof:
"Note" shall mean each Tranche A Term Note, each Tranche B
Term Note, each U.S. Borrower Multicurrency Facility Revolving Note,
each Bermuda Borrower Multicurrency Facility Revolving Note, the U.S.
Borrower Multicurrency Facility Swingline Note, the Bermuda Borrower
Multicurrency Facility Swingline Note, each U.S. Borrower Dollar
Facility Revolving Note, each Bermuda Borrower Dollar Facility
Revolving Note, the U.S. Borrower Dollar Facility Swingline Note and
the Bermuda Borrower Dollar Facility Swingline Note.
93. The definition of "Permitted Installment Note" appearing
in Section 11 of the Credit Agreement is hereby amended by deleting clause (ii)
of said definition in its entirety and redesignating clause (iii) of said
definition as clause (ii) thereof.
94. The definition of "Restricted Subsidiary" appearing in
Section 11 of the Credit Agreement is hereby amended by inserting the text
"(without giving effect to any termination thereof)" immediately after the text
"New Senior Notes Indenture as in effect on the Initial Borrowing Date"
appearing in said definition.
95. The definition of "Tranche" appearing in Section 11 of the
Credit Agreement is hereby amended by deleting said definition in its entirety
and inserting the following new definition in lieu thereof:
"Tranche" shall mean the respective facilities and commitments
utilized in making Loans hereunder, with there being ten separate
Tranches (i.e., Tranche A Term Loans, Tranche B Term Loans, U.S.
Borrower Multicurrency Facility Revolving Loans, Bermuda Borrower
Multicurrency Facility Revolving Loans, U.S. Borrower Multicurrency
Facility Swingline Loans, Bermuda Borrower Multicurrency Facility
Swingline Loans, U.S. Borrower Dollar Facility Revolving Loans, Bermuda
Borrower Dollar Facility Revolving Loans, U.S. Borrower Dollar Facility
Swingline Loans and Bermuda Borrower Dollar Facility Swingline Loans);
provided that for purposes of the definition of "Supermajority
Lenders", "Majority Lenders" and Section 13.12(a), there shall be
deemed to be four separate Tranches (i.e., Tranche A Term Loans,
Tranche B Term Loans, Multicurrency Facility Revolving Loans and Dollar
Facility Revolving Loans).
96. The definition of "U.S. Borrower Guaranteed Obligations"
appearing in Section 11 of the Credit Agreement is hereby amended by deleting
clause (i) of said definition in its entirety and inserting the following new
clause (i) in lieu thereof:
"(i) the principal and interest on each Tranche B Term Note, each
Bermuda Borrower Multicurrency Facility Revolving Note, the Bermuda
Borrower Multicurrency Facility Swingline Note, each Bermuda Borrower
Dollar Facility Revolving Note and the
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Bermuda Borrower Dollar Facility Swingline Note issued by the Bermuda
Borrower to each Lender, and each Tranche B Term Loan, each Bermuda
Borrower Multicurrency Facility Revolving Loan, each Bermuda Borrower
Multicurrency Facility Swingline Loan, each Bermuda Borrower Dollar
Facility Revolving Loan and each Bermuda Borrower Dollar Facility
Swingline Loan made, under this Agreement, all reimbursement
obligations and Unpaid Drawings with respect to each Letter of Credit
issued for the account of the Bermuda Borrower and all reimbursement
obligations and Unreimbursed Payments with respect to each Bermuda
Borrower Bank Guaranty, together with all the other obligations
(including obligations which, but for the automatic stay under Section
362(a) of the Bankruptcy Code, would become due) and liabilities
(including, without limitation, indemnities, fees and interest thereon)
of the Bermuda Borrower to each Lender, each Agent, each Issuing
Lender, each Bank Guaranty Issuer and the Collateral Agent now existing
or hereafter incurred under, arising out of or in connection with this
Agreement or any other Credit Document and the due performance and
compliance by the Bermuda Borrower with all the terms, conditions and
agreements contained in the Credit Documents to which it is a party
and".
97. Section 11 of the Credit Agreement is hereby further
amended by (i) deleting the definitions of "B/G Supportable Indebtedness",
"Foreign Subsidiaries Guaranty" and "Retained Excess Cash Flow Amount" appearing
in said Section and (ii) inserting the following new definitions in appropriate
alphabetical order:
"Aggregate U.S. Borrower Multicurrency Facility RL Exposure"
at any time shall mean the sum of (i) the aggregate principal amount of
all U.S. Borrower Multicurrency Facility Revolving Loans then
outstanding (for this purpose, using the Dollar Equivalent of each such
U.S. Borrower Multicurrency Facility Revolving Loan denominated in
Euros), (ii) the aggregate amount of all U.S. Borrower Multicurrency
Facility Letter of Credit Outstandings (using the Dollar Equivalent of
all amounts expressed in Euros) at such time, (iii) the aggregate
principal amount of all U.S. Borrower Multicurrency Facility Swingline
Loans then outstanding (for this purpose, using the Dollar Equivalent
of each such U.S. Borrower Multicurrency Swingline Loan denominated in
Euros) and (iv) the aggregate amount of all U.S. Borrower Bank Guaranty
Outstandings (using the Dollar Equivalent of all amounts expressed in
Euros) at such time.
"Bank Guaranty Payment" shall have the meaning provided in
Section 2B.05.
"Bermuda Borrower Bank Guaranty" shall mean each Bank Guaranty
(which may be denominated in Dollars or Euros) issued for the account
of the Bermuda Borrower pursuant to Section 2B.01 and designated as
such by the Bermuda Borrower in the respective Bank Guaranty Request;
provided that each "Bank Guaranty" issued for the account of the
Bermuda Borrower prior to the First Amendment Effective Date shall be
deemed to be a "Bermuda Borrower Bank Guaranty" for all purposes of
this Agreement and the other Credit Documents following the First
Amendment Effective Date.
"Bermuda Borrower Multicurrency Facility Letter of Credit"
shall mean each Multicurrency Facility Letter of Credit (which may be
denominated in Dollars or Euros)
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issued for the account of the Bermuda Borrower pursuant to Section
2A.01 and designated as such by the Bermuda Borrower in the respective
Letter of Credit Request; provided that each "Multicurrency Facility
Letter of Credit" issued for the account of the Bermuda Borrower prior
to the First Amendment Effective Date shall be deemed to be a "Bermuda
Borrower Multicurrency Facility Letter of Credit" for all purposes of
this Agreement and the other Credit Documents following the First
Amendment Effective Date.
"Bermuda Borrower Multicurrency Facility Revolving Loan" shall
have the meaning provided in Section 1.01(c).
"Bermuda Borrower Multicurrency Facility Revolving Note" shall
have the meaning provided in Section 1.05(a).
"Bermuda Borrower Multicurrency Facility Swingline Loan" shall
have the meaning provided in Section 1.01(e).
"Bermuda Borrower Multicurrency Facility Swingline Note" shall
have the meaning provided in Section 1.05(a).
"B/G Participant" shall have the meaning provided in Section
2B.04(a).
"B/G Supportable Indebtedness" shall mean (i) obligations of
the U.S. Borrower or its Wholly-Owned Subsidiaries (or, in the case of
any Existing Bank Guaranty, any Foreign Subsidiary of the U.S.
Borrower) incurred in the ordinary course of business owing to taxing
authorities, custom authorities or with respect to import and/or export
licenses and (ii) such other obligations of the U.S. Borrower or its
Wholly-Owned Subsidiaries as are reasonably acceptable to the
Administrative Agent and the respective Bank Guaranty Issuer and
otherwise permitted to exist pursuant to the terms of this Agreement.
"First Amendment" shall mean the First Amendment to this
Agreement, dated as of May 29, 2003.
"First Amendment Effective Date" shall have the meaning
provided in the First Amendment.
"Foreign Subsidiaries Guaranty" shall have the meaning
provided in Section 5.14(b) and shall include any counterpart thereof
and any other similar guaranty executed and delivered by any Foreign
Subsidiary of Holdings pursuant to Section 8.11, 9.05(xxi) or 9.17.
"Individual Bermuda Borrower Multicurrency Facility RL
Exposure" of any Multicurrency Facility RL Lender shall mean, at any
time, the sum of (I) the aggregate principal amount of all Bermuda
Borrower Multicurrency Facility Revolving Loans made by such
Multicurrency Facility RL Lender and then outstanding (for this
purpose, using the Dollar Equivalent of the principal amount of all
Euro Denominated Revolving Loans made to the Bermuda Borrower and then
outstanding), (II) such Multicurrency Facility
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RL Lender's L/C Participation Percentage in each then outstanding
Bermuda Borrower Multicurrency Facility Letter of Credit multiplied by
the sum of the Stated Amount of the respective Bermuda Borrower
Multicurrency Facility Letter of Credit and any Unpaid Drawings
relating thereto (for this purpose, using the Dollar Equivalent of any
amounts expressed in Euros), (III) such Multicurrency Facility RL
Lender's Multicurrency Facility RL Percentage multiplied by the
aggregate principal amount of outstanding Bermuda Borrower
Multicurrency Facility Swingline Loans (for this purpose, using the
Dollar Equivalent of the principal amount of Euro Denominated Swingline
Loans made to the Bermuda Borrower and then outstanding) and (IV) such
Multicurrency Facility RL Lender's B/G Participation Percentage in each
then outstanding Bermuda Borrower Bank Guaranty multiplied by the sum
of the Face Amount of the respective Bermuda Borrower Bank Guaranty and
any Unreimbursed Payments relating thereto (for this purpose, using the
Dollar Equivalent of any amounts expressed in Euros).
"Individual U.S. Borrower Multicurrency Facility RL Exposure"
of any Multicurrency Facility RL Lender shall mean, at any time, the
sum of (I) the aggregate principal amount of all U.S. Borrower
Multicurrency Facility Revolving Loans made by such Multicurrency
Facility RL Lender and then outstanding (for this purpose, using the
Dollar Equivalent of the principal amount of all Euro Denominated
Revolving Loans made to the U.S. Borrower and then outstanding), (II)
such Multicurrency Facility RL Lender's L/C Participation Percentage in
each then outstanding U.S. Borrower Multicurrency Facility Letter of
Credit multiplied by the sum of the Stated Amount of the respective
U.S. Borrower Multicurrency Facility Letter of Credit and any Unpaid
Drawings relating thereto (for this purpose, using the Dollar
Equivalent of any amounts expressed in Euros), (III) such Multicurrency
Facility RL Lender's Multicurrency Facility RL Percentage multiplied by
the aggregate principal amount of outstanding U.S. Borrower
Multicurrency Facility Swingline Loans (for this purpose, using the
Dollar Equivalent of the principal amount of Euro Denominated Swingline
Loans made to the U.S. Borrower and then outstanding) and (IV) such
Multicurrency Facility RL Lender's B/G Participation Percentage in each
then outstanding U.S. Borrower Bank Guaranty multiplied by the sum of
the Face Amount of the respective U.S. Borrower Bank Guaranty and any
Unreimbursed Payments relating thereto (for this purpose, using the
Dollar Equivalent of any amounts expressed in Euros).
"New 2010 Exchange Senior Notes" shall mean New 2010 Senior
Notes which are substantially identical securities to the New 2010
Senior Notes issued on or prior to the First Amendment Effective Date,
which New 2010 Exchange Senior Notes shall be issued pursuant to a
registered exchange offer or private exchange offer for the New 2010
Senior Notes and pursuant to the New 2010 Senior Notes Indenture. In no
event will the issuance of any New 2010 Exchange Senior Notes increase
the aggregate principal amount of New 2010 Senior Notes then
outstanding or otherwise result in an increase in an interest rate
applicable to the New 2010 Senior Notes.
"New 2010 Senior Notes" shall mean Indebtedness of the U.S.
Borrower evidenced by senior notes, so long as (a) such Indebtedness
has a final maturity no earlier than the seventh anniversary of the
date of the incurrence of such Indebtedness and no required
amortizations prior to such date, (b) such Indebtedness does not add
guarantors,
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obligors or security from that which applies to the New Senior Notes,
(c) the guaranties of such senior notes shall be subject to the same
(or, from the perspective of the Lenders, more favorable) subordination
provisions as applied to the guaranties of the New Senior Notes, (d)
all other terms of such Indebtedness (including, without limitation,
with respect to amortization, redemption provisions, maturities,
covenants, defaults and remedies), are identical to those applicable to
the New Senior Notes, and (e) the Net Cash Proceeds from the incurrence
of such Indebtedness shall have been applied to repay Loans (and/or
reduce the Total Revolving Loan Commitment) in accordance with the
requirements of Sections 4.02(d), (h) and (i), as such Indebtedness is
in effect on the First Amendment Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof. As used herein, the term "New 2010 Senior
Notes" shall include any New 2010 Exchange Senior Notes issued pursuant
to the New 2010 Senior Notes Indenture in exchange for theretofore
outstanding New 2010 Senior Notes, as contemplated by the Offering
Memorandum, dated May 29, 2003, and the definition of New 2010 Exchange
Senior Notes.
"New 2010 Senior Notes Documents" shall mean the New 2010
Senior Notes, the New 2010 Senior Notes Indenture and all other
documents executed and delivered with respect to the New 2010 Senior
Notes or New 2010 Senior Notes Indenture, as in effect on the First
Amendment Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and
thereof.
"New 2010 Senior Notes Indenture" shall mean the Indenture,
dated as of May 29 2003, among the U.S. Borrower, any U.S. Subsidiary
Guarantors from time to time party thereto and the trustee therefor, as
in effect on the First Amendment Effective Date and as the same may be
amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof.
"Second-Tier Material Real Property" of any Person, shall mean
any fee-owned (or equivalent) Real Property acquired by such Person
after the Initial Borrowing Date with a value (determined using the
initial purchase price paid by such Person for such Real Property)
greater than $2,500,000 but less than or equal to $10,000,000.
"U.S. Borrower Bank Guaranty" shall mean each Bank Guaranty
(which may be denominated in Dollars or Euros) issued for the account
of the U.S. Borrower pursuant to Section 2B.01 and designated as such
by the U.S. Borrower in the respective Bank Guaranty Request.
"U.S. Borrower Bank Guaranty Outstandings" shall mean, at any
time, the sum of (i) the aggregate Face Amount of all outstanding U.S.
Borrower Bank Guaranties which have not terminated at such time and
(ii) the aggregate amount of all Unreimbursed Payments (taking the
Dollar Equivalent of any amounts owed in Euros) in respect of all U.S.
Borrower Bank Guaranties at such time.
"U.S. Borrower Multicurrency Facility Letter of Credit" shall
mean each Multicurrency Facility Letter of Credit (which may be
denominated in Dollars or Euros)
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issued for the account of the U.S. Borrower pursuant to Section 2A.01
and designated as such by the U.S. Borrower in the respective Letter of
Credit Request.
"U.S. Borrower Multicurrency Facility Letter of Credit
Outstandings" shall mean, at any time, the sum of (i) the aggregate
Stated Amount of all outstanding U.S. Borrower Multicurrency Facility
Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings
(taking the Dollar Equivalent of all amounts payable in Euros) in
respect of all U.S. Borrower Multicurrency Facility Letters of Credit.
"U.S. Borrower Multicurrency Facility Revolving Loan" shall
have the meaning provided in Section 1.01(c).
"U.S. Borrower Multicurrency Facility Revolving Note" shall
have the meaning provided in Section 1.05(a).
"U.S. Borrower Multicurrency Facility Swingline Loan" shall
have the meaning provided in Section 1.01(e).
"U.S. Borrower Multicurrency Facility Swingline Note" shall
have the meaning provided in Section 1.05(a).
98. Section 13.04(a) of the Credit Agreement is hereby amended
by deleting the text "Section 8.22 or" appearing in said Section.
99. Section 13.12(a) of the Credit Agreement is hereby amended
by deleting the text "Section 8.22 or" appearing in said Section.
100. Notwithstanding anything to the contrary contained in the
Credit Agreement or in any Foreign Security Document, the Lenders hereby agree
that (i) if the gross book value of the receivables of Foreign Credit Parties
organized under the laws of a given jurisdiction which does not permit (or
recognize) the creation of a floating charge over receivables exceeds
$15,000,000 in the aggregate for such Foreign Credit Parties organized in such
jurisdiction (determined as of the last day of the calendar month then last
ended), such Foreign Credit Parties shall remain obligated to take all actions
required by the respective Foreign Security Documents (including providing
informational updates to the Collateral Agent (or its representative)) to ensure
that the security interest of the Collateral Agent in the receivables of such
Foreign Credit Parties remains fully perfected and enforceable, in each case, on
the last day of each calendar month, (ii) if the gross book value of the
receivables of Foreign Credit Parties organized under the laws of a given
jurisdiction which does not permit (or recognize) the creation of a floating
charge over receivables is less than or equal to $15,000,000 in the aggregate
for such Foreign Credit Parties organized in such jurisdiction (determined as of
the last day of the calendar month then last ended), such Foreign Credit Parties
shall be obligated to take all actions required by the respective Foreign
Security Documents (including providing informational updates to the Collateral
Agent (or its representative)) to ensure that the security interest of the
Collateral Agent in the receivables of such Foreign Credit Parties remains fully
perfected and enforceable, in each case, on the last day of each calendar
quarter and (iii) if the gross book value of the receivables of Foreign Credit
Parties organized under the laws of a given jurisdiction which does not permit
(or recognize) the creation of a floating charge over
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receivables is less than $1,000,000 in the aggregate for such Foreign Credit
Parties organized in such jurisdiction (determined as of the last day of the
calendar month then last ended), such Foreign Credit Parties shall not be
obligated to take the actions required to ensure that the security interest of
the Collateral Agent in such receivables remains fully perfected and
enforceable.
101. Notwithstanding anything to the contrary contained in the
Credit Agreement or in any Foreign Security Document, the Lenders hereby agree
that (i) if the gross book value of the inventory of Foreign Credit Parties
organized under the laws of a given jurisdiction which does not permit (or
recognize) the creation of a floating charge over inventory exceeds $15,000,000
in the aggregate for such Foreign Credit Parties organized in such jurisdiction
(determined as of the last day of the calendar month then last ended), such
Foreign Credit Parties shall remain obligated to take all actions required by
the respective Foreign Security Documents (including providing informational
updates to the Collateral Agent (or its representative)) to ensure that the
security interest of the Collateral Agent in the inventory of such Foreign
Credit Parties remains fully perfected and enforceable, in each case, on the
last day of each calendar month, (ii) if the gross book value of the inventory
of Foreign Credit Parties organized under the laws of a given jurisdiction which
does not permit (or recognize) the creation of a floating charge over inventory
is less than or equal to $15,000,000 in the aggregate for such Foreign Credit
Parties organized in such jurisdiction (determined as of the last day of the
calendar month then last ended), such Foreign Credit Parties shall be obligated
to take all actions required by the respective Foreign Security Documents
(including providing informational updates to the Collateral Agent (or its
representative)) to ensure that the security interest of the Collateral Agent in
the inventory of such Foreign Credit Parties remains fully perfected and
enforceable, in each case, on the last day of each calendar quarter and (iii) if
the gross book value of the inventory of Foreign Credit Parties organized under
the laws of a given jurisdiction which does not permit (or recognize) the
creation of a floating charge over inventory is less than $1,000,000 in the
aggregate for such Foreign Credit Parties organized in such jurisdiction
(determined as of the last day of the calendar month then last ended), such
Foreign Credit Parties shall not be obligated to take the actions required to
ensure that the security interest of the Collateral Agent in such inventory
remains fully perfected and enforceable.
102. Notwithstanding anything to the contrary contained in the
Credit Agreement or in any Foreign Security Document, the Lenders hereby agree
that Foreign Credit Parties organized under the laws of a given jurisdiction
which does not permit (or recognize) the creation of a floating charge over
equipment shall be obligated to take all actions required by the respective
Foreign Security Documents (including providing informational updates to the
Collateral Agent (or its representative)) to ensure that the security interest
of the Collateral Agent in the equipment of such Foreign Credit Parties remains
fully perfected and enforceable, in each case, on the last day of each calendar
quarter (rather than on the last day of each calendar month or as otherwise
required by said Foreign Security Documents).
103. Schedule XI of the Credit Agreement is hereby amended by
deleting said Schedule in its entirety and replacing same with new Schedule XI
attached hereto.
104. Schedule XIV of the Credit Agreement is hereby amended by
deleting said Schedule in its entirety and replacing same with new Schedule XIV
attached hereto.
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105. Exhibit A-1 to the Credit Agreement is hereby amended by
deleting same in its entirety and inserting in lieu thereof a new Exhibit A-1 in
the form of Exhibit A-1 attached hereto.
106. Exhibit A-2 to the Credit Agreement is hereby amended by
deleting same in its entirety and inserting in lieu thereof a new Exhibit A-2 in
the form of Exhibit A-2 attached hereto.
107. Exhibit B-3 to the Credit Agreement is hereby amended by
deleting same in its entirety.
108. The Credit Agreement is hereby further amended by adding
Exhibit B-3A thereto in the form of Exhibit B-3A attached hereto.
109. The Credit Agreement is hereby further amended by adding
Exhibit B-3B thereto in the form of Exhibit B-3B attached hereto.
110. The Credit Agreement is hereby further amended by adding
Exhibit B-6A thereto in the form of Exhibit B-6A attached hereto.
111. Exhibit B-6 to the Credit Agreement is hereby amended by
deleting same in its entirety.
112. The Credit Agreement is hereby further amended by adding
Exhibit B-6B thereto in the form of Exhibit B-6B attached hereto.
113. Exhibit C-1 to the Credit Agreement is hereby amended by
deleting same in its entirety and inserting in lieu thereof a new Exhibit C-1 in
the form of Exhibit C-1 attached hereto.
114. Exhibit C-2 to the Credit Agreement is hereby amended by
deleting same in its entirety and inserting in lieu thereof a new Exhibit C-2 in
the form of Exhibit C-2 attached hereto.
115. Exhibit K to the Credit Agreement is hereby amended by
deleting same in its entirety and inserting in lieu thereof a new Exhibit K in
the form of Exhibit K attached hereto.
II. Amendments to U.S. Subsidiaries Guaranty.
1. The first recital of the U.S. Subsidiaries Guaranty is
hereby amended by deleting the text "Bank Guaranties for the account of the
Bermuda Borrower" appearing in said recital and inserting the text "Bank
Guaranties for the respective accounts of the Borrowers" in lieu thereof.
2. The fourth recital of the U.S. Subsidiaries Guaranty is
hereby amended by deleting the text "Bank Guaranties for the account of the
Bermuda Borrower" appearing in said
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recital and inserting the text "Bank Guaranties for the respective accounts of
the Borrowers" in lieu thereof.
3. The fifth recital of the U.S. Subsidiaries Guaranty is
hereby amended by deleting each instance of the text "Bank Guaranties for the
account of the Bermuda Borrower" appearing in said recital and inserting the
text "Bank Guaranties for the respective accounts of the Borrowers" in lieu
thereof.
4. Section 12 of the U.S. Subsidiaries Guaranty is hereby
amended by deleting the text "the account of the Bermuda Borrower" appearing in
the first paragraph of said Section and inserting the text "the respective
accounts of the Borrowers" in lieu thereof.
III. Amendment to Foreign Subsidiaries Guaranty.
1. Section 1 of the Foreign Subsidiaries Guaranty is hereby
amended by deleting the text "with respect to Bank Guaranties" appearing in
clause (x) of said Section and inserting the text "with respect to Bank
Guaranties issued for the account of the Bermuda Borrower" in lieu thereof.
2. Section 17 of the Foreign Subsidiaries Guaranty is hereby
amended by (i) inserting the text "(I)" immediately after the text "it being
understood that" in the first place such text appears in said Section, (ii)
inserting the text " and (II) any modification to Section 24 to add additional
guaranty limitations in respect of an additional Guarantor hereunder, in either
case," immediately prior to the text "shall not constitute" in the first place
such text appears in said Section and (iii) deleting the text "(or to the extent
required by Section 13.12 of the Credit Agreement, with the written consent of
each Lender)" in the first place such text appears in said Section and inserting
the text "(or (A) to the extent required by Section 13.12 of the Credit
Agreement, with the written consent of each Lender, or (B) to the extent
permitted by Section 13.12 of the Credit Agreement, the Administrative Agent)"
in lieu thereof.
IV. Amendments to Intercompany Subordination Agreement.
1. The thirteenth recital of the Intercompany Subordination
Agreement is hereby amended by inserting the text ", the New 2010 Senior Notes
Documents" immediately following the text "the Credit Agreement" appearing in
said recital.
2. The recitals of the Intercompany Subordination Agreement
are hereby further amended by inserting the following new recitals immediately
following the eleventh recital thereof:
"WHEREAS, pursuant to the New 2010 Senior Notes Indenture, the
U.S. Borrower has issued the New 2010 Senior Notes in aggregate
principal amount of $400,000,000 (with the holders from time to time of
such New 2010 Senior Notes being herein called the "New 2010 Senior
Noteholders") pursuant to the New 2010 Senior Notes Indenture;
WHEREAS, certain U.S. Subsidiary Guarantors have guaranteed
the repayment in full of the New 2010 Senior Notes pursuant to the New
2010 Senior Notes Indenture;"
-38-
3. The definition of "Senior Creditors" appearing in Section 7
of the Intercompany Subordination Agreement is hereby amended by (i) deleting
the word "and" appearing immediately following the text "the Existing Senior
Noteholders" and inserting a comma in lieu thereof and (ii) inserting the text
"and the New 2010 Senior Noteholders" immediately following the text "the New
Senior Noteholders" appearing in said definition.
4. The definition of "Senior Indebtedness" appearing in
Section 7 of the Intercompany Subordination Agreement is hereby amended by (i)
deleting the text "Credit Agreement Party" in each place such text appears in
clauses (iii), (iv) and (v) of said definition and inserting the text "U.S.
Credit Party" in lieu thereof (ii) deleting the word "and" appearing at the end
of clause (iv) of said definition, (iii) deleting the period appearing at the
end of clause (v) of said definition and inserting the text "; and" in lieu
thereof and (iv) inserting the following new clause (vi) at the end of said
definition:
"(vi) all Obligations (including Obligations which, but for
the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due) and liabilities of each U.S. Credit Party to the New 2010
Senior Noteholders, now existing or hereafter incurred under, arising
out of or in connection with any New 2010 Senior Notes Documents
(including, without limitation, all such obligations and liabilities
under any guarantees relating thereto) and the due performance and
compliance by each such U.S. Credit Party with the terms of each such
New 2010 Senior Notes Document (all such obligations and liabilities
under this clause (vi) being herein collectively called the "New 2010
Senior Note Obligations").".
V. Amendments to Capital Call Agreement.
1. The recitals of the Capital Call Agreement are hereby
amended by inserting the following new recital immediately following the fourth
recital thereof:
"WHEREAS, the U.S. Borrower has issued $400,000,000 in
aggregate principal amount of New 2010 Senior Notes (with the holders
from time to time of such New 2010 Senior Notes being herein called the
"New 2010 Senior Noteholders") pursuant to the New 2010 Senior Notes
Indenture;".
2. The seventh recital of the Capital Call Agreement is hereby
amended by (i) deleting the word "and" appearing immediately following the text
"under the Credit Agreement" and inserting a comma in lieu thereof and (ii)
inserting the text "and the issuance of New 2010 Senior Notes to the New 2010
Senior Noteholders pursuant to the New 2010 Senior Notes Indenture" immediately
following the text "the New Senior Notes Indenture" appearing in said recital.
3. The definition of "Capital Call Amount" appearing in
Section 1 of the Capital Call Agreement is hereby deleted in its entirety and
the following new definition is inserted in lieu thereof:
"Capital Call Amount" shall mean (i) in the case of a Capital
Call Event described in clause (i) of the definition thereof, that
amount which is required to achieve
-39-
compliance with a maximum Leverage Ratio of 4.65:1.0 as at the last day
of the Test Period ended on the last day of the 1st Fiscal Quarter of
Fiscal Year 2004 (as determined on a Pro Forma Basis, after giving
effect to the repayment of Loans with the proceeds of the respective
Capital Call required pursuant to Section 4.02(e) of the Credit
Agreement), and (ii) in the case of a Capital Call Event described in
clause (ii) of the definition thereof, the Maximum Capital Call Amount
in effect at the time of the occurrence of such Capital Call Event;
provided that in no event shall (x) the Capital Call Amount in respect
of any Capital Call Event exceed the Maximum Capital Call Amount as
same is in effect on the date of the occurrence of the respective
Capital Call Event or (y) the aggregate amount of Investments pursuant
to all Capital Calls under this Agreement exceed $50,000,000.
4. The definition of "Capital Call Event" appearing in Section
1 of the Capital Call Agreement is hereby deleted in its entirety and the
following new definition is inserted in lieu thereof:
"Capital Call Event" shall mean the occurrence of any of the
following: (i) Holdings' failure to achieve a Leverage Ratio of
4.65:1.0 (or less) as at the last day of the Test Period ended on the
last day of the 1st Fiscal Quarter of Fiscal Year 2004 and (ii)
Holdings' failure to deliver a Capital Call Officer's Certificate on
the date of the required delivery of the financial statements in
respect of the 1st Fiscal Quarter of Fiscal Year 2004 pursuant to
Section 8.01(b) of the Credit Agreement.
5. The definition of "Capital Call Officer's Certificate"
appearing in Section 1 of the Capital Call Agreement is hereby deleted in its
entirety and the following new definition is inserted in lieu thereof:
"Capital Call Officer's Certificate" shall mean an officer's
certificate of the Chief Financial Officer of Holdings, which officer's
certificate shall (i) be delivered to the Administrative Agent and the
Lenders on the date of the required delivery of the financial
statements in respect of the 1st Fiscal Quarter of Fiscal Year 2004
pursuant to (and within the time frames specified in) Section 8.01(b)
of the Credit Agreement, (ii) set forth the Consolidated Indebtedness
and Consolidated EBITDA of Holdings as at the last day of, or for, the
Test Period ending on the last day of the 1st Fiscal Quarter of Fiscal
Year 2004, (iii) set forth in reasonable detail the calculations
required to establish that Holdings achieved a Leverage Ratio of
4.65:1.0 (or less) as at the last day of the Test Period ended on the
last day of the 1st Fiscal Quarter of Fiscal Year 2004, and (iv)
otherwise be in form and substance satisfactory to the Administrative
Agent.
6. The definition of "First Compliance Date" appearing in
Section 1 of the Capital Call Agreement is hereby deleted in its entirety.
7. The definition of "Senior Noteholders" appearing in Section
1 of the Capital Call Agreement is hereby amended by inserting the text ", the
New 2010 Senior Noteholders" immediately following the text "the Existing 2013
Senior Noteholders" appearing in said definition.
-40-
8. Section 1 of the Capital Call Agreement is hereby further
amended by inserting the following new definitions in appropriate alphabetical
order:
"New 2010 Senior Noteholders" shall have the meaning provided
in the recitals to this Agreement.
"Compliance Date" shall mean the earlier to occur of (i) that
date on which Holdings shall have delivered a Capital Call Officer's
Certificate demonstrating compliance with a Leverage Ratio of 4.65:1.0
as at the last day of the Test Period ended on the last day of the 1st
Fiscal Quarter of Fiscal Year 2004 and (ii) that date upon which
Xxxxxxx shall have funded a Capital Call in an amount equal to the
required Capital Call Amount pursuant to, and in accordance with the
requirements of, Section 2(a) as a result of a Capital Call Event of
the type described in clause (i) of the definition thereof.
9. Section 2(a) of the Capital Call Agreement is hereby
amended by (i) deleting the comma appearing at the end of clause (w) of said
Section and inserting the word "and" in lieu thereof, (ii) deleting the text
"the date upon which Holdings shall deliver a Capital Call Officer's Certificate
in respect of the 1st Fiscal Quarter of Fiscal Year 2005 which indicates that a
Capital Call Event described in clause (ii) of the definition thereof shall have
occurred, (y) the date any Capital Call Event described in clause (iii) of the
definition hereof shall have occurred, and (z)" appearing in said Section, (iii)
deleting the text "clause (iv)" appearing in said Section and inserting the text
"clause (ii)" in lieu thereof and (iv) inserting the text "the New 2010 Senior
Notes Documents," immediately following the text "the New Senior Notes
Documents," appearing in clause (ii) of the first proviso of said Section.
10. Section 8 of the Capital Call Agreement is hereby amended
by deleting the word "and" appearing immediately following the text "the Credit
Agreement" in said Section and inserting a comma in lieu thereof and (ii)
inserting the text "and the New 2010 Senior Noteholders to enter into the New
2010 Senior Notes Indenture," immediately following the text "the New Senior
Notes Indenture" appearing in said Section.
11. Section 13 of the Capital Call Agreement is hereby amended
by (i) deleting each instance of the text "First Compliance Date" in said
Section and inserting the text "Compliance Date" in lieu thereof and (ii)
deleting the fourth sentence of said Section in its entirety and inserting the
following new sentence in lieu thereof:
"Except as provided in the immediately preceding sentence,
neither Xxxxxxx nor Holdings may assign any of their respective rights
or obligations hereunder without the consent of the Administrative
Agent (acting with the consent of each of the Lenders) and, at all
times prior to the Compliance Date, (i) the consent of the trustee
under the New Senior Notes Indenture (acting with the consent of the
New Senior Noteholders holding a majority of the outstanding principal
amount of the New Senior Notes), (ii) the consent of the trustee under
the New 2010 Senior Notes Indenture (acting with the consent of the New
2010 Senior Noteholders holding a majority of the outstanding principal
amount of the New 2010 Senior Notes) and (iii) the consent of the
trustee under the Existing 2009 Senior Notes Indenture, the trustee
under the Existing 2013 Senior Notes Indenture and the trustee under
the New Senior Notes Indenture (in the case of this clause (iii),
acting
-41-
with the consent of the holders of a majority of the aggregate
principal amount of the Existing 2009 Senior Notes, the Existing 2013
Senior Notes and the New Senior Notes, as a single class) (with the
consents described in preceding clauses (i), (ii) and (iii) being
herein called the "Requisite Senior Noteholder Consents").".
12. Section 14 of the Capital Call Agreement is hereby amended
by deleting the text "First Compliance Date" in said Section and inserting the
text "Compliance Date" in lieu thereof.
13. Section 16 of the Capital Call Agreement is hereby amended
by (i) deleting the text "First Compliance Date" in said Section and inserting
the text "Compliance Date" in lieu thereof, (ii) deleting the word "and"
appearing at the end of clause (ii) of said Section and inserting a comma in
lieu thereof and (iii) inserting the text "and (iv) all New 2010 Senior Notes
and all other amounts owing under the New 2010 Senior Notes Documents (other
than obligations in respect of indemnities not yet claimed) have been repaid in
full" immediately preceding the period at the end said Section.
VI. Miscellaneous Provisions.
1. In order to induce the Lenders to enter into this
Amendment, each Credit Agreement Party hereby represents and warrants that:
(a) no Default or Event of Default exists as of the First
Amendment Effective Date, both immediately before and immediately after
giving effect thereto; and
(b) all of the representations and warranties contained in the
Credit Agreement and the other Credit Documents are true and correct in
all material respects on the First Amendment Effective Date both
immediately before and immediately after giving effect thereto, with
the same effect as though such representations and warranties had been
made on and as of the First Amendment Effective Date (it being
understood that any representation or warranty made as of a specific
date shall be true and correct in all material respects as of such
specific date).
2. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement, the U.S. Subsidiaries Guaranty, the Foreign Subsidiaries
Guaranty, the Intercompany Subordination Agreement, the Capital Call Agreement
or any other Credit Document.
3. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with Holdings and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
-42-
5. This Amendment shall become effective on the date (the
"First Amendment Effective Date") when each of the following conditions shall
have been satisfied; provided that the First Amendment Effective Date may occur
concurrently with the last of such conditions to be satisfied:
(i) each Credit Agreement Party, each Lender, each party to
the Capital Call Agreement, each U.S. Subsidiary Guarantor party to the
U.S. Subsidiaries Guaranty, each Foreign Subsidiary Guarantor party to
the Foreign Subsidiaries Guaranty and each Party (as defined in the
Intercompany Subordination Agreement) party to the Intercompany
Subordination Agreement shall have signed a counterpart hereof (whether
the same or different counterparts) and shall have delivered (including
by way of facsimile transmission) the same to the Administrative Agent
at its Notice Office;
(ii) Holdings and the Borrowers shall have paid to the
Administrative Agent and the Lenders all fees, costs and expenses
(including legal fees and expenses, but excluding (x) legal fees and
expenses not invoiced to Holdings and the Borrowers by the date two
days prior to the First Amendment Effective Date and (y) the Amendment
Fee referred to in Section 6 below) payable to the Administrative Agent
and the Lenders to the extent then due;
(iii) the New 2010 Senior Notes shall have been issued
generating gross cash proceeds of at least $400.0 million, all of which
shall have been applied to repay Loans in accordance with the
requirements of the Credit Agreement (as amended hereby); and
(iv) the Administrative Agent shall have received from Paul,
Hastings, Xxxxxxxx and Xxxxxx LLP, special New York counsel to the
Credit Parties, an opinion addressed to each Agent, the Collateral
Agent and each of the Banks and dated the First Amendment Effective
Date, which opinion shall be required to contain an opinion as to (x)
due authorization, execution and delivery of this Amendment by Holdings
and the U.S. Borrower and (y) no conflict with the New 2010 Senior
Notes Indenture, the New Senior Notes Indenture, the Existing 2009
Senior Notes Indenture and the Existing 2013 Senior Notes Indenture)
and shall be in form and substance reasonably satisfactory to the
Administrative Agent;
provided however that in the event that any Foreign Subsidiary (other than the
Bermuda Borrower) fails to execute this Amendment on the date that all of the
other conditions set forth in this Section 5 shall have been satisfied, this
Amendment shall nevertheless be deemed to have become effective (except for
Parts III and IV hereof) and the First Amendment Effective Date shall be deemed
to have occurred, provided that the Credit Agreement Parties shall cause each
such Foreign Subsidiary which has not so executed this Amendment on such date to
execute and deliver its signature page hereto within 30 calendar days following
the First Amendment Effective Date, at which time the provisions of Parts III
and IV hereof shall become effective (the "Delayed Effective Time").
6. The Borrowers hereby covenant and agree (on a joint and
several basis) that, so long as the First Amendment Effective Date occurs, they
shall pay (in U.S. Dollars) to each Lender which executes and delivers to the
Administrative Agent (or its designee) a
-43-
counterpart hereof by 5:00 P.M. (New York City time) on May 27, 2003, a
non-refundable cash fee (the "Amendment Fee") in an amount equal to 37.5 basis
points (0.375%) on an amount equal to the sum of (i) the aggregate principal
amount of all Term Loans of such Lender outstanding on the First Amendment
Effective Date (after giving effect to the repayment of Term Loans of such
Lender on such date with the Net Cash Proceeds from the issuance of the New 2010
Senior Notes) plus (ii) the Revolving Loan Commitment of such Lender as in
effect on the First Amendment Effective Date (after giving effect to the
reduction of the Total Revolving Loan Commitment on such date with the Net Cash
Proceeds from the issuance of the New 2010 Senior Notes). The Amendment Fee
shall not be subject to counterclaim or set-off, or be otherwise affected by,
any claim or dispute relating to any other matter. The Amendment Fee shall be
paid by the Borrowers to the Administrative Agent for distribution to the
relevant Lenders not later than the second Business Day following the First
Amendment Effective Date.
7. From and after the First Amendment Effective Date or the
Delayed Effective Time, as the case may be, all references in the Credit
Agreement and each of the other Credit Documents to the Credit Agreement, the
U.S. Subsidiaries Guaranty, the Foreign Subsidiaries Guaranty, the Intercompany
Subordination Agreement and the Capital Call Agreement shall be deemed to be
references to the Credit Agreement, the Intercompany Subordination Agreement or
the Capital Call Agreement, as the case may be, as modified hereby on First
Amendment Effective Date or the Delayed Effective Time, as the case may be.
* * *
-44-
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
DHM HOLDING COMPANY, INC.,
as a Guarantor and a Party
By /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President, Chief
Financial Officer and
Assistant Secretary
XXXX FOOD COMPANY, INC.,
as a Borrower and a Party
By /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President and Chief
Financial Officer
SOLVEST, LTD.,
a Borrower and a Party
By /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President and Treasurer
XXXXX X. XXXXXXX,
Individually and as trustee for
the Xxxxx X. Xxxxxxx Living Trust
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
AG 1970, INC.
AG 1971, INC.
AG 1972, INC.
ALYSSUM CORPORATION
BANANERA ANTILLANA (COLOMBIA), INC.
XXXXXXX XXXXXXXXX CORPORATION
BLUE ANTHURIUM, INC.
XXX XXXXX, INC.
CALAZO CORPORATION
CALICAHOMES, INC.
CALIFORNIA POLARIS, INC.
CERULEAN, INC.
CLOVIS CITRUS ASSOCIATION
COOL ADVANTAGE, INC.
COOL CARE, INC.
DELPHINIUM CORPORATION
DIVERSIFIED IMPORTS CO.
DNW SERVICES COMPANY
DOLE ABPIK, INC.
DOLE ARIZONA DRIED FRUIT AND NUT COMPANY
DOLE ASSETS, INC.
DOLE CARROT COMPANY
DOLE CITRUS
DOLE DF&N, INC.
DOLE DIVERSIFIED, INC.
DOLE DRIED FRUIT AND NUT COMPANY
DOLE EUROPE COMPANY
DOLE FARMING, INC.
XXXX FOOD FLIGHT OPERATIONS. INC.
DOLE FRESH FLOWERS, INC.
DOLE FRESH FRUIT COMPANY
DOLE FRESH VEGETABLES, INC.
DOLE HOLDINGS, INC.
DOLE LAND COMPANY, INC.
DOLE LOGISTICS SERVICES, INC.
DOLE NORTHWEST, INC.
DOLE OCEAN CARGO EXPRESS, INC.
DOLE OCEAN LINER EXPRESS, INC.
XXXX XXXXXX, INC.
DOLE PACKAGED FOODS CORPORATION
DOLE SUNFRESH EXPRESS, INC.
DOLE VISAGE, INC.
E.T. WALL COMPANY
EARLIBEST ORANGE ASSOCIATION, INC.
FALLBROOK CITRUS COMPANY, INC.
FLOWERNET, INC.
IKON CORPORATION
LA PETITE D'AGEN, INC.
LINDERO HEADQUARTERS COMPANY, INC.
LINDERO PROPERTY, INC.
M K DEVELOPMENT, INC.
MALAGA COMPANY, INC.
MUSCAT, INC.
OAHU TRANSPORT COMPANY, LIMITED
OCEAN VIEW PRODUCE COMPANY
PACIFIC COAST TRUCK COMPANY
PAN-ALASKA FISHERIES, INC.
PRAIRIE VISTA, INC.
RENAISSANCE CAPITAL CORPORATION
ROYAL PACKING, CO.
SAW GRASS TRANSPORT, INC.
STANDARD FRUIT AND STEAMSHIP COMPANY
STANDARD FRUIT COMPANY
SUN COUNTRY PRODUCE, INC.
SUN GIANT, INC.
XXXXXXX TERMINAL CO.
WAHIAWA WATER COMPANY, INC.
WAIALUA SUGAR COMPANY, INC.
WEST FOODS, INC.
ZANTE CURRANT, INC.
By Xxxxxxx Xxxx,
on behalf of each of the above
Domestic Subsidiaries
By /s/ Xxxxxxx X. Xxxx
-----------------------------------
Title: Authorized Officer
MIRADERO FISHING CO., INC.
By /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
ACTIVIDADES AGRICOLAS, S.A.
By
-----------------------------------
Name:
Title:
AEROFUMIGACION CENTROAMERICANA, S.A.
By
-----------------------------------
Name:
Title:
AGOURA LIMITED
By
-----------------------------------
Name:
Title:
AGRICOLA CALIFORNIA, LTDA.
By
-----------------------------------
Name:
Title:
XXXXXXXX XXXXXXX LTDA.
By
-----------------------------------
Name:
Title:
AGRICOLA PENCAHUE LTDA.
By
-----------------------------------
Name:
Title:
AGRICOLA PUNITAQUI LTDA.
By
-----------------------------------
Name:
Title:
AGRICOLA RAUQUEN LTDA.
By
-----------------------------------
Name:
Title:
AGRICOLA SANTA XXXX, S.A.
By
-----------------------------------
Name:
Title:
AGROINDUSTRIA DEL CARIBE, S.A.
By
-----------------------------------
Name:
Title:
AGROINDUSTRIAL XXXX VERDE, S.A.
By
-----------------------------------
Name:
Title:
AGROINDUSTRIAL PINAS DEL BOSQUE, S.A.
By
-----------------------------------
Name:
Title:
AGROPECUARIA RIO XXXXXXX, X.X.
By
-----------------------------------
Name:
Title:
AGROPECUARIA SAN XXXXXXX LTDA.
By
-----------------------------------
Name:
Title:
AGROPECUARIA SAN XXXXX LTDA.
By
-----------------------------------
Name:
Title:
AGROVERDE S.A.
By
-----------------------------------
Name:
Title:
ALMACENES ATALANTA, S.A.
By
-----------------------------------
Name:
Title:
ALPPHA SIDERAL, S.A.
By
-----------------------------------
Name:
Title:
ASHFORD COMPANY, LTD.
By
-----------------------------------
Name:
Title:
BALTIME LIMITED
By
-----------------------------------
Name:
Title:
BANA LTDA.
By
-----------------------------------
Name:
Title:
BANANACORP, S.A.
By
-----------------------------------
Name:
Title:
BANANERA EL PORVENIR, S.A.
By
-----------------------------------
Name:
Title:
BANANERA XX XXX, X.X.
By
-----------------------------------
Name:
Title:
BANANERA RIO MAME, S.A.
By
-----------------------------------
Name:
Title:
BANAPLUS, INC.
By
-----------------------------------
Name:
Title:
BANCUBER, S.A.
By
-----------------------------------
Name:
Title:
BETINO, S.A.
By
-----------------------------------
Name:
Title:
BIENES Y SERVICIOS S DE X X DE CV
By
-----------------------------------
Name:
Title:
BIENES Y VALORES, S.A.
By
-----------------------------------
Name:
Title:
XXXXXXXX X.X.
By
-----------------------------------
Name:
Title:
CARTONES SAN XXXXXXXX, S.A.
By
-----------------------------------
Name:
Title:
CASTLE & XXXXX WORLDWIDE, LTD.
By
-----------------------------------
Name:
Title:
COMPANIA AGRICOLA EL PROGRESO, S.A.
By
-----------------------------------
Name:
Title:
COMPANIA AGRICOLA INDUSTRIAL
CEIBENA, S.A.
By
-----------------------------------
Name:
Title:
COMPANIA AGRICOLA MAZAPAN, S.A.
By
-------------------------------
Name:
Title:
COMPANIA AGROPECUARIA EL PORVENIR, S.A.
By
-----------------------------------
Name:
Title:
COMPANIA BANANERA DEBA, S.A.
By
-----------------------------------
Name:
Title:
COMPANIA BANANERA DEL SAN XXXXXX, S.A.
By
-----------------------------------
Name:
Title:
COMPANIA BANANERA EL ENCANTO, S.A.
By
-----------------------------------
Name:
Title:
COMPANIA EXPORTADORA DE PRODUCTOS
AGRICOLAS S.C.A.
By
-----------------------------------
Name:
Title:
COMPANIA FINANCIERA DE COSTA RICA, S.A.
By
-----------------------------------
Name:
Title:
COMPANIA XXXXXX DE LA TIERRA, S.A.
By
-----------------------------------
Name:
Title:
COMPANIA NAVIERA AGMARESA, S.A.
By
-----------------------------------
Name:
Title:
CLINICAS MEDICAS DEL AGUAN, S.A.
By
-----------------------------------
Name:
Title:
COMERCIAL INDUSTRIAL ECUATORIANA, S.A.
By
-----------------------------------
Name:
Title:
COMERCIALIZACIONES SUNMEX MEXICANA,
S.A. DE C.V.
By
-----------------------------------
Name:
Title:
COMERCIALIZADORA E IMPORTADORA VINA DEL
MAR, S.A.
By
-----------------------------------
Name:
Title:
COORDINADORA DE SERVICIOS DE
TRANSPORTE, S.A.
By
-----------------------------------
Name:
Title:
COPDEBAN S.A.C.
By
-----------------------------------
Name:
Title:
DESARROLLO BANANERO LA ESPERANZA, S.A.
By
-----------------------------------
Name:
Title:
DESARROLLO MELONERO DEL GOLFO, S.A.
By
-----------------------------------
Name:
Title:
DESARROLLOS URBANOS LA CEIBA, S.A.
By
-----------------------------------
Name:
Title:
DFC FOODS, INC.
By
-----------------------------------
Name:
Title:
DISTRIBUIDORA DE PRODUCTOS DIVERSOS,
S.A.
By
-----------------------------------
Name:
Title:
DIVERSIFICADOS DE COSTA RICA DICORI,
S.A.
By
-----------------------------------
Name:
Title:
DOLE ASIA, LTD.
By
-----------------------------------
Name:
Title:
DOLE CHILE S.A.
By
-----------------------------------
Name:
Title:
DOLE CHINA LIMITED
By
-----------------------------------
Name:
Title:
DOLE COMERCIALIZACION
By
-----------------------------------
Name:
Title:
DOLE DE VENEZUELA, S.A.
By
-----------------------------------
Name:
Title:
DOLE DEUTSCHLAND
BETEILIGUNGSGESELLSCHAFT MBH
By
-----------------------------------
Name:
Title:
DOLE DEUTSCHLAND GMBH
By
-----------------------------------
Name:
Title:
DOLE BRASIL, LTDA.
By
-----------------------------------
Name:
Title:
DOLE EUROPE S.A.S.
By
-----------------------------------
Name:
Title:
DOLE EUROPE B.V.
By
-----------------------------------
Name:
Title:
XXXX FOOD ESPANA, S.A.
By
-----------------------------------
Name:
Title:
XXXX FOODS OF CANADA, LTD.
By
-----------------------------------
Name:
Title:
DOLE FOREIGN HOLDINGS, LTD.
By
-----------------------------------
Name:
Title:
DOLE FRANCE, S.A.
By
-----------------------------------
Name:
Title:
DOLE FRESH FRUIT EUROPE OHG
By
-----------------------------------
Name:
Title:
DOLE FRESH FRUIT HELLAS
By
-----------------------------------
Name:
Title:
DOLE FRESH FRUIT INTERNATIONAL LIMITED
By
-----------------------------------
Name:
Title:
DOLE FRESH FRUIT MED GIDA URUNLERI
TICAET A.S.
By
-----------------------------------
Name:
Title:
DOLE XXXXXXX B.V.
By
-----------------------------------
Name:
Title:
DOLE HONG KONG LTD.
By
-----------------------------------
Name:
Title:
DOLE INTERNATIONAL, LTD.
By
-----------------------------------
Name:
Title:
DOLE ITALIA SPA
By
-----------------------------------
Name:
Title:
KABUSHIKI XXXXXX XXXX
By
-----------------------------------
Name:
Title:
DOLE KOREA, LTD.
By
-----------------------------------
Name:
Title:
MEXICOTEC, S.A. DE C.V.
By
-----------------------------------
Name:
Title:
DOLE NEW ZEALAND LTD.
By
-----------------------------------
Name:
Title:
DOLE PACKAGED FOODS EUROPESAS
By
-----------------------------------
Name:
Title:
DOLE PACIFIC GENERAL SERVICES, LTD.
By
-----------------------------------
Name:
Title:
DOLE PHILIPPINES, INC.
By
-----------------------------------
Name:
Title:
DOLE POLAND SP.ZO.O
By
-----------------------------------
Name:
Title:
QINGDAO XXXX FOOD CO, LTD.
By
-----------------------------------
Name:
Title:
DOLE SHANGHAI CO. LTD.
By
-----------------------------------
Name:
Title:
DOLE SHARED SERVICES, LIMITED
By
-----------------------------------
Name:
Title:
XXXX SOUTH AFRICA
By
-----------------------------------
Name:
Title:
DOLE XXXXXXX X.X.
By
-----------------------------------
Name:
Title:
DOLE U.K. LIMITED
By
-----------------------------------
Name:
Title:
EMBALAJES STANDARD, S.A.
By
-----------------------------------
Name:
Title:
ENERGUA S.A. SUCURSALI HONDURAS
By
-----------------------------------
Name:
Title:
ENERGUA S.A.
By
-----------------------------------
Name:
Title:
EQUIPO PESADO S.A.
By
-----------------------------------
Name:
Title:
ESTIBADORES GOLFITENOS
By
-----------------------------------
Name:
Title:
FABRICA DE MANTECA & JABON
ATLANTIDA, S.A.
By
-----------------------------------
Name:
Title:
FRATELLI ISELLA S.R.L.
By
-----------------------------------
Name:
Title:
FRIOCONT, S.A.
By
-----------------------------------
Name:
Title:
FRUIT CARE SERVICES
By
-----------------------------------
Name:
Title:
FRUTBAN, S.A.
By
-----------------------------------
Name:
Title:
GRANELCONT, S.A.
By
-----------------------------------
Name:
Title:
GUAYAMI, S.A.
By
-----------------------------------
Name:
Title:
HACIENDA XX XXXXXXX, X.X.
By
-----------------------------------
Name:
Title:
HOSPITAL COYOLES, S.A.
By
-----------------------------------
Name:
Title:
INTERFRUIT COMPANY, LIMITED
By
-----------------------------------
Name:
Title:
INVERSIONES AGRICA, S.A.
By
-----------------------------------
Name:
Title:
INVERSIONES DEL AGRO, C.A.
By
-----------------------------------
Name:
Title:
INVERSIONES DEL XXXXXXXX X.X.
By
-----------------------------------
Name:
Title:
COMPANIA INVERSIONES MEDICAS NACIONALE
S.A.
By
-----------------------------------
Name:
Title:
INVERSIONES ORIHUECA LTDA.
By
-----------------------------------
Name:
Title:
INVERSIONES Y VALORES DE
MONTECRISTO, S.A.
By
-----------------------------------
Name:
Title:
XX XXXXXXX SRL
By
-----------------------------------
Name:
Title:
XX XXXXX, X.X.
By
-----------------------------------
Name:
Title:
LABORATORIOS Y SERVICIOS DE
MERISTEMOS, S.A.
By
-----------------------------------
Name:
Title:
MAGAZZINI FRIGORIFERI DI SANTA XXXXXXX
By
-----------------------------------
Name:
Title:
MAHELE, LIMITED
By
-----------------------------------
Name:
Title:
MANUFACTURAS DE CARTON, S.A.
By
-----------------------------------
Name:
Title:
MEGABANANA, S.A.
By
-----------------------------------
Name:
Title:
MODUMOLL, S.A.
By
-----------------------------------
Name:
Title:
MULTISERVICIOS, S.A.
By
-----------------------------------
Name:
Title:
NAPORTEC, S.A.
XXXX XXXXXXXXX GMBH & CO. KG
By
-----------------------------------
Name:
Title:
PEMATIN S.A.
By
-----------------------------------
Name:
Title:
PESCASEROLI S.A.
By
-----------------------------------
Name:
Title:
XXXX ANTILLANA, S.A.
By
-----------------------------------
Name:
Title:
PLASTICOS, S.A.
By
-----------------------------------
Name:
Title:
PRODUCTORA AGRICOLA DE ATLANTIDA, S.A.
By
-----------------------------------
Name:
Title:
PRODUCTORA CARTONERA, S.A.
By
-----------------------------------
Name:
Title:
PRODUCTOS DEL LITORAL, S.A.
By
-----------------------------------
Name:
Title:
PROPOLISA, S.A.
By
-----------------------------------
Name:
Title:
REDAMAWAL, S.A.
By
-----------------------------------
Name:
Title:
REEFERSHIP MARINE SERVICES, LTD
By
-----------------------------------
Name:
Title:
XXXXXX FARMS, S.A.
By
-----------------------------------
Name:
Title:
SERVICIOS ADUANALES BANADOLE
By
-----------------------------------
Name:
Title:
SERVICIOS E INVESTEGACIONES AEREAS, SA
By
-----------------------------------
Name:
Title:
SERVICIOS HONDORENOS DE AGRICULTURA Y
RECURSOS
By
-----------------------------------
Name:
Title:
SERVICIOS TECHNICIOS PORTUARIOS S.A.
By
-----------------------------------
Name:
Title:
SHANGHI XXXX XXXXXX FOOD CO. LTD.
By
-----------------------------------
Name:
Title:
SIEMBRANUEVA, S.A.
By
-----------------------------------
Name:
Title:
CI AGRICOLA EL XXXXXXXX LTDA.
By
-----------------------------------
Name:
Title:
CI AGRICOLA GUACARI LTDA.
By
-----------------------------------
Name:
Title:
ALTALANOS TECHNOLOGY, INC.
By
-----------------------------------
Name:
Title:
AMERICAFLOR LTDA.
By
-----------------------------------
Name:
Title:
ASPEN INTERNATIONAL, INC.
By
-----------------------------------
Name:
Title:
BLUEWATER INDUSTRIES LIMITED
By
-----------------------------------
Name:
Title:
BOGOR CAPITAL LIMITED
By
-----------------------------------
Name:
Title:
BROOK INVESTMENT LIMITED
By
-----------------------------------
Name:
Title:
CARDANZ TECHNOLOGIES CORP.
By
-----------------------------------
Name:
Title:
COLOMBIAN CARNATIONS LTDA.
By
-----------------------------------
Name:
Title:
COMERCIALIZADORA CARIBBEAN LTDA.
By
-----------------------------------
Name:
Title:
CULTIVOS DEL CARIBE LTDA.
By
-----------------------------------
Name:
Title:
CULTIVOS SAN NICOLAS LTDA.
By
-----------------------------------
Name:
Title:
FLORAMERICA INVESTMENTS LTD.
By
-----------------------------------
Name:
Title:
FLORAMERICA LTDA.
By
-----------------------------------
Name:
Title:
FLORES ALTAMIRA LTDA.
By
-----------------------------------
Name:
Title:
XXXXXX DE EXPORTACION LTDA.
By
-----------------------------------
Name:
Title:
XXXXXX LA FRAGANCIA LTDA.
By
-----------------------------------
Name:
Title:
XXXXXX LAS PALMAS LTDA.
By
-----------------------------------
Name:
Title:
XXXXXX XXXXXXXXX, S. DE X.X. DE C.V.
By
-----------------------------------
Name:
Title:
XXXXXX MITAD DEL MUNDO LTDA
By
-----------------------------------
Name:
Title:
FLORES PRIMAVERA LTDA.
By
-----------------------------------
Name:
Title:
INVERSIONES COMERTEX, S.A.
By
-----------------------------------
Name:
Title:
JARDINES DE COLOMBIA LTDA.
By
-----------------------------------
Name:
Title:
JARDINES DE XXXXX LTDA.
By
-----------------------------------
Name:
Title:
JOROKO INTERTRADE LTD.
By
-----------------------------------
Name:
Title:
LIVERPOOL INTERNATIONAL, S.A.
By
-----------------------------------
Name:
Title:
XXXXXXXX INTERNATIONAL CORP.
By
-----------------------------------
Name:
Title:
MILANO TRADING CORPORATION
By
-----------------------------------
Name:
Title:
MONACO INVESTMENT CORP
By
-----------------------------------
Name:
Title:
NEWENT TRADING, INC.
By
-----------------------------------
Name:
Title:
NOIR VENTURES CORP.
By
-----------------------------------
Name:
Title:
XXXXXXX TECHNOLOGIES CORP.
By
-----------------------------------
Name:
Title:
OLYMPIA FLOWERS LTDA.
By
-----------------------------------
Name:
Title:
OPAL RESOURCES, LTD.
By
-----------------------------------
Name:
Title:
POLAR TRADING CORP.
By
-----------------------------------
Name:
Title:
PORCELAIN FLOWERS LTDA.
By
-----------------------------------
Name:
Title:
RIVERWOOD MANAGEMENT COMPANY INC.
By
-----------------------------------
Name:
Title:
SANTA XXXXXX XXXXXXX LTDA.
By
-----------------------------------
Name:
Title:
SPLENDOR FLOWERS LTDA.
By
-----------------------------------
Name:
Title:
SOCIEDAD AGROPECUARINA PIMOCHA C.A.
By
-----------------------------------
Name:
Title:
SOGAS, S.A.
By
-----------------------------------
Name:
Title:
SOLAMERICA, LTD.
By
-----------------------------------
Name:
Title:
SOLEIL HOLDING FRANCE S.A.
By
-----------------------------------
Name:
Title:
STANDARD FRUIT CO. (BERMUDA)
By
-----------------------------------
Name:
Title:
STANDARD FRUIT COMPANY DE
COSTA RICA S.A.
By
-----------------------------------
Name:
Title:
STANDARD FRUIT DE GUATEMALA S.A.
By
-----------------------------------
Name:
Title:
STANDARD FRUIT DE HONDURAS, S.A.
By
-----------------------------------
Name:
Title:
STANDARD FRUIT, S.A. (ARGENTINA)
By
-----------------------------------
Name:
Title:
TALLERES Y LLANTAS S.A.
By
-----------------------------------
Name:
Title:
TENICAS BALTIME DE COLOMBIA S.A.
By
-----------------------------------
Name:
Title:
TECNICOS Y ELECTRICITAS S.A.
By
-----------------------------------
Name:
Title:
THAI AMERICAN FOOD CO., LTD.
By
-----------------------------------
Name:
Title:
TINADI, S.A.
TRANSPORTES POR MAR S.A.
By
-----------------------------------
Name:
Title:
TRANSTRADING OVERSEAS, LTD
By
-----------------------------------
Name:
Title:
TROPICAL NAVIGATION (MALTA) LIMITED
By
-----------------------------------
Name:
Title:
TROPICAL SHIPPING ITALIANA, T.S.I.
By
-----------------------------------
Name:
Title:
UBESAIR, S.A.
By
-----------------------------------
Name:
Title:
UNION DE BANANEROS ECUATORIANOS, S.A.
By
-----------------------------------
Name:
Title:
VERENIGDE BANANEN HANDLELAREB N.V.
By
-----------------------------------
Name:
Title:
VIGILANCIA Y SEGIRIDAD, S.A.
By
-----------------------------------
Name:
Title:
VIUDA XX XXXXXX, X.X.
By
-----------------------------------
Name:
Title:
ZANPOTI, S.A.
By
-----------------------------------
Name:
Title:
CAMARILLO LIMITED
By
-----------------------------------
Name:
Title:
MENDOCINO LIMITED
By
-----------------------------------
Name:
Title:
XXXXXX SAN XXXXXXX LTDA.
By
-----------------------------------
Name:
Title:
ESTIBADORES DEL TROPICO
By
-----------------------------------
Name:
Title:
INTEROCEAN FINANCIAL MANAGEMENT
CORPORATION
By
-----------------------------------
Name:
Title:
INVERSIONISTA XXXXXXX X.X.
By
-----------------------------------
Name:
Title:
INVERSIONISTA XXXXXXX X.X.
By
-----------------------------------
Name:
Title:
INVERSIONISTA ZARATI, S.A.
By
-----------------------------------
Name:
Title:
BENVUE INTERNATIONAL, INC.
By
-----------------------------------
Name:
Title:
BLOCK INVESTMENTS, INC.
By
-----------------------------------
Name:
Title:
DOLE AVIATION
By
-----------------------------------
Name:
Title:
XXXX FRESH FRUIT INTERNATIONAL, INC.
By
-----------------------------------
Name:
Title:
OPERACIONES TROPICALES, S.A.
By
-----------------------------------
Name:
Title:
XXXXX CORPORATION
By
-----------------------------------
Name:
Title:
SINGLE TREE CORPORATION
By
-----------------------------------
Name:
Title:
COMERCIAL AGROFLOR S. DE X.X.
By
-----------------------------------
Name:
Title:
DELTA TREE ENTERPRISES S. DE X.X.
By
-----------------------------------
Name:
Title:
FLOWER INTERNATIONAL, S. DE X.X.
By
-----------------------------------
Name:
Title:
GALANA INTERNACIONAL, S. DE X.X.
By
-----------------------------------
Name:
Title:
IMPORTADORA Y EXPORTADORA
NOPAL, S. DE X.X.
By
-----------------------------------
Name:
Title:
IMPORTADORA Y EXPORTADORA
ROVEGO, S. DE X.X.
By
-----------------------------------
Name:
Title:
INVERSIONES CROWN, S. DE X.X.
By
-----------------------------------
Name:
Title:
INVERSIONES FLORICOLA S. DE X.X.
By
-----------------------------------
Name:
Title:
XXXXXXX INTERNATIONAL, S. DE X.X.
By
-----------------------------------
Name:
Title:
XXXXXX XXXXXXX, S. DE X.X.
By
-----------------------------------
Name:
Title:
TRIPLEJAY INVESTMENT CORP, S.A.
By
-----------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH,
Individually, and as Administrative Agent
By /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
By /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
THE BANK OF NOVA SCOTIA,
Individually, as Co-Syndication Agent and
as Joint Lead Arranger
By /s/ X. Xxx Xxxxxxxx
-----------------------------------------
Name: X. Xxx Xxxxxxxx
Title: Managing Director
BANC OF AMERICA SECURITIES LLC,
Individually, as Co-Syndication Agent and
as Joint Lead Arranger
By /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Principal
FLEET NATIONAL BANK,
Individually, and as Co-Documentation
Agent
By /s/ Xxxxxx X. XxxXxxxxxx
-----------------------------------------
Name: Xxxxxx X. XxxXxxxxxx
Title: Director
SOCIETE GENERALE,
Individually, and as Co-Documentation
Agent
By /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: G. Xxxxx Xxxxxx
Title: Vice President
BANK OF AMERICA. N.A.
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
COBANK, ACB
By /s/ S. Xxxxxxx Xxxx
-----------------------------------------
Name: S. Xxxxxxx Xxxx
Title: Vice President
COOPERATIVE CENTRALE RAFFEISEN-BOERENLEENBANK
B.A, "RABOBANK INTERNATIONAL", NEW YORK
BRANCH
By /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Executive Director
By /s/ Xxx Xxxxx
-----------------------------------------
Name: Xxx Xxxxx
Title: Managing Director
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
FORTIS CAPITAL CORP.
By /s/ Xxxx X'Xxxxxx
-----------------------------------------
Name: Xxxx X'Xxxxxx
Title: Managing Director
By /s/ Xxxxxxx Xxx
-----------------------------------------
Name: Xxxxxxx Xxx
Title: Assistant Vice President
THE GOVERNOR AND COMPANY OF
THE BANK OF IRELAND
By /s/ Xxx Xxxxx
-----------------------------------------
Name: Xxx Xxxxx
Title: Head of Acquisition Finance
BANK OF HAWAII
By /s/ Xxxx XxXxxxx
-----------------------------------------
Name: Xxxx XxXxxxx
Title: Vice President
UNITED OVERSEAS BANK LIMITED,
NEW YORK AGENCY
By /s/ Xxxxx Yew Xxxx
-----------------------------------------
Name: Xxxxx Yew Xxxx
Title: Agent & General Manager
By /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: VP & Deputy General Manager
BANK HAPOALIM B.M
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
By /s/ Xxxxx Xxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxx Xxxxx
Title: Senior Vice President &
Corporate Manager
ERSTE BANK
By /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
Erste Bank New York Branch
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: First Vice President
NATEXIS BANQUES POPULAIRES
By /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
By /s/ Xxxxxx X. van Tulder
-----------------------------------------
Name: Xxxxxx X. van Tulder
Title: Vice President and Manager
Multinational Group
FARM CREDIT WEST, PCA
By /s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
GREENSTONE FARM CREDIT SERVICES, ACA/FLCA
By /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President/Senior Lending
Officer
PINEHURST TRADING, INC.
By /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
AGFIRST FARM CREDIT BANK
By /s/ Xxxx X. Xxxxxxxx, Xx.
-----------------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Vice President
LANDMARK CDO LTD
By Aladdin Asset Management LLC
By /s/ Xxxxxx Xxxxxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxxxxx
Title: Vice President
LANDMARK II CDO LTD
By Aladdin Asset Management LLC
By /s/ Xxxxxx Xxxxxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxxxxx
Title: Vice President
NEW ALLIANCE GLOBAL CDO, LIMITED
By: Alliance Capital Management L,P.,
as Sub-advisor
By: Alliance Capital Management
Corporation, as General Partner
By /s/ Xxxx Xxxxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
CENTURION CDO II, LTD.
By: American Express Asset Management
Group Inc. as Collateral Manager
By /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
CENTURION CDO VI, LTD.
By: American Express Asset Management
Group Inc. as Collateral Manager
By /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
SEQUIIS - CENTURION V, LTD.
By: American Express Asset Management
Group Inc. as Collateral Manager
By /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
AMERICAN EXPRESS CERTIFICATE COMPANY
By: American Express Asset Management
Group Inc. as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
IDB LIFE INSURANCE COMPANY
By: American Express Asset Management
Group Inc. as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
KZH CYPRESSTREE-1 LLC
By /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH ING-2 LLC
By /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH STERLING LLC
By /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
AMMC CDO I, LIMITED
By: American Money Management Corp.,
as Collateral Manager
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
AMMC CDO II, LIMITED
By: American Money Management Corp.,
as Collateral Manager
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ANTARES CAPITAL CORPORATION
By /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Director
ARES V CLO LTD.
By: Ares CLO Management V, L.P.
Investment Manager
By: Ares CLO GP V, LLC
Its Managing Member
By /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
ARES VII CLO LTD.
By: Ares CLO Management VII, L.P.
Investment Manager
By: Ares CLO GP VII, LLC
Its General Partner
By /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
VENTURE CDO 2002, LIMITED
By its investment advisor, Barclays
Capital Asset Management Limited,
By its sub-advisor, Barclays Bank PLC,
New York Branch
By /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
VENTURE II CDO 2002, LIMITED
By its investment advisor, Barclays
Bank PLC, New York Branch
By /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
BAVARIA TRR CORPORATION
By /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Associate Director
BANK OF MONTREAL
By /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
BLACK DIAMOND CLO 1998-1, LTD.
By /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
BLACK DIAMOND CLO 2000-1, LTD.
By /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
MAGNETITE ASSET INVESTORS, LLC
MAGNETITE ASSET INVESTORS III, LLC
MAGNETITE IV CLO, LIMITED
MAGNETITE V CLO, LIMITED
BLACKROCK SENIOR LOAN TRUST
SENIOR LOAN FUND
TITANIUM CBO I, LIMITED
By /s/ X. Xxxxxxxx
-----------------------------------------
Name: X. Xxxxxxxx
Title: Managing Director
CARLYLE HIGH YIELD PARTNERS, L.P.
By /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE HIGH YIELD PARTNERS II, LTD.
By /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE HIGH YIELD PARTNERS III, LTD.
By /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE HIGH YIELD PARTNERS IV, LTD.
By /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Principal
STANWICH LOAN FUNDING LLC
By /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
TRUMBULL THC, LTD.
By /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Attorney In Fact
CITADEL HILL 2000 LTD.
By /s/ Xxxxxxxx Karristos
-----------------------------------------
Name: Xxxxxxxx X. Karristos
Title: Authorized Signatory
CITIGROUP FINANCIAL PRODUCTS INC.,
as Assignee
By /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
WINGED FOOT FUNDING TRUST
By /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
JUPITER LOAN FUNDING LLC
By /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
CONTINENTAL ASSURANCE COMPANY ON BEHALF OF
ITS SEPARATE ACCOUNT (E)
By /s/ Xxxxxxx X. XxXxxx
-----------------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Vice President
CONTINENTAL CASUALTY COMPANY
By /s/ Xxxxxxx X. XxXxxx
-----------------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Vice President
COOKSMILL
By /s/ Xxxx X.X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X.X. Xxxxxxxx
Title: Authorized Signatory
ATRIUM CDO
By /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
CSAM FUNDING I
By /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
CSAM FUNDING II
By /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
CSAM FUNDING III
By /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
XXXXXX'X ISLAND CDO, LTD
By /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx, CFA
Title: Principal
EAST WEST BANK
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
FIRST DOMINION FUNDING I
By /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
FIRST DOMINION FUNDING II
By /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
FLAGSHIP CLO II
By: Flagship Capital Management, Inc.
By /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
FLAGSHIP CLO 2000 - 1
By: Flagship Capital Management, Inc.
By /s/ Xxxx X. Xxxxx
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Director
SEMINOLE FUNDING LLC
By /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
FRANKLIN FLOATING RATE TRUST
By /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FRANKLIN FLOATING RATE MASTER SERIES
By /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FRANKLIN FLOATING RATE DAILY
ACCESS FUND
By /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FRANKLIN CLO II, LIMITED
By /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
FRANKLIN CLO III, LIMITED
By /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
FRANKLIN CLO IV, LIMITED
By /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ W. Xxxxxx XxXxxxxxx
-----------------------------------------
Name: W. Xxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
GOLDENTREE LOAN OPPORTUNITIES I, LP
By: GoldenTree Asset Management, LP
By /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
GOLDENTREE LOAN OPPORTUNITIES II, LP
By: GoldenTree Asset Management, LP
By /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
GSCP GEMINI FUND LIMITED
By: GSCP (NJ), L.P., as Collateral
Manager
By: GSCP (NJ), INC., its General Partner
By /s/ Xxx Xxxxxxxx
-----------------------------------------
Name: Xxx Xxxxxxxx
Title: Managing Director
GULF STREAM - COMPASS CLO 2002-I, LTD
By Gulf Stream Asset Management LLC
By /s/ Xxxxx X. Love
-----------------------------------------
Name: Xxxxx X. Love
Title: Chief Credit Officer
XXXXXXXX FLOATING RATE FUND, LLC
By /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
IKB CAPITAL CORPORATION
By /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President
INDOSUEZ CAPITAL FUNDING VI, LIMITED
By: Indosuez Capital as Collateral
Manager
By /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Principal and Portfolio Manager
RIVIERA FUNDING LLC
By /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
ENDURANCE CLO I, LTD.
c/o ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
BALANCED HIGH-YIELD FUND II, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
ORYX CLO, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
AERIES FINANCE-II LTD.
By: INVESCO Senior Secured Management,
Inc. as Sub-Managing Agent
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
AMARA-I FINANCE, LTD.
By: INVESCO Senior Secured Management,
Inc. as Financial Manager
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
AMARA 2 FINANCE, LTD.
By: INVESCO Senior Secured Management,
Inc. as Financial Manager
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management,
Inc. as Portfolio Advisor
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management,
Inc. as Portfolio Advisor
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIOS-1, LTD.
By: INVESCO Senior Secured Management,
Inc. as Subadvisor
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management,
Inc. as Investment Advisor
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
DIVERSIFIED CREDIT PORTFOLIO LTD.
By: INVESCO Senior Secured Management,
Inc. as Investment Advisor
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
AIM FLOATING RATE FUND
By: INVESCO Senior Secured Management,
Inc. as Attorney in fact
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
XXXXXXX XXX 0000-0 LTD.
By: INVESCO Senior Secured Management,
Inc. as Portfolio Advisor
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
INVESCO EUROPEAN CDO I S.A.
By: INVESCO Senior Secured Management,
Inc. as Collateral Manager
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
SEQUILS-LIBERTY, LTD.
By: INVESCO Senior Secured Management,
Inc. as Collateral Manager
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
SARATOGA CLO I, LIMITED
By: INVESCO Senior Secured Management,
Inc. as Asset Manager
By /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Authorized Signatory
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as
Attorney-in-fact
By /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
WHITNEY PRIVATE DEBT FUND, L.P.
By /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
LONGHORN CDO III, LTD
By: Xxxxxxx Xxxxx Investment Managers,
L.P., As Investment Advisor
By /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX CAPITAL,
a subsidiary of
Xxxxxxx Xxxxx Business Financial
Services, Inc.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX PRIME INCOME TRUST
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Director
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
NATIONWIDE MUTUAL INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Vice President -
Public Bonds
ELF FUNDING TRUST III
By: New York Life Investment Management
LLC, as attorney-in-fact
By /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Director
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By: New York Life Investment Management
LLC, its Investment Manager
By /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Director
CLYDESDALE CLO 2003-1, LTD.
By: Nomura Corporate Research and Asset
Management Inc., as Investment
Adviser
By /s/ Xxxxxxxxx XxxXxxx
-----------------------------------------
Name: Xxxxxxxxx XxxXxxx
Title: Director
CLYDESDALE CLO 2001-1, LTD.
By: Nomura Corporate Research and Asset
Management Inc., as Collateral
Manager
By /s/ Xxxxxxxxx XxxXxxx
-----------------------------------------
Name: Xxxxxxxxx XxxXxxx
Title: Director
NOMURA BOND AND LOAN FUND
By: UFJ Trust Company of New York as
Trustee
By: Nomura Corporate Research and Asset
Management Inc., Attorney In Fact
By /s/ Xxxxxxxxx XxxXxxx
-----------------------------------------
Name: Xxxxxxxxx XxxXxxx
Title: Director
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
Its General Partner
By: Oak Hill Securities MGP, Inc.,
Its General Partner
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.
Its General Partner
By: Oak Hill Securities MGP II, Inc.,
Its General Partner
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
OAK HILL CREDIT PARTNERS I, LIMITED
By: Oak Hill CLO Management I, LLC
as Investment Manager
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
OAK HILL CREDIT PARTNERS II, LIMITED
By: Oak Hill CLO Management II, LLC
as Investment Manager
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
OCTAGON INVESTMENT PARTNERS II, LLC
By: Octagon Credit Investors, LLC
as sub-investment manager
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS III, LTD.
By: Octagon Credit Investors, LLC
as Portfolio Manager
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS IV, LTD.
By: Octagon Credit Investors, LLC
as collateral manager
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS V, LTD.
By: Octagon Credit Investors, LLC
as Portfolio Manager
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Portfolio Manager
HARBOURVIEW CLO IV, LTD.,
By /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
HARBOURVIEW CLO V, LTD.,
By /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
XXXXXXXXXXX SENIOR FLOATING RATE FUND,
By /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
ORIX FINANCE CORP. I
By /s/ Xxxxxxxx X.X. Xxxxx, Xx.
------------------------------------------
Name: Xxxxxxxx X.X. Xxxxx, Xx.
Title: Authorized Representative
PPM SHADOW CREEK FUNDING LLC
By /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
PPM SPYGLASS FUNDING TRUST
By /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By /s/ Xxx X. Xxxxx
-----------------------------------------
Name: Xxx X. Xxxxx, Counsel
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx, Counsel
PROMETHEUS INVESTMENT FUNDING NO. 1 LTD.
By: HVB Credit Advisors LLC
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Associate Director
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
PROMETHEUS INVESTMENT FUNDING NO. 2 LTD.
By: HVB Credit Advisors LLC
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Associate Director
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
XXXXXX III LEVERAGED LOAN CDO 2002
By: Prudential Investment Management,
Inc., As Collateral Manager
By /s/ Xxxx Xxxx
-----------------------------------------
Name: Xxxx Xxxx
Title: Vice President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: Prudential Investment Management,
Inc., As Investment Advisor
By /s/ Xxxx Xxxx
-----------------------------------------
Name: Xxxx Xxxx
Title: Vice President
XXXXXX HIGH YIELD TRUST
By /s/ Xxxx Xxxxx
-----------------------------------------
By: Xxxx Xxxxx
Title: Vice President
XXXXXX HIGH YIELD ADVANTAGE FUND
By /s/ Xxxx Xxxxx
-----------------------------------------
By: Xxxx Xxxxx
Title: Vice President
XXXXXX MASTER INCOME TRUST
By /s/ Xxxx Xxxxx
-----------------------------------------
By: Xxxx Xxxxx
Title: Vice President
XXXXXX MASTER INTERMEDIATE INCOME TRUST
By /s/ Xxxx Xxxxx
-----------------------------------------
By: Xxxx Xxxxx
Title: Vice President
XXXXXX PREMIER INCOME TRUST
By /s/ Xxxx Xxxxx
-----------------------------------------
By: Xxxx Xxxxx
Title: Vice President
XXXXXX VARIABLE TRUST - PVT HIGH YIELD FUND
By /s/ Xxxx Xxxxx
-----------------------------------------
By: Xxxx Xxxxx
Title: Vice President
XXXXXX DIVERSIFIED INCOME TRUST
By /s/ Xxxx Xxxxx
-----------------------------------------
By: Xxxx Xxxxx
Title: Vice President
XXXXXX VARIABLE TRUST - PVT DIVERSIFIED
INCOME FUND
By /s/ Xxxx Xxxxx
-----------------------------------------
By: Xxxx Xxxxx
Title: Vice President
SEQUILS-GLACE BAY, LTD.
By: Royal Bank of Canada
as Collateral Manager
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Partner
GALAXY CLO 2003-1 LTD.
By: CIBC Inc., as Agent
By /s/ Xxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Authorized Signatory
KZH RIVERSIDE LLC
By /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH SOLEIL LLC
By /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH SOLEIL-2 LLC
By /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH WATERSIDE LLC
By /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
SEABOARD CLO 2000 LTD.
By: ORIX Capital Markets, LLC
Its Collateral Manager
By /s/ Xxxxxxxx X.X. Xxxxx, Xx.
-----------------------------------------
Name: Xxxxxxxx X.X. Xxxxx, Xx.
Title: Managing Director
SENECA CBO III, LIMITED
By: Seneca Capital Management LLC
as Portfolio Manager for Seneca CBO
III, Limited
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Officer/Analyst
SENECA CBO IV, LIMITED
By: Seneca Capital Management LLC
as Portfolio Manager for Seneca
CBO IV, Limited
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Officer/Analyst
SUNAMERICA LIFE INSURANCE COMPANY
By /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
GALAXY CLO 1999-1, LTD.
By /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
XXXXXXXXX ARBITRAGE CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
WINDSOR LAON FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC
As its Investment Manager
By /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXXXXXX QUATTRO CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXXXXX CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
XXXXXXXXX CARRERA CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
As its Collateral Manager
By /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
SUNAMERICA SENIOR FLOATING RATE FUND INC.
By: Xxxxxxxxx Capital Partners LLC
As subadvisor
By /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
TORONTO DOMINION (NEW YORK), INC.
By /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY
By /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Executive Director
XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx Investment Advisory Corp.
As Collateral Manager
By /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Executive Director
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Executive Director
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Executive Director
WACHOVIA BANK, N.A.
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
Exhibit A-1
FORM OF NOTICE OF BORROWING
Deutsche Bank AG New York Branch, as Administrative Agent
(the "Administrative Agent") for the Lenders
party to the Credit Agreement referred to below
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx-Xxxxxxxx
Ladies and Gentlemen:
The undersigned, [Xxxx Food Company, Inc.](1) [Solvest,
Ltd.](2) (the "Borrower"), refers to the Credit Agreement, dated as of March 28,
2003 (as amended, restated, modified and/or supplemented from time to time, the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among DHM Holding Company, Inc. ("Holdings"), the Borrower, [Xxxx Food
Company, Inc.] [Solvest, Ltd.], the lenders from time to time party thereto, The
Bank of Nova Scotia and Banc of America Securities LLC, as Co-Syndication
Agents, Fleet National Bank and Societe Generale, as Co-Documentation Agents,
Deutsche Bank Securities Inc., The Bank of Nova Scotia and Banc of America
Securities LLC, as Joint Lead Arrangers and Book Runners, and you, as
Administrative Agent, and hereby gives you notice, irrevocably, pursuant to
Section 1.03(a) of the Credit Agreement, that the undersigned hereby requests a
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Borrowing (the "Proposed Borrowing") as
required by Section 1.03(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is [______ __,
_____].
(ii) The Proposed Borrowing shall consist of [Tranche A Term
Loans] [Tranche B Term Loans] [U.S. Borrower Multicurrency Facility
Revolving Loans] [Bermuda Borrower Multicurrency Facility Revolving
Loans] [U.S. Borrower Dollar Facility Revolving Loans] [Bermuda
Borrower Dollar Facility Revolving Loans] [U.S. Borrower
(1) To be included for a Proposed Borrowing of Tranche A Term Loans, U.S.
Borrower Multicurrency Facility Revolving Loans, U.S. Borrower
Multicurrency Facility Swingline Loans, U.S. Borrower Dollar Facility
Revolving Loans or U.S. Borrower Dollar Facility Swingline Loans.
(2) To be included for a Proposed Borrowing of Tranche B Term Loans,
Bermuda Borrower Multicurrency Facility Revolving Loans, Bermuda
Borrower Multicurrency Facility Swingline Loans, Bermuda Borrower
Dollar Facility Revolving Loans or Bermuda Borrower Dollar Facility
Swingline Loans.
Exhibit A-1
Page 2
Multicurrency Facility Swingline Loans] [Bermuda Borrower Multicurrency
Facility Swingline Loans] [U.S. Borrower Dollar Facility Swingline
Loans] [Bermuda Borrower Dollar Facility Swingline Loans].
(iii) The aggregate principal amount of the Proposed Borrowing
is [__________].(3)
(iv) The Loans to be made pursuant to the Proposed Borrowing
shall be initially maintained as [Base Rate Loans] [Eurodollar Loans]
[Euro Denominated Revolving Loans] [Euro Denominated Swingline
Loans].(4)
[(v) The initial Interest Period for the Proposed Borrowing is
[one week] [one month] [two months] [three months] [six months] [,
subject to availability to all Lender which are required to make Loans
of the respective Tranche, [[nine] [twelve] months], and if such
Interest Period is unavailable [specify alternate desired]].](5)
(vi) The location and number of the Borrower's account to
which funds are to be disbursed is:
(3) Stated in the relevant Available Currency.
(4) To be included for each Proposed Borrowing; provided that (i) Euro
Denominated Revolving Loans may only be selected for Proposed
Borrowings of Multicurrency Facility Revolving Loans, (ii) Euro
Denominated Swingline Loans may only be selected for Proposed
Borrowings of Multicurrency Facility Swingline Loans, and (iii) each
Proposed Borrowing of U.S. Borrower Dollar Facility Swingline Loans and
Bermuda Borrower Dollar Facility Swingline Loans may only be maintained
Base Rate Loans.
(5) To be included for a Proposed Borrowing of Euro Rate Loans (other than
Euro Denominated Swingline Loans). Unless the Syndication Date has
theretofore occurred, (i) prior to the 90th day after the Initial
Borrowing Date (or, if later, the last day of the third month following
the initial Borrowing of such Euro Rate Loans), Term Loans and
Revolving Loans to be maintained as Eurodollar Loans may be incurred no
earlier than the third Business Day, and no later than the fifth
Business Day, after the Initial Borrowing Date and on each one month
anniversary of the initial date of Borrowing of such Eurodollar Loans
and (ii) prior to the 90th day after the Initial Borrowing Date, an
Interest Period of one-week must be selected for a Proposed Borrowing
of Euro Denominated Revolving Loans. An Interest Period of one-week may
only be selected in the case of a Borrowing of Multicurrency Facility
Revolving Loans denominated in Euros. Interest Periods of nine and
twelve months may only be selected in the case of a Borrowing of
Eurodollar Loans and if such Interest Period is available to all the
Lenders.
Exhibit A-1
Page 3
Bank Name:[ ]
ABA#:[ ]
A/C Name: [ ]
A/C#: [ ]
The undersigned hereby certify(ies) that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in the Credit
Agreement or the other Credit Documents are and will be true and
correct in all material respects, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds thereof, as
though made on such date, unless stated to relate to a specific earlier
date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date; and
(B) no Default or Event of Default has occurred and is
continuing, or would result from such Proposed Borrowing or from the
application of the proceeds thereof, in each case immediately after
giving effect thereto.
Very truly yours,
[XXXX FOOD COMPANY, INC.]
[SOLVEST, LTD.]
By
---------------------------
Name:
Title:
EXHIBIT A-2
NOTICE OF CONVERSION/CONTINUATION
[Date]
Deutsche Bank AG New York Branch, as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx-Xxxxxxxx
Ladies and Gentlemen:
The undersigned, [Xxxx Food Company, Inc.] [Solvest, Ltd.]
(the "Borrower"), refers to the Credit Agreement, dated as of March 28, 2003 (as
amended, modified, restated and/or supplemented from time to time, the "Credit
Agreement," the terms defined therein being used herein as therein defined),
among DHM Holding Company, Inc., Xxxx Food Company, Inc., Solvest, Ltd., the
lenders from time to time party thereto (the "Lenders"), and you, as
Administrative Agent for such Lenders, and hereby give you notice, irrevocably,
pursuant to Section [1.06] [1.09] of the Credit Agreement, that the undersigned
hereby requests to [convert] [continue] the Borrowing of [Tranche A Term Loans]
[Tranche B Term Loans] [Revolving Loans] referred to below, and in that
connection sets forth below the information relating to such [conversion]
[continuation] (the "Proposed [Conversion] [Continuation]") as required by
Section [1.06] [1.09] of the Credit Agreement:
(i) The Proposed [Conversion] [Continuation] relates to the
Borrowing of [Tranche A Term Loans] [Tranche B Term Loans] [U.S. Borrower Dollar
Facility Revolving Loans] [Bermuda Borrower Dollar Facility Revolving Loans]
[U.S. Borrower Multicurrency Facility Revolving Loans] [Bermuda Borrower
Multicurrency Facility Revolving Loans] denominated in [Dollars] [Euros]]
originally made on _____ __, 20__ (the "Outstanding Borrowing") in the principal
amount of ________(1) and currently maintained as a Borrowing of [Base Rate
Loans] [Eurodollar Loans with an Interest Period ending on _____ __, ____] [Euro
Rate Loans with an Interest Period ending on _____ __, ____].
(1) State in the applicable currency.
Exhibit A-2
Page 2
(ii) The Business Day of the Proposed [Conversion]
[Continuation] is ____________.(2)
(iii) The Outstanding Borrowing shall be [continued as a
Borrowing of Eurodollar Loans with an Interest Period of _______] [continued as
a Borrowing of Euro Denominated Revolving Loans with an Interest Period of _____
] [converted into a Borrowing of [Base Rate Loans] [Eurodollar Loans with an
Interest Period of ___]].(3)
[The undersigned hereby certifies that no Default or Event of
Default has occurred and is continuing on the date hereof or will have occurred
and be continuing on the date of the Proposed [Conversion] [Continuation].](4)
Very truly yours,
[XXXX FOOD COMPANY, INC.]
[SOLVEST, LTD.]
By:
-----------------------------------------
Name:
Title:
(2) Shall be a Business Day at least three Business Days after the date
hereof, provided that such notice shall be deemed to have been given on
a certain day only if given before 12:00 Noon (New York time) on such
day.
(3) In the event that either (x) only a portion of the Outstanding
Borrowing is to be so converted or continued or (y) the Outstanding
Borrowing is to be divided into separate Borrowings with different
Interest Periods, the Borrower should make appropriate modifications to
this clause to reflect same.
(4) In the case of a Proposed Conversion or Continuation, insert this
sentence only in the event that the conversion is from a Base Rate Loan
to a Eurodollar Loan or in the case of a continuation of a Eurodollar
Loan. Until Administrative Agent has determined that the Syndication
Date has occurred, outstanding Euro Denominated Revolving Loans may be
only be maintained as a Euro Rate Loan with a one month Interest
Period.
EXHIBIT B-3A
FORM OF U.S. BORROWER MULTICURRENCY FACILITY REVOLVING NOTE
$____________ New York, New York
___________, _____
FOR VALUE RECEIVED, XXXX FOOD COMPANY, INC., a Delaware
corporation (the "U.S. Borrower"), hereby promises to pay to the order of
________ or its registered assigns (the "Lender"), in lawful money of the United
States of America (or, in the case of Euro Denominated Revolving Loans (as
defined in the Agreement referred to below) evidenced hereby, Euros (as defined
in the Agreement) except to the extent payments are otherwise required to be
made in Dollars in accordance with the provisions of Section 1.14 of the
Agreement) in immediately available funds, at the Payment Office (as defined in
the Agreement) on the Revolving Loan Maturity Date (as defined in the Agreement)
the principal sum of __________ DOLLARS ($_____) or, if less, the unpaid
principal amount of all U.S. Borrower Multicurrency Facility Revolving Loans (as
defined in the Agreement) made by the Lender pursuant to the Agreement, provided
that, notwithstanding the fact that the principal amount of this Note is
denominated in Dollars, to the extent provided in the Agreement, all payments
hereunder with respect to Euro Denominated Revolving Loans evidenced hereby
shall be made in Euros (except to the extent otherwise provided by Section 1.14
of the Agreement), whether or not the Dollar Equivalent (as defined in the
Agreement) of such amounts, when added to the outstanding principal amount of
the Dollar Denominated Revolving Loans (as defined in the Agreement) evidenced
hereby, would exceed the stated principal amount of this Note.
The U.S. Borrower also promises to pay interest on the unpaid
principal amount of each U.S. Borrower Multicurrency Facility Revolving Loan
made by the Lender in like money at said office from the date hereof until paid
at the rates and at the times provided in Section 1.08 of the Agreement. All
payments pursuant to this Note shall be made in accordance with the requirements
of Sections 4.03 and 4.04 of the Agreement.
This Note is one of the U.S. Borrower Multicurrency Facility
Revolving Notes referred to in the Credit Agreement, dated as of March 28, 2003
(as amended, restated, modified and/or supplemented from time to time, the
"Agreement"), among DHM Holding Company, Inc., the U.S. Borrower, Solvest, Ltd.,
the lenders from time to time party thereto (including the Lender), Deutsche
Bank AG New York Branch, as Administrative Agent, The Bank of Nova Scotia and
Banc of America Securities LLC, as Co-Syndication Agents, Fleet National Bank
and Societe Generale, as Co-Documentation Agents, and Deutsche Bank Securities
Inc., The Bank of Nova Scotia and Banc of America Securities LLC, as Joint Lead
Arrangers and Book Runners, and is entitled to the benefits thereof and of the
other Credit Documents (as defined in the Agreement). This Note is secured by
the Security Documents (as defined in the Agreement) and is entitled to the
benefits of the Guaranties (as defined in the Agreement). This Note is subject
to voluntary prepayment and mandatory repayment prior to the Revolving Loan
Maturity Date, in whole or in part, as provided in the Agreement.
Exhibit B-3A
Page 2
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may be declared to be due and payable in the manner and with the effect
provided in the Agreement.
The U.S. Borrower hereby waives presentment, demand, protest
or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
XXXX FOOD COMPANY, INC.
By
---------------------------
Name:
Title:
EXHIBIT B-3B
FORM OF BERMUDA BORROWER MULTICURRENCY FACILITY REVOLVING NOTE
$ New York, New York
___________ ____________, ____
FOR VALUE RECEIVED, SOLVEST, LTD., a corporation organized
under the laws of Bermuda (the "Bermuda Borrower"), hereby promises to pay to
the order of ________ or its registered assigns (the "Lender"), in lawful money
of the United States of America (or, in the case of Euro Denominated Revolving
Loans (as defined in the Agreement referred to below) evidenced hereby, Euros
(as defined in the Agreement) except to the extent payments are otherwise
required to be made in Dollars in accordance with the provisions of Section 1.14
of the Agreement) in immediately available funds, at the Payment Office (as
defined in the Agreement) on the Revolving Loan Maturity Date (as defined in the
Agreement) the principal sum of __________ DOLLARS ($_____) or, if less, the
unpaid principal amount of all Bermuda Borrower Multicurrency Facility Revolving
Loans (as defined in the Agreement) made by the Lender pursuant to the
Agreement, provided that, notwithstanding the fact that the principal amount of
this Note is denominated in Dollars, to the extent provided in the Agreement,
all payments hereunder with respect to Euro Denominated Revolving Loans
evidenced hereby shall be made in Euros (except to the extent otherwise provided
by Section 1.14 of the Agreement), whether or not the Dollar Equivalent (as
defined in the Agreement) of such amounts, when added to the outstanding
principal amount of the Dollar Denominated Revolving Loans (as defined in the
Agreement) evidenced hereby, would exceed the stated principal amount of this
Note.
The Bermuda Borrower also promises to pay interest on the
unpaid principal amount of each Bermuda Borrower Multicurrency Facility
Revolving Loan made by the Lender in like money at said office from the date
hereof until paid at the rates and at the times provided in Section 1.08 of the
Agreement. All payments pursuant to this Note shall be made in accordance with
the requirements of Sections 4.03 and 4.04 of the Agreement.
This Note is one of the Bermuda Borrower Multicurrency
Facility Revolving Notes referred to in the Credit Agreement, dated as of March
28, 2003 (as amended, restated, modified and/or supplemented from time to time,
the "Agreement"), among DHM Holding Company, Inc., Xxxx Food Company, Inc., the
Bermuda Borrower, the lenders from time to time party thereto (including the
Lender), Deutsche Bank AG New York Branch, as Administrative Agent, The Bank of
Nova Scotia and Banc of America Securities LLC, as Co-Syndication Agents, Fleet
National Bank and Societe Generale, as Co-Documentation Agents, and Deutsche
Bank Securities Inc., The Bank of Nova Scotia and Banc of America Securities
LLC, as Joint Lead Arrangers and Book Runners, and is entitled to the benefits
thereof and of the other Credit Documents (as defined in the Agreement). This
Note is secured by the Security Documents (as defined in the Agreement) and is
entitled to the benefits of the Guaranties (as defined in the Agreement). This
Note is subject to voluntary prepayment and mandatory repayment prior to the
Revolving Loan Maturity Date, in whole or in part, as provided in the Agreement.
Exhibit B-3B
Page 2
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may be declared to be due and payable in the manner and with the effect
provided in the Agreement.
The Bermuda Borrower hereby waives presentment, demand,
protest or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SOLVEST, LTD.
By
------------------------------
Name:
Title:
EXHIBIT B-6A
FORM OF U.S. BORROWER MULTICURRENCY FACILITY SWINGLINE NOTE
$__________________ New York, New York
___________, _____
FOR VALUE RECEIVED, XXXX FOOD COMPANY, INC., a Delaware
corporation (the "U.S. Borrower"), hereby promises to pay to the order of
DEUTSCHE BANK AG NEW YORK BRANCH or its registered assigns (the "Lender"), in
lawful money of the United States of America (or, in the case of Euro
Denominated Swingline Loans (as defined in the Agreement referred to below)
evidenced hereby, in Euros (as defined in the Agreement) except to the extent
payments are otherwise required to be made in Dollars in accordance with the
provisions of Section 1.14 of the Agreement) in immediately available funds, at
the Payment Office (as defined in the Agreement) on the Swingline Expiry Date
(as defined in the Agreement) the principal sum of ____________ DOLLARS ($_____)
or, if less, the unpaid principal amount of all U.S. Borrower Multicurrency
Facility Swingline Loans (as defined in the Agreement) made by the Lender
pursuant to the Agreement, provided that, notwithstanding the fact that the
principal amount of this Note is denominated in Dollars, to the extent provided
in the Agreement, all payments hereunder with respect to Euro Denominated
Swingline Loans evidenced hereby shall be made in Euros (except to the extent
otherwise provided by Section 1.14 of the Agreement), whether or not the Dollar
Equivalent (as defined in the Agreement) of such amounts, when added to the
outstanding principal amount of the Dollar Denominated Swingline Loans (as
defined in the Agreement) evidenced hereby, would exceed the stated principal
amount of this Note.
The U.S. Borrower also promises to pay interest on the unpaid
principal amount of each U.S. Borrower Multicurrency Facility Swingline Loan
made by the Lender in like money at said office from the date hereof until paid
at the rates and at the times provided in Section 1.08 of the Agreement. All
payments pursuant to this Note shall be made in accordance with the requirements
of Sections 4.03 and 4.04 of the Agreement.
This Note is the U.S. Borrower Multicurrency Facility
Swingline Note referred to in the Credit Agreement, dated as of March 28, 2003
(as amended, restated, modified and/or supplemented from time to time, the
"Agreement"), among DHM Holding Company, Inc., the U.S. Borrower, Solvest, Ltd.,
the lenders from time to time party thereto (including the Lender), Deutsche
Bank AG New York Branch, as Administrative Agent, The Bank of Nova Scotia and
Banc of America Securities LLC, as Co-Syndication Agents, Fleet National Bank
and Societe Generale, as Co-Documentation Agents, and Deutsche Bank Securities
Inc., The Bank of Nova Scotia and Banc of America Securities LLC, as Joint Lead
Arrangers and Book Runners, and is entitled to the benefits thereof and of the
other Credit Documents (as defined in the Agreement). This Note is secured by
the Security Documents (as defined in the Agreement) and is entitled to the
benefits of the Guaranties (as defined in the Agreement). This Note is subject
to voluntary prepayment and mandatory repayment prior to the Swingline Expiry
Date, in whole or in part, as provided in the Agreement.
Exhibit B-6A
Page 2
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may be declared to be due and payable in the manner and with the effect
provided in the Agreement.
The U.S. Borrower hereby waives presentment, demand, protest
or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
XXXX FOOD COMPANY, INC.
By
-----------------------------------
Name:
Title:
EXHIBIT B-6B
FORM OF BERMUDA BORROWER MULTICURRENCY FACILITY SWINGLINE NOTE
$____________ New York, New York
___________, _____
FOR VALUE RECEIVED, SOLVEST, LTD., a corporation organized
under the laws of Bermuda (the "Bermuda Borrower"), hereby promises to pay to
the order of DEUTSCHE BANK AG NEW YORK BRANCH or its registered assigns (the
"Lender"), in lawful money of the United States of America (or, in the case of
Euro Denominated Swingline Loans (as defined in the Agreement referred to below)
evidenced hereby, in Euros (as defined in the Agreement) except to the extent
payments are otherwise required to be made in Dollars in accordance with the
provisions of Section 1.14 of the Agreement) in immediately available funds, at
the Payment Office (as defined in the Agreement) on the Swingline Expiry Date
(as defined in the Agreement) the principal sum of ____________ DOLLARS ($_____)
or, if less, the unpaid principal amount of all Bermuda Borrower Multicurrency
Facility Swingline Loans (as defined in the Agreement) made by the Lender
pursuant to the Agreement, provided that, notwithstanding the fact that the
principal amount of this Note is denominated in Dollars, to the extent provided
in the Agreement, all payments hereunder with respect to Euro Denominated
Swingline Loans evidenced hereby shall be made in Euros (except to the extent
otherwise provided by Section 1.14 of the Agreement), whether or not the Dollar
Equivalent (as defined in the Agreement) of such amounts, when added to the
outstanding principal amount of the Dollar Denominated Swingline Loans (as
defined in the Agreement) evidenced hereby, would exceed the stated principal
amount of this Note.
The Bermuda Borrower also promises to pay interest on the
unpaid principal amount of each Bermuda Borrower Multicurrency Facility
Swingline Loan made by the Lender in like money at said office from the date
hereof until paid at the rates and at the times provided in Section 1.08 of the
Agreement. All payments pursuant to this Note shall be made in accordance with
the requirements of Sections 4.03 and 4.04 of the Agreement.
This Note is the Bermuda Borrower Multicurrency Facility
Swingline Note referred to in the Credit Agreement, dated as of March 28, 2003
(as amended, restated, modified and/or supplemented from time to time, the
"Agreement"), among DHM Holding Company, Inc., Xxxx Food Company, Inc., the
Bermuda Borrower, the lenders from time to time party thereto (including the
Lender), Deutsche Bank AG New York Branch, as Administrative Agent, The Bank of
Nova Scotia and Banc of America Securities LLC, as Co-Syndication Agents, Fleet
National Bank and Societe Generale, as Co-Documentation Agents, and Deutsche
Bank Securities Inc., The Bank of Nova Scotia and Banc of America Securities
LLC, as Joint Lead Arrangers and Book Runners, and is entitled to the benefits
thereof and of the other Credit Documents (as defined in the Agreement). This
Note is secured by the Security Documents (as defined in the Agreement) and is
entitled to the benefits of the Guaranties (as defined in the Agreement). This
Note is subject to voluntary prepayment and mandatory repayment prior to the
Swingline Expiry Date, in whole or in part, as provided in the Agreement.
Exhibit B-6B
Page 2
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Note may be declared to be due and payable in the manner and with the effect
provided in the Agreement.
The Bermuda Borrower hereby waives presentment, demand,
protest or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SOLVEST, LTD.
By
---------------------------------
Name:
Title:
EXHIBIT C-1
LETTER OF CREDIT REQUEST
No. (1) Dated (2)
Deutsche Bank AG New York Branch, [as Issuing Lender and] as Administrative
Agent under the Credit Agreement, dated as of March 28, 2003, among DHM
Holding Company, Inc., Xxxx Food Company, Inc., Solvest, Ltd., the lenders
from time to time party thereto (the "Lenders"), Deutsche Bank AG New York
Branch, as Administrative Agent, The Bank of Nova Scotia and Banc of America
Securities LLC, as Co-Syndication Agents, Fleet National Bank and Societe
Generale, as Co-Documentation Agents, and Deutsche Bank Securities Inc., The
Bank of Nova Scotia and Banc of America Securities LLC, as Joint Lead
Arrangers and Book Runners (as amended, restated, modified and/or
supplemented from time to time, the "Credit Agreement")
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
[[____________________, as Issuing Lender
under the Credit Agreement
--------------------
--------------------
](3)
--------------------
Dear Sirs:
Pursuant to Section 2A.03 of the Credit Agreement, we hereby
request that the Issuing Lender referred to above issue a [Trade] [Standby]
Letter of Credit for the account of the
(1) Letter of Credit Request Number.
(2) Date of Letter of Credit Request.
(3) Insert name and address of Issuing Lender in the case of a Letter of
Credit Request to any Issuing Lender other than Deutsche Bank AG New
York Branch.
Exhibit C-1
Page 2
undersigned on (4) (the "Date of Issuance") in the aggregate Stated Amount of
(5). The requested Letter of Credit shall be denominated in (6) and shall be a
[U.S. Borrower Multicurrency] [Bermuda Borrower Multicurrency] [U.S. Borrower
Dollar] [Bermuda Borrower Dollar](7) Facility Letter of Credit for all purposes
of the Credit Agreement.
For purposes of this Letter of Credit Request, unless
otherwise defined herein, all capitalized terms used herein which are defined in
the Credit Agreement shall have the respective meaning provided therein.
The beneficiary of the requested Letter of Credit will be (8),
and such Letter of Credit will be in support of (9) and will have a stated
expiration date of (10).
We hereby certify that:
(4) Date of Issuance which shall be (x) a Business Day and (y) at least 3
Business Days from the date hereof (or such shorter period as may be
acceptable to the respective Issuing Lender in any given case).
(5) Insert aggregate initial Stated Amount of Letter of Credit (in the
Available Currency specified in footnote 6) which shall not be less
than (x) in the case of a Dollar Denominated Letter of Credit,
[$100,000] and (y) in the case of a Euro Denominated Letter of Credit,
[E100,000] (or, in each case, such lesser amount as is acceptable
to the respective Issuing Lender).
(6) Insert applicable Available Currency.
(7) Each requested Letter of Credit shall constitute either a U.S. Borrower
Multicurrency Facility Letter of Credit, a Bermuda Borrower
Multicurrency Facility Letter of Credit, a U.S. Borrower Dollar
Facility Letter of Credit or a Bermuda Borrower Dollar Facility Letter
of Credit, provided that (x) Multicurrency Facility Letters of Credit
shall be made available in Dollars or Euros and shall be issued for the
account of the U.S. Borrower or the Bermuda Borrower and (y) Dollar
Facility Letters of Credit shall be made available only in Dollars and
shall be issued for the account of the U.S. Borrower or the Bermuda
Borrower.
(8) Insert name and address of beneficiary.
(9) Insert description of L/C Supportable Indebtedness (in the case of
Standby Letters of Credit) and insert description of permitted trade
obligations (in the case of Trade Letters of Credit).
(10) Insert the last date upon which drafts may be presented which may not
be later than (i) in the case of Standby Letters of Credit, the earlier
of (x) 12 months after the Date of Issuance and (y) the fifth Business
Day preceding the Revolving Loan Maturity Date and (ii) in the case of
Trade Letters of Credit, the earlier of (x) 180 days after the Date of
Issuance and (y) 30 days prior to the Revolving Loan Maturity Date.
Exhibit C-1
Page 3
(1) The representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and correct in
all material respects on the Date of Issuance, both before and after giving
effect to the issuance of the Letter of Credit requested hereby (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date).
(2) No Default or Event of Default has occurred and is
continuing nor, after giving effect to the issuance of the Letter of Credit
requested hereby, would such a Default or an Event of Default occur.
Copies of all documentation with respect to the supported
transaction are attached hereto.
[XXXX FOOD COMPANY, INC.]
[SOLVEST, LTD.]
By
----------------------------------------
Name:
Title:
Exhibit C-2
BANK GUARANTY REQUEST
No. (1) Dated (2)
Deutsche Bank AG New York Branch, [as Bank Guaranty Issuer and] as
Administrative Agent under the Credit Agreement, dated as of March 28, 2003,
among DHM Holding Company, Inc., Xxxx Food Company, Inc., Solvest, Ltd., the
lenders from time to time party thereto (the "Lenders"), Deutsche Bank AG
New York Branch, as Administrative Agent, The Bank of Nova Scotia and Banc
of America Securities LLC, as Co-Syndication Agents, Fleet National Bank and
Societe Generale, as Co-Documentation Agents, and Deutsche Bank Securities
Inc., The Bank of Nova Scotia and Banc of America Securities LLC, as Joint
Lead Arrangers and Book Runners (as amended, restated, modified and/or
supplemented from time to time, the "Credit Agreement")
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
[[____________________, as Bank Guaranty Issuer
under the Credit Agreement
--------------------------
--------------------------
____________________](3)
Dear Sirs:
(1) Bank Guaranty Request Number.
(2) Date of Bank Guaranty Request.
(3) Insert name and address of Bank Guaranty Issuer in the case of a Bank
Guaranty Request to any Bank Guaranty Issuer other than Deutsche Bank AG
New York Branch.
Exhibit C-2
Page 2
Pursuant to Section 2B.03 of the Credit Agreement, we hereby
request that the Bank Guaranty Issuer referred to above issue a Bank Guaranty
for the account of the undersigned on (4) (the "Date of Issuance") in the
aggregate Face Amount of (5). The requested Bank Guaranty shall be denominated
in (6) and shall be a [U.S. Borrower] [Bermuda Borrower]7 Bank Guaranty for all
purposes of the Credit Agreement.
For purposes of this Bank Guaranty Request, unless otherwise
defined herein, all capitalized terms used herein which are defined in the
Credit Agreement shall have the respective meaning provided therein.
The beneficiary of the requested Bank Guaranty will be (8),
and such Bank Guaranty will be in support of (9) and will have a stated
expiration date of (10).
We hereby certify that:
(1) The representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and correct in
all material respects on the Date of Issuance, both before and after giving
effect to the issuance of the Bank Guaranty requested hereby (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date).
(4) Date of Issuance which shall be (x) a Business Day and (y) at least 3
Business Days from the date hereof (or such shorter period as may be
acceptable to the respective Bank Guaranty Issuer in any given case).
(5) Insert aggregate initial Face Amount of Bank Guaranty (in the Available
Currency specified in footnote 6) which shall not be less than (x) in the
case of a Dollar Denominated Bank Guaranty, $250,000 and (y) in the case of
a Euro Denominated Bank Guaranty, E250,000 (or, in each case, such lesser
amount as is acceptable to the respective Bank Guaranty Issuer).
(6) Insert applicable Available Currency.
(7) Each requested Bank Guaranty shall constitute either a U.S. Borrower Bank
Guaranty (if issued for the account of the U.S. Borrower) or a Bermuda
Borrower Bank Guaranty (if issued for the account of the Bermuda Borrower).
(8) Insert name and address of beneficiary.
(9) Insert description of B/G Supportable Indebtedness.
(10) Insert the last date upon which drafts may be presented which may not be
later than, the earlier of (x) 12 months after the Date of Issuance and (y)
the fifth Business Day preceding the Revolving Loan Maturity Date.
Exhibit C-2
Page 3
(2) No Default or Event of Default has occurred and is
continuing nor, after giving effect to the issuance of the Bank Guaranty
requested hereby, would such a Default or an Event of Default occur.
Copies of all documentation with respect to the supported
transaction are attached hereto.
[XXXX FOOD COMPANY, INC.]
[SOLVEST, LTD.]
By
--------------------------------
Name:
Title:
EXHIBIT K
FORM OF ASSIGNMENT
AND
ASSUMPTION AGREEMENT(1)
This Assignment and Assumption Agreement (this "Assignment"),
is dated as of the Effective Date set forth below and is entered into by and
between [the][each] Assignor identified in item [1][2] below ([the] [each, an]
"Assignor") and [the] [each] Assignee identified in item 2 below ([the] [each,
an] "Assignee"). [It is understood and agreed that the rights and obligations of
such [Assignees][and Assignors] hereunder are several and not joint.]
Capitalized terms used herein but not defined herein shall have the meanings
given to them in the Credit Agreement identified below (as amended, restated,
supplemented and/or otherwise modified from time to time, the "Credit
Agreement"). The Standard Terms and Conditions for Assignment and Assumption
Agreement set forth in Annex 1 hereto (the "Standard Terms and Conditions") are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby
irrevocably sells and assigns to [the] [each] Assignee, and [the] [each]
Assignee hereby irrevocably purchases and assumes from [the][each] Assignor,
subject to and in accordance with the Standard Terms and Conditions and the
Credit Agreement, as of the Effective Date inserted by the Administrative Agent
as contemplated below, the interest in and to all of [the][each] Assignor's
rights and obligations under the Credit Agreement and any other documents or
instruments delivered pursuant thereto that represents the amount and percentage
interest identified below of all of the [respective] Assignor's outstanding
rights and obligations under the respective Tranches identified below
(including, to the extent included in any such Tranches, Letters of Credit, Bank
Guaranties and Swingline Loans) ([the] [each, an] "Assigned Interest"). [Each]
[Such] sale and assignment is without recourse to [the][any] Assignor and,
except as expressly provided in this Assignment, without representation or
warranty by [the][any] Assignor.
[1. Assignor:
-----------------------------------
2. Assignee: ](2)
-----------------------------------
[1][3]. Credit Agreement: Credit Agreement, dated as of March 28, 2003, among
DHM Holding Company, Inc. ("Holdings"), Xxxx Food
Company, Inc. (the "U.S. Borrower"), Solvest, Ltd.
(the "Bermuda Borrower"),
(1) This Form of Assignment and Assumption Agreement should be used by
Lenders for an assignment to a single Assignee or to funds managed by the
same or related investment managers.
(2) If the form is used for a single Assignor and Assignee, items 1 and 2
should list the Assignor and the Assignee, respectively. In the case of
an assignment to funds managed by the same or related investment
managers, or an assignment by multiple Assignors, the Assignors and the
Assignee(s) should be listed in the table under bracketed item 2 below.
Exhibit K
Page 2
the lenders from time to time party thereto,
Deutsche Bank AG New York Branch, as Administrative
Agent, The Bank of Nova Scotia and Banc of America
Securities LLC, as Co-Syndication Agents, Fleet
National Bank and Societe Generale, as
Co-Documentation Agents, and Deutsche Bank
Securities Inc., The Bank of Nova Scotia and Banc of
America Securities LLC, as Joint Lead Arrangers and
Book Runners.
[2. Assigned Interest:(3)
Aggregate Amount of Amount of
Commitment/Loans under Commitment/Loans Percentage of Assigned
Tranche Relevant Tranche under Relevant Commitment/Loans under
Assignor Assignee Assigned(4) for all Lenders Tranche Assigned Relevant Tranche(5)
-------- -------- ----------- ---------------------- ---------------- -----------------------
[Name of [Name of
Assignor] Assignee] __________ __________ __________%
[Name of [Name of
Assignor] Assignee] __________ __________ __________%]
(3) Insert this chart if this Form of Assignment and Assumption Agreement is
being used for assignments to funds managed by the same or related
investment managers or for an assignment by multiple Assignors. Insert
additional rows as needed.
(4) For complex multi-tranche assignments a separate chart for each tranche
should be used for ease of reference.
(5) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder for the respective Tranche.
Exhibit K
Page 3
[4. Assigned Interest:(6)
Aggregate Amount of
Commitment/Loans Amount of Percentage of Assigned
under Relevant Commitment/Loans under Commitment/Loans under
Tranche Assigned Tranche for all Lenders Relevant Tranche Assigned Relevant Tranche(7)
---------------- ----------------------- ------------------------- ----------------------
Tranche A Term Loans $______________ $______________ %______________
Tranche B Term Loans $______________ $______________ %______________
Multicurrency Facility $______________ $______________ %______________
Revolving Loan Commitment
Dollar Facility Revolving $______________ $______________ %______________
Loan Commitment
Effective Date ___________, ____, 200__.
ASSIGNOR[S] INFORMATION ASSIGNEE[S] INFORMATION
Payment Instructions: Payment Instructions:
--------------- ------------------
--------------- ------------------
--------------- ------------------
--------------- ------------------
Reference: Reference:
------ ---------
Notice Instructions: Notice Instructions:
--------------- ------------------
(6) Insert this chart if this Form of Assignment and Assumption Agreement is
being used by a single Assignor for an assignment to a single Assignee.
(7) Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
Exhibit K
Page 4
--------------- ------------------
--------------- ------------------
--------------- ------------------
Reference: Reference:
----- --------
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR ASSIGNEE
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE](8)
By: By:
---------------------------- -------------------------------
Name: Name:
Title: Title:
(8) Add additional signature blocks, as needed, if this Form of Assignment
and Assumption Agreement is being used by funds managed by the same or
related investment managers.
Exhibit K
Page 5
[Consented to and](9) Accepted:
DEUTSCHE BANK AG NEW YORK BRANCH,
as Administrative Agent
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
[XXXX FOOD COMPANY, INC.
By:
-------------------------------
Name:
Title:](10)
[[NAME OF EACH CHILEAN GUARANTOR]
By:
-------------------------------
Name:
Title:](11)
[[NAME OF EACH ISSUING LENDER],
as an Issuing Lender
(9) Insert only if assignment is being made to an Eligible Transferee
pursuant to Section 13.04(b)(y) of the Credit Agreement.
(10) Insert only if (i) no Event of Default or Default is then in existence,
(ii) the assignment is being made to an Eligible Transferee pursuant to
13.04(b)(y) of the Credit Agreement and (iii) assignment is not being
made prior to the Syndication Date and as part of the primary syndication
of the Loans and Commitments.
(11) Insert only if (i) an assignment of Multicurrency Facility Revolving Loan
Commitments, (ii) no Event of Default or Default is then in existence,
(iii) the assignment is being made to an Eligible Transferee pursuant to
13.04(b)(y) of the Credit Agreement and (iv) assignment is not being made
prior to the Syndication Date and as part of the primary syndication of
the Loans and Commitments.
Exhibit K
Page 6
By:
-------------------------------
Name:
Title:](12)
[DEUTSCHE BANK AG NEW YORK BRANCH,
as Swingline Lender
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:](13)
[[NAME OF EACH BANK GUARANTY ISSUER],
as a Bank Guaranty Issuer
By:
-------------------------------
Name:
Title:](14)
(12) Insert for any assignment of a Revolving Loan Commitment pursuant to
clause (x) or (y) of Section 13.04(b) of the Credit Agreement. The
consent of each Issuing Lender shall not be unreasonably withheld or
delayed.
(13) Insert for any assignment of a Revolving Loan Commitment pursuant to
clause (x) or (y) of Section 13.04(b) of the Credit Agreement. The
consent of the Swingline Lender shall not be unreasonably withheld or
delayed.
(14) Insert for any assignment of a Multicurrency Facility Revolving Loan
Commitment pursuant to clause (x) or (y) of Section 13.04(b) of the
Credit Agreement. The consent of each Bank Guaranty Issuer shall not be
unreasonably withheld or delayed.
ANNEX I
TO
EXHIBIT K
XXXX FOOD COMPANY, INC.
SOLVEST, LTD.
CREDIT AGREEMENT
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
1.1. Assignor. [The] [Each] Assignor (a) represents and
warrants that (i) it is the legal and beneficial owner of [the] [its] Assigned
Interest, (ii) [the] [its] Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with any Credit Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, any other Credit Document or any other instrument or document
delivered pursuant thereto (other than this Assignment) or any collateral
thereunder, (iii) the financial condition of Holdings, any of its Subsidiaries
or affiliates or any other Person obligated in respect of any Credit Document or
(iv) the performance or observance by Holdings, any of its Subsidiaries or
affiliates or any other Person of any of their respective obligations under any
Credit Document.
1.2. Assignee. [The] [Each] Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) confirms that it is (A) a Lender, (B) a parent company and/or an
affiliate of [the] [an] Assignor which is at least 50% owned by [the] [an]
Assignor or its parent company, (C) a fund that invests in bank loans and is
managed by the same investment advisor as a Lender or by an affiliate of such
investment advisor or (D) an Eligible Transferee under Section 13.04(b) of the
Credit Agreement; (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 8.01 thereof, as applicable,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision and (v) if it is organized under the laws of a jurisdiction outside
the United States, attached to this Assignment is any tax documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by [the] [each such] Assignee; (b) agrees that it will,
independently and without reliance upon the Administrative Agent, [the][each]
Assignor, or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (c) appoints and
authorizes each of the Administrative Agent, the Co-Syndication Agents, the
Co-Documentation Agents and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement and the other
Credit
Annex I
to Exhibit K
Page 2
Documents as are delegated to or otherwise conferred upon the
Administrative Agent, the Co-Syndication Agents, the Co-Documentation Agents or
the Collateral Agent, as the case may be, by the terms thereof, together with
such powers as are reasonably incidental thereto; and (d) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Credit Documents are required to be performed by it as a Lender.
2. Payment. From and after the Effective Date, the
Administrative Agent shall make all payments in respect of [the] [each] Assigned
Interest (including payments of principal, interest, fees, commissions and other
amounts) to [the][each] Assignor for amounts which have accrued to but excluding
the Effective Date and to [the] [each] Assignee for amounts which have accrued
from and after the Effective Date.
3. Upon the delivery of a fully executed original hereof to
the Administrative Agent, as of the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Assumption Agreement, have the rights and obligations of a Lender thereunder and
under the other Credit Documents and (ii) the Assignor shall, to the extent
provided in this Assignment and Assumption Agreement, relinquish its rights and
be released from its obligations under the Credit Agreement and the other Credit
Documents.
4. General Provisions. This Assignment shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Assignment may be executed in any number of counterparts,
which together shall constitute one instrument. Delivery of an executed
counterpart of a signature page of this Assignment by telecopy shall be
effective as delivery of a manually executed counterpart of the Assignment. THIS
ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5.1401
OF THE GENERAL OBLIGATIONS LAW).
* * *
