AMENDED AND RESTATED CREDIT AGREEMENT
AND COLLATERAL RELEASE
AMENDED AND RESTATED CREDIT AGREEMENT AND COLLATERAL RELEASE dated as of
January 23, 1998 among IOMEGA CORPORATION (the Borrower), the BANKS listed on
the signature pages hereof (the Banks), and CITICORP USA, INC., as Security
Agent (the Amendment and Restatement).
W I T N E S S E T H :
WHEREAS, Citibank, N.A., as Administrative Agent, Xxxxxx Guaranty Trust
Company of New York, as Documentation Agent, and the parties hereto other than
Citicorp USA, Inc., have heretofore entered into a Credit Agreement dated as of
March 11, 1997 (the Credit Agreement); and
WHEREAS, the parties hereto desire to (x) modify the Credit Agreement to
(i) extend the Termination Date from March 11, 2000 to January 23, 2001, (ii)
change the Commitment Schedule and the Pricing Schedule and permit each of Xxxxx
Fargo Bank, N.A., Credit Lyonnais Los Angeles Branch, National Bank of Canada
and Credit Italiano, New York Branch, to cease to be a party to the Credit
Agreement as of the date hereof, (iii) agree as to the amount of the Borrowing
Base for the period from the date hereof through the first date on which
financial statements are required to be delivered for the first Fiscal Quarter
ending after the date hereof, (iv) amend the definition of Restricted Payment
and the restricted payments covenant to permit specified amounts of stock
repurchases and rights redemptions, (v) amend the definition of Temporary Cash
Investment to permit certain Investments by foreign Subsidiaries, (vi) amend the
litigation representation to reflect proceedings disclosed in periodic filings
with the Securities and Exchange Commission and (vii) modify the representations
as to Subsidiaries to exclude immaterial Subsidiaries, (y) release the
Collateral and (z) restate the Credit Agreement in its entirety to read as set
forth in the Credit Agreement with the modifications specified below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Credit Agreement has the
meaning assigned to such term in the Credit Agreement. Each reference to hereof,
hereunder, herein and hereby and each other similar reference and each reference
to this Agreement and each other similar reference contained in the Credit
Agreement shall, after this Amendment becomes effective, refer to the Credit
Agreement as amended and restated hereby.
SECTION 2. Definition of Restricted Payments. The definition of Restricted
Payment in Section 1.01 of the Credit Agreement is amended to add the following
sentence at the end thereof:
It is understood that the net exercise of stock options and other employee
awards not involving any cash payments by the Borrower, pursuant to plans
described in the Borrower's filings with the Securities and Exchange
Commission, does not constitute a Restricted Payment by the Borrower.
SECTION 3. Definition of Temporary Cash Investment. Clause (iii) of the
definition of Temporary Cash Investment in Section 1.01 of the Credit Agreement
is amended to read in its entirety as follows:
(iii) time deposits with, including certificates of deposit issued by, any
office located in the United States of any bank or trust company which is
organized or licensed under the laws of the United States or any State
thereof (or, if the Investment is made outside the United States by a
foreign Subsidiary, any office located in the United Kingdom, Switzerland
or the Netherlands of any bank or trust company which is organized or
licensed under the laws of the United Kingdom, Switzerland or the
Netherlands, the unsecured long-term debt of which is rated at least A by
Standard & Poor's Ratings Service or A2 by Mode's Investors Services, Inc.)
and has capital, surplus and undivided profits aggregating at least
$1,000,000,000,
SECTION 4. Extension of Termination Date. The definition of Termination
Date in Section 1.01 of the Credit Agreement is amended by changing the date
specified therein from March 11, 2000 to January 23, 2001.
SECTION 5. Modification of Litigation Representation. Section 4.05 of the
Credit Agreement is amended by replacing the word There with the following:
Except with respect to clause (i) of the definition of Material Adverse
Effect in the event of an adverse decision in any of the legal proceedings
referenced in the Borrower's Quarterly Report on Form 10-Q for the
quarterly period ended September 28, 1997 or in any antitrust or fair trade
proceeding relating to Nomai S.A.'s XHD cartridge, there
SECTION 6. Material Subsidiaries. Section 4.09 of the Credit Agreement is
amended by adding after the word Subsidiaries the following:
which has consolidated assets of at least $1,000,000
SECTION 7. Increase in Minimum Consolidated Tangible Net Worth Section 7.
Increase in Minimum Consolidated Tangible Net Worth . Section 5.11 of the Credit
Agreement is amended by changing the amount specified therein from $250,000,000
to $313,600,000 and by changing the dates specified therein from December 31,
1996 to September 30, 1997.
SECTION 8. Increase in Amount Available for Restricted Payments Section
5.15 of the Credit Agreement is amended in its entirety to read as follows:
Neither the Borrower nor any Subsidiary will declare or make any Restricted
Payment; provided that the Borrower may (x) purchase and retire shares of its
capital stock and (y) redeem rights issued under any shareholders rights plan as
in effect from time to time so long as the aggregate amount paid for such
purchases in any Fiscal Quarter of 1998, Fiscal Year 1999, Fiscal Year 2000 or
Fiscal Year 2001 (each, a Fiscal Period) does not exceed the Permitted Amount
for such Fiscal Period. For purposes of this Section, Permitted Amount means (w)
for the first Fiscal Quarter of 1998, $50,000,000, (x) for each of the second,
third and fourth Fiscal Quarters of 1998, the sum of 30% of consolidated net
income of the Borrower and its Consolidated Subsidiaries for the prior Fiscal
Quarter (the Prior Quarter) plus the amount (if any) by which the Permitted
Amount for the Prior Quarter exceeds the aggregate amount paid for such
purchases during the Prior Quarter, (y) during Fiscal Year 1999, the sum of 30%
of consolidated net income of the Borrower and its Consolidated Subsidiaries for
the fourth Fiscal Quarter of 1998 plus the amount (if any) by which the
Permitted Amount for the fourth Fiscal Quarter of 1998 exceeds the aggregate
amount paid for such purchases during the fourth Fiscal Quarter of 1998, and (z)
in any subsequent Fiscal Year, beginning with Fiscal Year 2000, the sum of 20%
of consolidated net income of the Borrower and its Consolidated Subsidiaries for
the prior Fiscal Year plus the amount (if any) by which the Permitted Amount for
the prior Fiscal Year exceeds the amount paid for such purchases during such
prior Fiscal Year. For purposes of calculating compliance with the limitations
set forth in the preceding sentence, the amount of any Restricted Payment shall
be reduced (but not below zero) by any cash gains realized on transactions in
Derivatives Obligations entered into to hedge or close out the transaction with
respect to which the Restricted Payment was made, and the Borrower shall notify
the Agents and the Banks promptly if any Permitted Amounts are recalculated
retroactively to give effect to any such reduction.
SECTION 9. Reallocation of Commitments; Reduction of Interest Rates;
Departing Banks. The Commitment Schedule and Pricing Schedule attached to the
Credit Agreement (the Existing Schedules) are deleted and replaced by the
Commitment Schedule and the Pricing Schedule attached to this Amendment and
Restatement (the New Schedules). The New Schedules shall apply to and for
purposes of calculation of interest and fees accruing under the Credit Agreement
on and after the date hereof. The Existing Schedules shall continue to apply to
interest and fees accruing under the Credit Agreement prior to the date hereof.
As of the date hereof, each of Xxxxx Fargo Bank, N.A., Credit Lyonnais Los
Angeles Branch, National Bank of Canada and Credito Italiano, New York Branch,
hereby ceases to be a party to the Credit Agreement as amended by this Amendment
and Restatement.
SECTION 10. Agreement with Respect to Borrowing Base. The Banks agree that
during the period beginning on the date hereof and ending on the first date on
which financial statements are required to be delivered pursuant to clause (a)
or (b) of Section 5.01 for the first Fiscal Quarter ending after the date
hereof, the Borrowing Base shall be $200,000,000.
SECTION 11. Release of Collateral. The Banks consent to the release by the
Security Agent of, and the Security Agent hereby releases, all of the
Collateral. From and after the date hereof, all provisions of the Credit
Agreement relating to Collateral are deemed to be without further force or
effect. Without limiting the generality of the foregoing, the Pledge Agreement
and the Security Agreement are terminated and Sections 4.12 and 6.01(k) of the
Credit Agreement are deleted in their entirety.
SECTION 12. Representations of BorrowerSection. The Borrower represents and
warrants that (i) the representations and warranties of the Borrower set forth
in Article 4 of the Credit Agreement are true on and as of the date hereof and
(ii) no Default has occurred and is continuing on such date.
SECTION 13. Governing Law. This Amendment and Restatement shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 14. Counterparts. This Amendment and Restatement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 15. Effectiveness. This Amendment and Restatement shall become
effective as of the date hereof on the date when the following conditions are
met (the Amendment Closing Date):
(a) the Documentation Agent shall have received from each of the
Borrower and the Banks a counterpart hereof signed by such party or
facsimile or other written confirmation (in form satisfactory to the
Documentation Agent) that such party has signed a counterpart hereof;
(b) the Documentation Agent shall have received an opinion of Xxxx and
Xxxx LLP, counsel for the Borrower, dated the Amendment Closing Date and
substantially in the form of Exhibit A hereto; and
(c) the Documentation Agent shall have received a certificate, dated
the Amendment Closing Date, signed by the Secretary of the Borrower and
substantially in the form of Exhibit B hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed by their respective authorized officers as
of the day and year first above written.
IOMEGA CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
BANKS
CITIBANK, N.A.
By /s/ Xxxxxxx X. Xxx
Name: Xxxxxxx X. Xxx
Title: Attorney-in-Fact
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ Xxxxxxx Xxxxx _
Name: Xxxxxxx Xxxxx
Title: Vice President
FLEET NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
XXXXX FARGO BANK, N.A.
By /s/ Xxxxxx Xxxxx, Xx.
Name: Xxxxxx Xxxxx, Xx.
Title: Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By /s/ Xxxxx Xx Xxxxx
Name: Xxxxx Xx Xxxxx
Title: Managing Director
FIRST SECURITY BANK, N.A.
By /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By /s/ X. X. Xxxxxx
Name: X. X. Xxxxxx
Title: Assistant Vice President
ABN AMRO BANK N.V.
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Group Vice President
By /s/ Xxxxxxx X. XxXxxxx
Name: Xxxxxxx X. XxXxxxx
Title: Assistant Vice President
CREDIT LYONNAIS LOS ANGELES
BRANCH
By /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President and Manager
NATIONAL BANK OF CANADA
By /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X.Xxxxx
Title: Vice President
By /s/ A.M. Xxxxxxx
Name: A.M. Xxxxxxx
Title: Vice President
THE SUMITOMO TRUST & BANKING
CO., LTD., LOS ANGELES AGENCY
By /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President & Manager
CREDITO ITALIANO, NEW YORK
BRANCH
By /s/ Xxxxxxxxxx Xxxxxxx
Name: Xxxxxxxxxx Xxxxxxx
Title: First Vice President
By /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
THE NORTHERN TRUST COMPANY
By /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Second Vice President
ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A
By /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: First Vice President
By /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
THE SANWA BANK, LIMITED, LOS
ANGELES BRANCH
By /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Assistant Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
CITICORP USA, INC., as Security Agent
By /s/ Xxxxxxx X. Xxx
Name: Xxxxxxx X. Xxx
Title: Attorney-in-Fact
COMMITMENT SCHEDULE
Bank Commitment
Citibank, N.A .............................................. $ 25,000,000
Xxxxxx Guaranty Trust Company of New York .................. 25,000,000
Fleet National Bank ........................................ 20,000,000
First Security Bank of Utah, N.A ........................... 20,000,000
KeyBank National Association ............................... 20,000,000
ABN AMRO Bank N.V .......................................... 20,000,000
Bank of America National Trust and Savings
Association ............................................. 13,000,000
The Sumitomo Trust & Banking Co., Ltd. .....................
Los Angeles Agency ...................................... 13,000,000
The Northern Trust Company ................................. 13,000,000
Union Bank of California, N.A .............................. 13,000,000
Istituto Bancario San Paolo Di Torino S.P.A ................ 10,000,000
The Sanwa Bank, Limited, Los Angeles Branch ................ 8,000,000
Total .............................................. $200,000,000
PRICING SCHEDULE
Each of Euro-Dollar Margin, Base Rate Margin and Commitment Fee Rate means, for
any date, the percentage as set forth below in the row opposite such term and in
the column corresponding to the Pricing Level that applies at such date:
-------------------- ----------------- ------------- ------------- -------------
Xxxxx Xxxxx Xxxxx Xxxxx
X II III IV
==================== ================= ============= ============= =============
Euro-Dollar 1.0% 1.125% 1.375% 1.75%
Margin
==================== ================= ============= ============= =============
Base Rate 0% 0% 0% .375%
Margin
Commitment Fee Rate .25% .25% .25% .375%
-------------------- ----------------- -------------- ------------- ------------
For purposes of this Schedule, the following terms have the following
meanings:
Level I Pricing applies at any date if, as of such date, the Leverage
Ratio is less than .15 to 1.
Level II Pricing applies at any date if, as of such date, (i) the
Leverage Ratio is less than or equal to .35 to 1 and (ii) Level I Pricing
does not apply.
Level III Pricing applies at any date if, as of such date, (i) the
Leverage Ratio is less than or equal to .5 to 1 and (ii) neither Level I
Pricing nor Level II Pricing applies.
Level IV Pricing applies at any date if, as of such date, no other
Pricing Level applies.
2
Leverage Ratio means as of any date the ratio of Consolidated Debt to
Consolidated Tangible Net Worth set forth in the most recent certificate
delivered pursuant to Section 5.01(c); provided that unless the Required
Banks otherwise agree, if the Borrower has failed to deliver the financial
statements and accompanying certificates most recently required to have
been delivered within the time periods specified therefor in Section 5.01,
Level IV Pricing shall apply until the next date on which financial
statements and accompanying certificates are timely delivered.
Pricing Level refers to the determination of which of Level I, Level
II, Level III or Level IV applies at any date.
EXHIBIT A
Opinion of
Counsel for the Borrower
January 23, 1998
To the Banks and the Agents
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Documentation Agent
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We have acted as counsel for Iomega Corporation (the "Borrower") in
connection with the Amended and Restated Credit Agreement and Collateral Release
of even date herewith (the Amendment and Restatement), which amends and restates
the Credit Agreement dated as of March 11, 1997 (as so amended, the "Credit
Agreement") among the Borrower, the Banks party thereto, Citibank, N.A. as
Administrative Agent, and Xxxxxx Guaranty Trust Company of New York, as
Documentation Agent. Capitalized terms used but not otherwise defined herein
have the meanings ascribed to such terms in the Credit Agreement . This opinion
is furnished to you at the request of our client pursuant to Section 15(b) of
the Amendment and Restatement.
For purposes of the opinions expressed below, we have examined the
following:
a. the Credit Agreement;
b. the Amendment and Restatement;
c. that certain Secretary's Certificate of the Borrower of even date
herewith (the "Secretary's Certificate");
d. those certain resolutions of the board of directors of the Borrower in
the form annexed to the Secretary's Certificate as Exhibit C (the
"Resolutions");
5
e. the Borrower's Certificate of Incorporation, as amended (the "Articles
of Organization");
f. the By-Laws of the Borrower (the "By-Laws");
g. that certain Certificate of Legal Existence and Good Standing for the
Borrower dated January 14, 1998, issued by the Secretary of State of
the State of Delaware (the "Good Standing Certificate");
h. that certain Certificate of Foreign Qualification for the Borrower
dated January 21, 1998, issued by the Secretary of the State of the
State of Utah (the "Foreign Qualification Certificate"); and
i. such other documents, instruments and certificates (including, but not
limited to, certificates of public officials and officers of the
Borrower) as we have considered necessary for purposes of this
opinion.
In our examination of the documents described above, we have assumed the
genuineness of all signatures (other than signatures of officers of the Borrower
certified to us), the capacity, power and authority of all parties (other than
the Borrower) to execute and deliver all applicable documents, the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all copies of documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents. As to
any facts material to this opinion, we have relied upon representations made to
us by one or more officers or employees of the Borrower.
Any reference to "our knowledge" or "knowledge" or any variation thereof
shall mean the conscious awareness of the attorneys in this firm who have
rendered substantive attention to this transaction of any facts which would
contradict our opinions set forth below. Although we have not undertaken any
independent investigation to determine the existence or absence of such facts,
and no inference as to our knowledge of the existence or absence of such facts
should be drawn from the fact of our representation of the Borrower, nothing has
come to our attention leading us to question the accuracy of such matters.
Without limiting the generality of the foregoing, with respect to our opinions
in paragraphs 4 and 5 below, we have not conducted a search of the dockets of
any court or administrative or other regulatory agency.
We express no opinion herein with respect to the laws of any state or
jurisdiction other than the Commonwealth of Massachusetts, the Delaware General
Corporation Law statute and the federal laws of the United States of America. We
note that the Amendment and Restatement and the Credit Agreement provide that
they are governed by the laws of the State of New York. With your permission, we
have assumed, without investigation, for purposes of the opinions expressed
below, that the laws of the Commonwealth of Massachusetts are identical to the
laws of the State of New York.
The opinion expressed in paragraph 1 below, insofar as it relates to the
valid existence and corporate good standing of the Borrower in Delaware, is
based solely upon the Good Standing Certificate and is rendered as of the date
thereof. Our opinion in paragraph 1 below, to the extent pertaining to the
qualification of Borrower to do business in the State of Utah, is based solely
upon the Foreign Qualification Certificate and is rendered as of the date
thereof.
Our opinions below are qualified to the extent that the validity or
enforceability of the documents referred to or of any of the rights granted to
any party pursuant thereto may be subject to or affected by (i) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting the rights of creditors generally, (ii) statutory or
decisional law concerning recourse by creditors to security in the absence of
notice or hearing, and (iii) duties and standards imposed on creditors and
parties to contracts, including, without limitation, requirements of good faith,
reasonableness and fair dealing. Furthermore, we express no opinion as to the
availability of any equitable or specific remedy upon any breach of such
documents or any of the agreements, documents or obligations referred to
therein, as the availability of such remedies may be subject to the discretion
of a court.
Based upon and subject to the foregoing, and further subject to the
qualifications set forth below, it is our opinion that:
1. The Borrower is a corporation duly organized, validly existing and in good
standing under the laws of Delaware and is qualified to do business as a
foreign corporation in the State of Utah, with all requisite corporate
power and authority to own, operate or lease its properties and assets and
to carry on its business as, to our knowledge, it is now being conducted.
2. The execution and delivery by the Borrower of the Amendment and Restatement
and the performance by it of its obligations under the Credit Agreement are
within the Borrower's corporate powers and have been duly authorized by all
necessary corporate action on the part of the Borrower.
3. The Amendment and Restatement has been duly executed and delivered by the
Borrower, and each of the Amendment and Restatement and the Credit
Agreement constitutes a legal, valid and binding obligation of the Borrower
enforceable in accordance with its terms.
4. The execution and delivery by the Borrower of the Amendment and
Restatement, the performance by the Borrower of the terms and provisions of
the Credit Agreement and the consummation of the transactions contemplated
thereby, will not violate, conflict with, result in a breach or termination
of, or a default under (or an event which, with or without due notice or
lapse of time, or both, would constitute a default under) or accelerate the
performance required by, or result in the creation of any lien, security
interest, charge or other encumbrance upon any of the properties or assets
of the Borrower under any of the terms, conditions or provisions of (i) the
Articles of Organization or By-Laws, (ii) any laws applicable to the
Borrower, (iii) to our knowledge, any judgment, order, decree, ruling or
injunction specifically naming the Borrower or specifically applicable to
its properties, of any court or governmental authority, or (iv) any of the
agreements to which the Borrower is a party which have been filed as
exhibits to the Borrower's filings with the Securities and Exchange
Commission, and which will remain in effect following consummation of the
Credit Agreement.
5. To our knowledge, without independent investigation or inquiry of any kind,
there is no action, suit, proceeding or investigation pending or threatened
against the Borrower before any court or governmental department, which
could prevent the consummation of the transactions contemplated by the Loan
Documents or purports by its terms to challenge the validity or
enforceability of the Loan Documents or any action taken or to be taken in
connection with the transactions contemplated thereby, or which, except as
disclosed in Section 4.05 of the Credit Agreement, if adversely determined,
could have a material adverse effect on the business, condition, affairs or
operations of the Borrower or any material impairment of the right or
ability of the Borrower to carry on its operations as now conducted.
This opinion is based upon currently existing statutes, rules, regulations
and judicial decisions, and we disclaim any obligation to advise you of any
change in any of these sources of law or subsequent legal or factual
developments which might affect any matters or opinions set forth herein.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters. This opinion
is solely for your benefit, and the benefit of your counsel, in connection with
the consummation of the transactions contemplated by the Credit Agreement, and
may not be quoted or relied upon by any other person without our prior written
consent.
Very truly yours,
By /s/ Xxxx and Xxxx LLP
XXXX AND XXXX LLP
EXHIBIT B
Iomega Corporation
SECRETARY'S CERTIFICATE
The undersigned, Secretary of Iomega Corporation, a Delaware corporation
(the Company), DOES HEREBY CERTIFY THAT:
1. This Certificate is furnished in connection with the Amendment and
Restatement dated as of January 23, 1998 (the Amendment and
Restatement) amending and restating that certain Credit Agreement
dated as of March 11, 1997, among the Company, the banks party
thereto, Citibank, N.A., as Administrative Agent and Xxxxxx Guaranty
Trust Company of New York, as Documentation Agent (as amended by the
Amendment and Restatement, the Amended Credit Agreement).
2. The copy of the Certificate of Incorporation of the Company attached
hereto and marked as Exhibit A, is true, correct and in effect on and
as of the date hereof.
3. The Certificate of Incorporation of the Company has not been amended
since June 6, 1997 and no action has been taken by the Company or its
directors or officers or, to the best of its knowledge, its
stockholders in contemplation of the filing of any such amendment or
other document or in contemplation of the liquidation or dissolution
of the Company since June 6, 1997.
4. The copy of the bylaws of the Company attached hereto and marked as
Exhibit B is true, correct and in effect on and as of the date hereof.
5. The bylaws of the Company have not been amended or otherwise modified
since June 6, 1997.
6. Attached hereto and marked as Exhibit C is a true and correct copy of
the resolutions adopted by the Board of Directors of the Company on
and as of January 19, 1998, which resolutions are in full force and
effect.
2
7. The signature set forth opposite the person's name below is his
genuine signature and the office opposite such person's name is the
office he currently holds with the Company:
Name Office Signature
Xxx Xxxxxx Chief Financial Officer By /s/ Xxx Xxxxxx
Xxxxxx Xxxxxxx Treasurer By /s/ Xxxxxx Xxxxxxx
8. The banks party to the Amended Credit Agreement and the Administrative
Agent and the Documentation Agent may rely on this Certificate.
9. Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Amended Credit Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of January 20, 1998.
By /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Secretary
The undersigned, Xxxxxx Xxxxxxx, Treasurer of the Company, does hereby
certify that Xxxxxx X. Xxxxxxx is a duly elected, qualified Secretary of the
Company and the signature appearing above is his genuine signature.
By /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Treasurer
