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EXHIBIT 10.1
THIRD AMENDMENT AGREEMENT
This THIRD AMENDMENT AGREEMENT, dated as of February 28, 1997
(this "Agreement"), is among ▇▇▇▇▇ COMPANIES, INC., a Delaware corporation (the
"Company"), the several financial institutions (collectively, the "Banks";
individually, a "Bank") party to the Multicurrency Credit Agreement, dated as
of December 15, 1995, as amended (the "Credit Agreement"), among the Company,
the Banks, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent
for the Banks (in such capacity, the "Agent").
The parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement, as
amended hereby, are used herein with the same meanings unless otherwise
specifically defined herein.
Section 2. Amendments to the Credit Agreement. The Credit Agreement
is hereby amended:
(a) To add certain defined terms to Section 1.01 thereof as
follows:
"Asset Sale Date" means the date on which the Company
has, with respect to sales (whether or not accompanied by a
leaseback) during the period after December 31, 1996, of
fixed assets of the Company located in the United States,
received total cumulative consideration (whether in the form
of cash, debt, assumption of Indebtedness, or other
consideration and without deduction for any Indebtedness
secured by or otherwise payable from the proceeds of, such
assets) of at least $30,000,000.
"Capital Expenditures" means, for any period, the
capital expenditures of the Company and its Subsidiaries for
such period, as the same are (or would in accordance
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with GAAP (as in effect on February 28, 1997) be) set forth in
a consolidated statement of cash flows of the Company and its
Subsidiaries for such period.
"Designated Special Charges" means with respect to
the fourth fiscal quarter of the 1997 fiscal year or either of
the first two fiscal quarters of the 1998 fiscal year, the
amount of any non-recurring special charges to the Company's
consolidated net income occurring during such fiscal quarter
and which are designated by the Company by notice, given
within 30 days of the end of such fiscal quarter, to the Agent
and the Banks as being "designated special charges" with
respect to such fiscal quarter; provided that the aggregate
amount of all such "designated special charges" with respect
to all such fiscal quarters shall not exceed $15,000,000.
"Level V Period" means a period which is not a Level
I Period, a Level II Period, a Level III Period, or a Level IV
Period.
"Operating Lease Obligation Amount" means at any time
for any Person, on a consolidated basis, the present value (at
a 10% per annum discount rate, compounded annually) of all
present and future payments which such Person is obligated to
make as a lessee in respect of operating leases (including the
outstanding terms thereof and all options to extend or renew
such
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operating leases which have been exercised).
"Reference Banks" means BofA, ABN Amro Bank N.V., and
Standard Chartered Bank.
"Third Amendment Agreement" means the Third Amendment
Agreement, dated as of February 28, 1997, among the Company,
the Banks, and the Agent.
"Third Amendment Effective Date" means the date on
which the Third Amendment Agreement became effective in
accordance with its terms.
(b) To amend and restate in their entirety certain
definitions set forth in Section 1.01 thereof as follows:
"Applicable Margin" means
(a) with respect to Base Rate Loans, 0%;
(b) with respect to Offshore Rate Loans other than
Canadian BA Rate Loans:
(x) 1.250% from the Third Amendment Effective
Date to five days after the Compliance Certificate required
under Section 7.02(a) with respect to the financial statements
for second fiscal quarter of the Company's 1998 fiscal year is
received by the Agent, and
(y) for any other period: (i) 0.375% during
any Level I Period, (ii) 0.500% during any Level II Period,
(iii) 0.625% during any Level III Period, (iv) 0.750% during
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any Level IV period, and (v) 1.250% during any Level V period;
and
(c) with respect to Canadian BA Rate Loans, 0.750%.
"Cash Flow Leverage Ratio" means for any four fiscal
quarter period for the Company and its Subsidiaries on a
consolidated basis, the ratio of (a) Adjusted Funded Debt as
at the end of such period to (b) EBITDA for such period plus
$17,000,000 with respect to any four fiscal quarter period
which includes the third fiscal quarter of the 1997 fiscal
year, plus the amount of any Designated Special Charges with
respect to any four fiscal quarter period which includes the
fiscal quarter in which such Designated Special Charges
occurred.
"Fixed Charge Coverage Ratio" means for any four
fiscal quarter period, on a consolidated basis for the Company
and its Subsidiaries, the ratio of (a) EBITDA plus total
rental expense for operating leases minus Contingent
Acquisition Payments, plus $11,000,000 with respect to any
four fiscal quarter period which includes the third fiscal
quarter of the 1996 fiscal year, plus $11,500,000 with respect
to any four fiscal quarter period which includes the fourth
fiscal quarter of the 1996 fiscal year, plus $17,000,000 with
respect to any four fiscal quarter period which includes the
third fiscal quarter of the 1997 fiscal year, plus the amount
of any Designated Special Charges with respect to any four
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fiscal quarter period which includes the fiscal quarter in
which such Designated Special Charges occurred to (b) the sum
of (i) cash taxes, (ii) cash interest expense, (iii) total
rental expense for operating leases, (iv) current portion of
long term debt (as of the end of such period and determined in
accordance with GAAP), (v) $3,850,000 with respect to any four
fiscal quarter period which includes the third fiscal quarter
of the 1996 fiscal year, and (vi) $4,025,000 with respect to
any four fiscal quarter period which includes the fourth
fiscal quarter of the 1996 fiscal year, (vii) $5,950,000 with
respect to any four fiscal quarter period which includes the
third fiscal quarter of the 1997 fiscal year, and (viii) 35%
of the amount of any Designated Special Charges with respect
to any four fiscal quarter period which includes the fiscal
quarter in which such Designated Special Charges occurred.
"Level IV Period" means a period (i) commencing five
days after the Agent has received a Compliance Certificate
pursuant to Section 7.02(a) which shows a Cash Flow Leverage
Ratio of less than 2.75 to 1.00 and continuing until the
earlier of (A) five days after the next such Compliance
Certificate is received by the Agent and (B) five days after
the next such Compliance Certificate and accompanying
financial statements are required to be delivered to the Agent
under Sections 7.01(a) or (b) (as applicable) and 7.02(a) and
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(ii) which is not a Level I Period, a Level II Period, or a
Level III Period.
"Leverage Ratio" for any Person at any time means the
ratio of (a) the Funded Debt of such Person plus the Operating
Lease Obligation Amount of such Person to (b) the Net Worth of
such Person.
(c) To amend and restate in its entirety clause (b) of
the definition of "Offshore Rate" set forth in Section 1.01 thereof as follows:
(b) for Offshore Rate Loans in Dollars or any
Offshore Currency (IBOR), (i) the rate of interest per annum
determined by the Agent as the offered rate for deposits in
the Applicable Currency in the approximate amount of BofA's
Offshore Rate Loan for such Interest Period, which rate
appears on the display page on the Telerate System, Page 3750,
for the London interbank offered rates for interbank deposits
in such Applicable Currency as of 11:00 a.m. London time two
Business Days prior to the commencement of such Interest
Period, or (ii) in the event the Agent is unable to obtain a
quotation as above provided, then the rate of interest per
annum determined by the Agent to be the arithmetic mean
(rounded upwards to the next 1/16th of 1%) of the rates of
interest per annum notified to the Agent by each Reference
Bank to be the rate at which dollar deposits in the
approximate amount of such Reference Bank's Offshore Rate Loan
for such Interest Period would be
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offered by the applicable Lending Office to major banks in the
London eurodollar interbank market at their request at
approximately 11:00 a.m. (New York City time) two Business
Days prior to the commencement of such Interest Period; and
(d) To amend and restate in its entirety Section 2.06 thereof
as follows:
2.06 Termination or Reduction of Commitments.
(a) Voluntary. The Company may, upon not less than
five Business Days' prior notice to the Agent, terminate the
Commitments or L/C Commitment, or permanently reduce the
Commitments or L/C Commitment by an aggregate minimum Dollar
Equivalent amount of $1,000,000 or any Dollar Equivalent
multiple of $1,000,000 in excess thereof; unless, after giving
effect thereto and to any prepayments of Loans made on the
effective date thereof, the (i) Effective Amount of all Loans
and L/C Obligations would exceed the amount of the combined
Commitments then in effect or (ii) the Effective Amount of all
L/C Obligations would exceed the L/C Commitment.
(b) Mandatory. The combined Commitments shall be
reduced by $20,000,000 on the first to occur of (i) April 30,
1997, or (ii) five Business Days after the Asset Sale Date.
(c) Effect. Each reduction of the Commitments
required or permitted by
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this Section is separate and cumulative, so that any one such
reduction shall not diminish any other such reduction, and the
reductions applicable to the Commitments on any date shall be
the aggregate amount of the reductions occurring on or before
such date. Any reduction of the Commitments shall be applied
to each Bank according to its Pro Rata Share. All accrued but
unpaid commitment and letter of credit fees to, but not
including the effective date of any reduction or termination
of Commitments, shall be paid on the effective date of such
reduction or termination.
(d) Swingline. At no time shall the Swingline
Commitment exceed the aggregate Commitments, and any reduction
of the aggregate Commitments which reduces the aggregate
Commitments below the then-current amount of the Swingline
Commitment shall result in an automatic corresponding
reduction of the Swingline Commitment to the amount of the
aggregate Commitments, as so reduced, without any action on
the part of the Swingline Bank. At no time shall the
Swingline Commitment exceed the Commitment of the Swingline
Bank, and any reduction of the aggregate Commitments which
reduces the Commitment of the Swingline Bank below the then-
current amount of the Swingline Commitment shall result in an
automatic corresponding reduction of the Swingline Commitment
to the amount of the Commitment of the Swingline Bank,
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as so reduced, without any action on the part of the Swingline
Bank.
(e) To amend and restate in its entirety the first sentence
of subsection (b) of Section 2.12 thereof as follows:
The Company shall pay to the Agent for the account of each
Bank a commitment fee on the average daily unused portion of
such Bank's Commitment equal to (x) 0.500% for the period from
the Third Amendment Effective Date to the earlier of (A) five
days after the Compliance Certificate required under Section
7.02(a) with respect to the financial statements for the
second fiscal quarter of the Company's 1998 fiscal year is
received by the Agent and (B) five days after the next such
Compliance Certificate and accompanying financial statements
are required to be delivered to the Agent under Sections
7.01(a) and 7.02(a) and (y) for any other period: (i) 0.125%
during any Level I Period, (ii) 0.175% during any Level II
Period, (iii) 0.200% during any Level III Period, (iv) 0.250%
during any Level IV period, and (v) 0.500% during any Level V
period.
(f) To correct the amendment made to Section 3.08 thereof by
the Second Amendment Agreement so that the reference to "subsection (b)" in the
introduction to Section 2(f) of the Second Amendment Agreement shall be
corrected to read "subsection (a)".
(g) To amend Section 7.01 thereof by deleting the word "and"
at the end of clause (c), by substituting a semi-colon (";") for the period
(".") at the end of clause (d), and by adding a clause (e) and a clause (f) as
follows:
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(e) Promptly upon receipt thereof, copies of each
report submitted to the Board of Directors (or the Audit
Committee thereof) of the Company by independent public
accountants in connection with any annual, interim, or special
audit made by them of the consolidated financial statements of
the Company and its Subsidiaries including each report
submitted to the Board of Directors (or the Audit Committee
thereof) of the Company concerning its accounting practices
and systems and any final "management letter" submitted by
such accountants to management in connection with the annual
audit of the Company and its Subsidiaries; and
(f) as soon as available, but not later than 30 days
after the end of each calendar month, an accounts receivable
summary aging report for the Company and its Subsidiaries as
of the end of such month with comparative data for the
preceding two months and the same month of the preceding year.
(h) To amend and restate in their entirety clauses (j) and
(k) of Section 8.01 thereof as follows:
(j) purchase money security interests on
any property acquired or held by the Company or any of its
Subsidiaries in the ordinary course of business, securing
Indebtedness incurred or assumed for the purpose of financing
all or any part of the cost of acquiring such property;
provided that (i) any such Lien attaches to such property
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concurrently with or within 20 days after the acquisition
thereof (or, in the case of the construction of improvements
on real property, 20 days after substantial completion
thereof), (ii) such Lien attaches solely to the property so
acquired in such transaction, (iii) the principal amount of
the debt secured thereby does not exceed 100% of the cost of
such property, and (iv) the principal amount of the
Indebtedness secured by any and all such purchase money
security interests shall not at any time exceed that permitted
by Section 8.05(e); and (v) no such Lien which attaches after
February 28, 1997, is on any software or data (including data
pertaining to accounts receivable) used in connection with the
accounting or other management information systems of the
Company or any of its Subsidiaries;
(k) Liens securing obligations in
respect of capital leases on assets subject to such leases;
provided that (i) such capital leases are otherwise permitted
hereunder and that the Indebtedness secured by such Liens
shall not exceed that permitted by Section 8.05(e), and (ii)
no such Lien which attaches after February 28, 1997, is on any
software or data (including data pertaining to accounts
receivable) used in connection with the accounting or other
management information systems of the Company or any of its
Subsidiaries;
(i) To amend and restate in its entirety Section 8.03 thereof
as follows:
8.03 Consolidations and Mergers. The Company shall
not, and shall not suffer or permit any Subsidiary to, merge,
consolidate with or into, or convey, transfer,
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lease or otherwise dispose of (whether in one transaction or
in a series of transactions all or substantially all of its
assets (whether now owned or hereafter acquired) to or in
favor of any Person, except (a) the Company may consolidate
with or merge within or into any Wholly-Owned Subsidiary of
the Company, so long as the Company is the surviving
corporation and (b) any Wholly-Owned Subsidiary of the Company
may consolidate with or merge with or into another
Wholly-Owned Subsidiary of the Company; provided that, in the
case of (a) or (b), no default or Event of Default shall have
occurred and be continuing after giving effect to such merger
or consolidation, and after giving effect to such merger and
consolidation on a pro-forma basis, the Company would be in
compliance with Sections 8.15, 8.16, and 8.17.
(j) To amend Section 8.04 thereof by deleting clause (d)
therefrom.
(k) To amend and restate in their entirety clauses (d) and
(g) of Section 8.05 thereof as follows:
(d) Unsecured Indebtedness incurred by
Company so long as none of the Company's Subsidiaries is
obligated in respect thereof, whether as a guarantor or
otherwise; provided that the aggregate outstanding amount of
Indebtedness incurred after February 28, 1997, by the Company
and its Subsidiaries and not otherwise permitted under clauses
(a), (b), (c), (e), and (f) of this Section shall in no case
exceed $500,000;
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* * *
(g) Indebtedness not exceeding 15% of
the total assets of Subsidiaries of the Company which are not
incorporated under the laws of the United States or any
political subdivision thereof; provided that the aggregate
outstanding amount of Indebtedness incurred after February 28,
1997, by the Company and its Subsidiaries and not otherwise
permitted under clauses (a), (b), (c), (e), and (f) of this
Section shall in no case exceed $500,000.
(l) To amend and restate in its entirety Section 8.16 thereof
as follows:
8.16 Leverage Ratio. The Company shall not permit
its Leverage Ratio to be greater than 1.35 to 1.00 as at the
end of any fiscal quarter.
(m) To amend and restate in its entirety Section 8.17 thereof
as follows:
8.17 Fixed Charge Coverage Ratio. The Company shall
not permit its Fixed Charge Coverage Ratio to be less than (a)
1.20 to 1.00 for four fiscal quarter periods ending on or
before November 30, 1996, (b) 1.05 to 1.00 for the four fiscal
quarter period ending after November 30, 1996, and on or
before November 30, 1997, (c) 1.20 to 1.00 for four fiscal
quarter periods ending on February 28, 1998, and (d) 1.25 to
1.00 for four fiscal quarter periods ending after February 28,
1998.
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(n) To amend and restate in its entirety Section 8.18 thereof
as follows:
8.18 Cash Flow Leverage Ratio. The Company shall
not permit its Cash Flow Leverage Ratio to be greater than (a)
3.85 to 1.00 as at the of the four fiscal quarter period
ending on February 28, 1997, and (b) 3.00 to 1.00 as at the
end of any other four fiscal quarter period.
(o) To add a new Section 8.19 thereto as follows:
8.19 Charges. The Company shall not permit or incur
any extraordinary or special charges reducing income after
November 30, 1996, in excess of an aggregate amount of
$1,000,000 in any fiscal quarter (such aggregate amount to be
determined by adding the amount of all extraordinary items,
special or other charges reducing income and without netting
for extraordinary or special items increasing income or credit
for tax benefits), except that the Company may incur such
charges in an aggregate amount not exceeding (a) $17,000,000
with respect to the third fiscal quarter of the 1997 fiscal
year and (b) $17,000,000 in the aggregate with respect to the
fourth fiscal quarter of the 1997 fiscal year and the first
two fiscal quarters of the 1998 fiscal year.
(p) To add a new Section 8.20 thereto as follows:
8.20 Acquisitions. The Company shall not make, and
shall not permit any of its Subsidiaries to make, any
Acquisition after February 28, 1997,
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unless (a) the consideration payable by the Company or its
Subsidiaries in connection with such Acquisition shall consist
entirely of the common stock of the Company and (b) the total
value of the consideration paid by the Company and its
Subsidiaries with respect to all such Acquisitions shall not
exceed $5,000,000 in total amount.
(q) To add a new Section 8.21 thereto as follows:
8.21 Capital Expenditures. The Company shall not
permit Capital Expenditures to exceed $30,000,000 in the 1998
fiscal year or in any fiscal year thereafter.
(r) To add a new Section 8.22 thereto as follows:
8.22 Net Loss. The Company shall not incur a net
loss on a consolidated basis of greater than $17,000,000 with
respect to the fiscal quarter ending February 28, 1997.
(s) To amend Schedule 6.05 thereto to add the following
pending litigation:
The following shareholder class actions against the Company
and certain of its officers have been filed in the United
States District Court for the Northern District of California:
▇▇▇▇▇ ▇. ▇▇▇▇▇, et al., action no. C 96-2713 FMS; Polk ▇.
▇▇▇▇▇, et al., action no. C 96-2712 WDB; ▇.▇. ▇▇▇▇▇▇▇▇ Limited
Frozen Retirement Trust Dated September 1, 1992 ▇. ▇▇▇▇▇
Companies, Inc. et al., action no. C 96-2906 MMO.
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(t) To amend and restate in its entirety schedule 2 to
Exhibit C, the form of the Compliance Certificate, to be in the form attached
hereto.
Section 3. Effect. Except as specifically set forth herein, this
Agreement does not limit, modify, amend, waive, grant any consent with respect
to, or otherwise affect (a) any right, power or remedy of the Agent or any Bank
under the Credit Agreement or any other Loan Document, (b) any provision of the
Credit Agreement or any other Loan Documents all of which shall remain in full
force and effect and are hereby ratified and confirmed. This Agreement does
not entitle, or imply any consent or agreement to, any further or future
modification of, amendment to, waiver of, or consent with respect to any
provision of the Credit Agreement or any other Loan Document.
Section 4. Limited Waiver. Banks hereby waive any Events of Default
under Sections 8.17 or 8.18 of the Credit Agreement existing on the date of
this Agreement resulting from Borrower's failure to comply with such sections
of the Credit Agreement only to the extent that such Events of Default will not
exist after giving effect to the amendments set forth in Section 2 of this
Agreement.
Section 5. Amendment Fees. Contemporaneously upon the execution of
this Agreement, the Company shall pay to the Agent for the account of each Bank
in proportion to its Pro Rata Share, an amendment fee (the "Amendment Fee")
equal to $125,000. The fees payable pursuant to this Section are fully earned
and non-refundable when paid, without regard to whether this Agreement becomes
otherwise effective.
Section 6. Costs. The Company shall pay all fees, costs, and
expenses of any kind (including the reasonable fees and disbursements of
counsel and allocated costs for in-house legal services) incurred by the Agent
in connection with the negotiation, preparation, and execution of this
Agreement and the other documents contemplated hereby.
Section 7. Conditions of Effectiveness. This Agreement shall become
effective as of the date hereof when all of the conditions set forth below are
satisfied (or waived in accordance
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with the provisions of this Credit Agreement), and the Agent gives notice of
such effectiveness as below provided:
(a) Counterparts of this Agreement. Receipt by the Agent
of counterparts hereof signed by the Company and the Majority Banks;
(b) Amendment Fee. Receipt by the Agent for the account
of the Banks of the Amendment Fee;
(c) Payment of Certain Amounts. Payment of all fees,
costs, and expenses specified in Section 6 of this Agreement (including the
actual or estimated fees, costs, and expenses of counsel to the Agent) incurred
in connection with the preparation, negotiation, and execution of this
Agreement and the other documents contemplated hereby;
(d) Cross-Defaults. Receipt by the Agent of evidence
satisfactory to the Majority Banks that, after giving effect to this Agreement,
there will be no outstanding Default or Event of Default under Section 9.01(e)
of the Credit Agreement;
(e) Related Consents. Receipt by the Agent of the
consent and reaffirmation of the Subsidiary Guarantors, such consent and
reaffirmation to be in the form appended hereto;
(f) Officer's Certificate. Receipt by the Agent of a
certificate executed by a Responsible Officer confirming the accuracy of the
representations and warranties of Section 8 hereof; and
(g) Authorization Documents. Receipt by the Agent of a
resolution of the Company's Board of Directors authorizing the execution,
delivery, and performance of this Agreement, together with a certificate of the
Secretary or Assistant Secretary of the Company to the effect that such
resolution was duly adopted and remains in full force and effect, all in form
and substance satisfactory to the Agent and the Banks.
Promptly upon the occurrence thereof, the Agent shall notify the Company and
the Banks of the effectiveness of this Agreement, and such notice shall be
conclusive and binding as to the occurrence thereof on all parties hereto.
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Section 8. Representations and Warranties. The Company represents
and warrants to the Agent and each Bank that:
(a) The execution, delivery and performance by the
Company of this Agreement are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, and require no action by or
in respect of, or filing with, any governmental body, agency or official, and
the execution, delivery and performance by the Company of this Agreement do not
contravene, or constitute a default under, any provision of applicable law or
regulations or of the certificate or articles of incorporation or the by-laws
of the Company or any of its Subsidiaries, or any other material agreement,
judgment, injunction, order, decree or other instrument binding upon the
Company or any of its Subsidiaries or any assets of the Company or any of its
Subsidiaries.
(b) This Agreement constitutes the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its respective terms, except as enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect relating to creditors' rights, and to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity
or at law).
(c) After giving effect to this Agreement, no Event
of Default or Default has occurred and is continuing, and after giving effect
to this Agreement, the representations and warranties of the Company contained
in the Credit Agreement and the other Loan Documents delivered pursuant thereto
are true and correct in all material respects as of the date hereof as if made
on the date hereof (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and
correct as of such earlier date).
Section 9. Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original with the same effect as if all the signatures were on
the same instrument. Delivery of an executed counterpart of the signature page
to this Agreement by telecopier shall be effective as
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delivery of a manually executed counterpart of this Agreement. Any party
delivering an executed counterpart of the signature page to this Agreement by
telecopier shall thereafter promptly deliver a manually executed counterpart of
this Agreement, but the failure to deliver such manually executed counterpart
shall not affect the validity, enforceability, and binding effect of this
Agreement.
Section 10. Governing Law and Jurisdiction; Waiver of Jury Trial.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA AND IS SUBJECT TO THE PROVISIONS OF
SECTIONS 11.16 AND 11.17 OF THE CREDIT AGREEMENT, RELATING TO GOVERNING LAW AND
JURISDICTION AND WAIVER OF JURY TRIAL, THE PROVISIONS OF WHICH ARE BY THIS
REFERENCE HEREBY INCORPORATED HEREIN IN FULL.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in San Francisco, California, by
their proper and duly authorized officers as of the day and year first above
written.
COMPANY: ▇▇▇▇▇ COMPANIES, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Chief Financial Officer and
Executive Vice President
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
AGENT: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
BANKS: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
ABN AMRO BANK N.V.
SAN FRANCISCO INTERNATIONAL BRANCH
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Group Vice President
By /s/ ▇. ▇▇▇▇▇▇▇
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Title: Group Vice President
STANDARD CHARTERED BANK
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By /s/ ▇.▇. ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
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Title: Vice President
By /s/ ▇. ▇▇▇▇▇▇
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Title: Assistant Vice President
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REAFFIRMATION OF SUBSIDIARY GUARANTORS
Each of the undersigned (each, a "Subsidiary Guarantor," and, collectively, the
"Subsidiary Guarantors") acknowledges and agrees that such Subsidiary Guarantor
(including in its capacity, if any, as a Subsidiary Co-Borrower) has read and
is familiar with, and consents to, all of the terms and conditions of the
foregoing Second Amendment Agreement (the "Amendment Agreement"). In light of
the foregoing, each Subsidiary Guarantor confirms and agrees that all of the
terms and provisions of the Guaranty, dated as of December 15, 1995 (as amended
or modified to the date hereof, the "Subsidiary Guaranty"), executed by such
Subsidiary Guarantor in connection with the Credit Agreement are ratified and
reaffirmed, that the Subsidiary Guaranty shall continue in full force and
effect.
Although each Subsidiary Guarantor has been informed of the terms of the
Amendment Agreement, each Subsidiary Guarantor understands and agrees that
Agent and Banks have no duty to so notify any Subsidiary Guarantor or to seek
this or any future acknowledgement, consent, or reaffirmation, and nothing
contained herein shall create or imply any such duty as to any transactions,
past or future.
SUBSIDIARY GUARANTORS:
▇▇▇▇▇ TRANSPORTATION INTERNATIONAL
(H.K.) LTD.
By /s/ ▇▇▇▇▇ ▇▇▇
-----------------------------------
Title: Director
FCI HOLDINGS INTERNATIONAL B.V.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Director
-22-
23
▇▇▇▇▇ COMPANIES CANADA INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
▇▇▇▇▇ AIR FREIGHT, INC.
By /s/ ▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
-23-
