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Exhibit 10.5
[EXECUTION COPY]
CREDIT AGREEMENT AMENDMENT NO. 2
THIS CREDIT AGREEMENT AMENDMENT NO. 2, dated as of March 31, 1998 (this
"Amendment"), is made by and among Evenflo & Spalding Holdings Corporation
(formerly known as E&S Holdings Corporation), a company organized under the laws
of Delaware (the "Borrower"), the Lenders (as defined below) and Bank of America
National Trust & Savings Association ("Bank of America"), as the administrative
agent (the "Administrative Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the various financial institutions parties thereto
from time to time (collectively, the "Lenders"), Bank of America, as swing line
lender, as fronting lender and as administrative agent for the Lenders, Xxxxxxx
Xxxxx Capital Corporation, as documentation agent for the Lenders, and
NationsBank N.A. South, as syndication agent for the Lenders, have heretofore
entered into that certain Credit Agreement, dated as of September 30, 1996 (as
amended by the First Amendment to Credit Agreement, dated as of December 11,
1996, the "Existing Credit Agreement"); and
WHEREAS, the Borrower has requested, and the Lenders and the
Administrative Agent are willing, subject to the terms and conditions set forth
below, to amend the Existing Credit Agreement as provided below (the Existing
Credit Agreement, as amended pursuant to the terms of this Amendment, being
referred to as the "Amended Credit Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrower, the Lenders and the Administrative Agent hereby
agree as follows:
ARTICLE I
DEFINITIONS
SUBPART I.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Amended Credit Agreement" is defined in the second recital.
"Amendment" is defined in the preamble.
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"Amendment Effective Date Certificate" means the amendment effective date
certificate executed and delivered by the Borrower pursuant to Subpart 3.8,
substantially in the form of Annex I hereto.
"Borrower" is defined in the preamble.
"Existing Credit Agreement" is defined in the first recital.
"Lenders" is defined in the first recital.
"Second Amendment Effective Date" is defined in Subpart 3.1.
"Security Agreement" means the Security Agreement executed and delivered
by the Borrower and each Domestic Subsidiary pursuant to Subpart 3.6,
substantially in the form of Exhibit A hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.
SUBPART I.2. Other Definitions. Terms for which meanings are provided in
the Amended Credit Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS
Effective on (and subject to the occurrence of) the Second Amendment
Effective Date, certain provisions of the Existing Credit Agreement are hereby
amended in accordance with this Article II; except expressly as so amended by
this Amendment, the Existing Credit Agreement shall continue in full force and
effect in accordance with its terms.
SUBPART II.1. Amendments to Article I of the Existing Credit Agreement.
Article I of the Existing Credit Agreement ("Definitions") is amended in
accordance with Subparts 2.1.1 and 2.1.2.
SUBPART II.1.1. Section 1.1 of the Existing Credit Agreement ("Certain
Defined Terms") is amended by inserting in such Section the following
definitions in the appropriate alphabetical order:
"Bank Book" means the Bank Book, dated March 23, 1998 and delivered
by the Borrower to the Lenders on such date.
"Casualty Event" means the damage, destruction or condemnation, as
the case may be, of any property of the Borrower or any of its
Subsidiaries.
"Casualty Proceeds" means, with respect to any Casualty Event, the
amount of any insurance proceeds or condemnation awards received by the
Borrower or any of its Subsidiaries in connection therewith.
"Liquidity Facility" means the Liquidity Facility, dated as of March
30, 1998, among Spalding & Evenflo Companies, Inc., as the borrower, the
lenders parties thereto, Bank of America National Trust & Savings
Association, as the administrative agent, Xxxxxxx Xxxxx
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Capital Corporation, as the documentation agent and NationsBank N.A. South
as the syndication agent, as such Liquidity Facility may be amended,
modified, amended and restated or extended in accordance with its terms.
"Mortgage" means, collectively, each mortgage or deed of trust or
leasehold mortgage executed and delivered by the Borrower or any other
Obligor in favor of the Administrative Agent for the benefit of the
Lenders pursuant to the requirements of this Agreement, in form and
substance reasonably satisfactory to the Administrative Agent, in each
case as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Refinancing" has the meaning set forth in Section 8.4(m).
"Second Amendment" means the Credit Agreement Amendment No. 2,
dated as of March 31, 1998, among the Borrower, the Lenders parties
thereto and the Administrative Agent.
"Security Agreement" means the Security Agreement executed and
delivered pursuant to this Agreement, substantially in the form of Exhibit
A to the Second Amendment, as amended, supplemented, amended and restated
or otherwise modified from time to time.
SUBPART II.1.2. The following definitions in Section 1.1 of the Existing
Credit Agreement ("Certain Defined Terms") are amended as follows:
(a) "Agreement": the definition of "Agreement" is hereby amended
and restated as follows:
"'Agreement" means this Credit Agreement, as amended
(including as previously amended), supplemented, amended and
restated or otherwise modified from time to time."
(b) "Applicable Margin": the definition of "Applicable Margin"
is hereby amended and restated as follows:
"'Applicable Margin' means, with respect to the Revolving
Loans, the Tranche A Term Loans or the Commitment Fee, as of any
date, the rate per annum determined pursuant to the following
pricing grid (expressed in basis points), subject to the provisions
of this definition set forth below:
PRICING GRID
RATIO OF CONSOLIDATED
TOTAL DEBT TO EURODOLLAR RATE BASE RATE MARGIN COMMITMENT FEE
CONSOLIDATED EBITDA MARGIN
X > 6.0 250.0 150.0 50.0
X <=6.0, but > 5.5 225.0 125.0 42.5
X <= 5.5, but > 5.0 200.0 100.0 37.5
X <= 5.0, but > 4.5 162.5 62.5 37.5
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RATIO OF CONSOLIDATED
TOTAL DEBT TO EURODOLLAR RATE BASE RATE MARGIN COMMITMENT FEE
CONSOLIDATED EBITDA MARGIN
X <= 4.5, but > 4.0 137.5 37.5 35.0
X <= 4.0, but > 3.5 112.5 12.5 30.0
X <= 3.5, but > 3.0 87.5 0.0 25.0
X <= 3.0 62.5 0.0 20.0
The Applicable Margin for Tranche B Term Loans shall be: (i)
for so long as the ratio of Consolidated Total Debt to Consolidated
EBITDA is greater than 6.0:1.0: 3.00% for Eurodollar Loans and 2.00%
for Base Rate Loans, and (ii) for so long as the ratio of
Consolidated Total Debt to Consolidated EBITDA is less than or equal
to 6.0:1.0: 2.75% for Eurodollar Loans and 1.75% for Base Rate
Loans.
The Applicable Margin for Tranche C Term Loans shall be: (i)
for so long as the ratio of Consolidated Total Debt to Consolidated
EBITDA is greater than 6.0:1.0: 3.50% for Eurodollar Loans and 2.50%
for Base Rate Loans, and (ii) for so long as the ratio of
Consolidated Total Debt to Consolidated EBITDA is less than or equal
to 6.0:1.0: 3.25% for Eurodollar Loans and 2.25% for Base Rate
Loans.
The Applicable Margin for Tranche D Term Loans shall be: (i)
for so long as the ratio of Consolidated Total Debt to Consolidated
EBITDA is greater than 6.0:1.0: 4.00% for Eurodollar Loans and 3.00%
for Base Rate Loans, and (ii) for so long as the ratio of
Consolidated Total Debt to Consolidated EBITDA is less than or equal
to 6.0:1.0: 3.75% for Eurodollar Loans and 2.75% for Base Rate
Loans.
The Applicable Margin for Tranche A Term Loans, Revolving
Loans and the Commitment Fee, shall be determined pursuant to the
Pricing Grid above at such time. As set forth in the Pricing Grid,
"X" refers to the ratio of Consolidated Total Debt to Consolidated
EBITDA. For the purposes of determining the Applicable Margin with
respect to any Loan, the ratio of Consolidated Total Debt to
Consolidated EBITDA shall be determined (x) from and after the
effective date hereof to the date of the Compliance Certificate
referred to in clause (y), based on the highest such level set forth
above with respect to each Loan, and (y) on and after the date of
delivery of the Compliance Certificate delivered pursuant to clause
(b) of Section 7.2, based upon such certificate, and shall remain in
effect until such time as the next Compliance Certificate shall be
delivered (and, at such time, the Applicable Margin shall change
based on such next Compliance Certificate); provided, however, that,
if (i) any such Compliance Certificate is not delivered to the
Administrative Agent on or prior to the date required pursuant to
clause (b) of Section 7.2 and (ii) such Compliance Certificate
indicates a ratio of Consolidated Total Debt to Consolidated EBITDA
that would result in an Applicable Margin which is greater than the
Applicable Margin then in effect, then (A) such greater Applicable
Margin shall be deemed to be in effect for all purposes of this
Agreement from the date such Compliance Certificate was required to
be delivered to the Administrative Agent pursuant to clause (b) of
Section 7.2 and (B) in furtherance of the other terms of this
proviso, if the Borrower shall have made any payment in respect
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of interest or fees during the period from the date such Compliance
Certificate was required to be delivered to the actual date of
delivery of such Compliance Certificate, then the Borrower shall pay
in the form of a supplemental payment of interest and/or fees, an
amount which equals the difference between the amount of interest
and/or fees that would otherwise have been paid determined as if
such Compliance Certificate was delivered on the date such
Compliance Certificate was required to be delivered and the amount
of such interest and/or fees so paid, which supplemental payment of
interest and/or fees shall be due and payable on the actual date of
delivery of such Compliance Certificate."
(c) "Capital Expenditures": clause (c) of the proviso to the
definition of "Capital Expenditures" is hereby amended and restated as
follows"
" (c) the purchase or construction of property, plant or equipment
with Casualty Proceeds within one year of the receipt of such
proceeds; and";
(d) "Consolidated EBITDA": subclause (viii) of clause (b) is hereby
amended and restated as follows:
"(viii) the amount of any restructuring charge or reserve; provided,
that for any computation of such amount with respect to a period
ending on or after March 31, 1998, the maximum aggregate amount of
any such restructuring charge or reserve shall be limited to the
aggregate amounts projected as of March 23, 1998 in the Bank Book
(and, without duplication, such charges taken or disclosed in the
Bank Book in respect of periods ending prior to March 31, 1998)";
(e) "Interest Period": the definition of "Interest Period" is
amended by deleting the words "three or six months thereafter (or ending 9
or 12 months thereafter if available to all Lenders making such Loans as
determined by such Lenders in good faith based on prevailing market
conditions)" beginning in the third line thereof and by inserting the
words "or three months thereafter" after the words "on the date one, two,"
appearing in the third line thereof;
(f) "Loan Documents": the definition of "Loan Documents" is
hereby amended and restated as follows:
"'Loan Documents" means this Agreement, any Notes, the
Guaranty, the Pledge Agreement, each Mortgage, the Security
Agreement and the Fee Letter.'"
(g) "Pledge Agreement": the definition of "Pledge Agreement" is
hereby amended and restated as follows:
"'Pledge Agreement' means the Pledge Agreement to be duly
executed and delivered by the Borrower and each Domestic Subsidiary
which is a Material Subsidiary, substantially in the form of Exhibit
F, as amended, supplemented, amended and restated or otherwise
modified from time to time."
(h) "Restricted Subsidiary": the definition of "Restricted
Subsidiary" is amended by deleting the words "which is not an
Unrestricted Subsidiary" in the Credit Agreement; and
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(i) "Unrestricted Subsidiary": the definition of "Unrestricted
Subsidiary" is deleted from Section 1.1 of the Credit Agreement, and all
references to "Unrestricted Subsidiary" shall be deleted.
SUBPART II.2. Amendments to Article II of the Existing Credit
Agreement. Article II of the Existing Credit Agreement ("The Credits") is
amended in accordance with Subpart 2.2.1.
SUBPART II.2.1. Section 2.8 of the Existing Credit Agreement ("Mandatory
Prepayments of Loans") is amended as follows:
(a) clause (a) thereof is hereby amended and restated as follows:
"(a) Asset Dispositions. In the event that the Net Disposition
Proceeds of any Disposition (such Disposition, a "Current
Disposition") (other than a Disposition permitted pursuant to clause
(a), (b) or (c) of Section 8.2), and of all prior Dispositions as to
which a prepayment has not yet been made under this clause (a),
shall equal or exceed $250,000 then, the Borrower or such Restricted
Subsidiary shall, concurrently with the receipt of the Net
Disposition Proceeds of the Current Disposition, apply 100% of the
Net Disposition Proceeds of the Current Disposition and all such
prior Dispositions in accordance with clause (f).";
(b) clause (b) thereof is hereby amended by replacing the words
"Term Loans" in the fourth line thereof with the words "Loans and certain
other Indebtedness in accordance with clause (f),";
(c) clause (c) is amended by replacing the words "Term Loans" in the
sixth line thereof with the words "Loans and certain other Indebtedness in
accordance with clause (f),";
(d) a new clause (d) is added as follows:
"(d) Casualty Proceeds. If during any Fiscal Year one or more
Casualty Events shall have occurred for which the Borrower or any
Restricted Subsidiary shall receive Casualty Proceeds in excess of
$1,000,000 during such Fiscal Year, then the Borrower or such
Restricted Subsidiary may (provided that no payment Default or Event
of Default is continuing at such time), within 365 days after the
receipt by the Borrower or such Restricted Subsidiary of such
Casualty Proceeds, reinvest up to 100% of such Casualty Proceeds to
replace or repair the assets that were the subject of such Casualty
Event(s). Any Casualty Proceeds that are not reinvested in
accordance with the previous sentence shall be applied to prepay
Loans and certain other Indebtedness in accordance with clause (f),
(x) in the case of the continuance of a payment Default or an Event
of Default at such time, on the day such Casualty Proceeds are
received, in an amount equal to 100% of such Casualty Proceeds, and
(y) otherwise on the Business Day immediately succeeding the last
day of such 365-day period, in an aggregate amount equal to the
portion of such Casualty Proceeds not so reinvested. ";
(e) the previously existing clause (d) thereof is relettered as
"clause (f)" and is hereby amended and restated as follows:
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"(f) Application of Proceeds. Any prepayment made pursuant to
clauses (a), (b), (c) and (d) shall be applied first, to prepay Term
Loans, allocated among the Term Loans as follows: (i) first, to the
next two scheduled and unpaid principal installments of the Tranche
A Term Loans (and any Tranche B Term Loan, Tranche C Term Loan and
Tranche D Term Loan installments payable on or before such
installment payment dates) in direct order of maturities, and (ii)
second, to the remaining installments of the Term Loans pro rata,
and, in each case, related interest on the Term Loans, second, to
reduce outstandings under the Commitment Amount (as defined in the
Liquidity Facility) under the Liquidity Facility, third to any other
Obligations (as defined in the Liquidity Facility) under the
Liquidity Facility, fourth, to prepay Revolving Loans and reduce the
related Revolving Commitment and fifth, to pay any other
Obligations"; and
(f) the previously existing clause (f) thereof is relettered as
"clause (h)" and is amended by deleting in its entirety the parenthetical
in the first sentence thereof.
SUBPART II.3. Amendments to Article VII of the Existing Credit Agreement.
Article VII of the Existing Credit Agreement ("Affirmative Covenants") is
amended in accordance with Subparts 2.3.1 through 2.3.4.
SUBPART II.3.1. Section 7.1 of the Existing Credit Agreement ("Financial
Statements") is amended as follows:
(a) a new clause (c) is added as follows:
"(c) promptly after available, but not later than 30 days
after the end of each calendar month, a copy of (i) the unaudited
consolidated balance sheet of the Borrower and its Restricted
Subsidiaries as of the end of such month and the related
consolidated statements of earnings, cash flows and, to the extent
prepared, shareholders' equity for the period commencing on the
first day and ending on the last day of such month and (ii) such
divisional and segment net sales and EBITDA reporting information
prepared by the Borrower consistent with the Borrower's normal
monthly internal reporting, certified by a Responsible Officer as
fairly presenting in all material respects (subject to year-end
audit adjustments) the financial position and the results of
operations of the Borrower and its Restricted Subsidiaries as of the
date thereof."
SUBPART II.3.2. Section 7.11 of the Existing Credit Agreement ("Future
Subsidiaries") is amended and restated as follows:
"7.11 Future Subsidiaries. Without limiting the effect of any
provision contained herein (including Section 8.3), upon any Person
becoming, after the date hereof, a Subsidiary of the Borrower (other
than any Subsidiary that is not a Material Subsidiary), including
any Person that was a Restricted Subsidiary, but not a Material
Subsidiary, but which becomes a Material Subsidiary through internal
growth or otherwise, or upon the Borrower or any Subsidiary
acquiring additional capital stock of any existing Subsidiary which
is then pledged under the Pledge Agreement, at the Borrower's
expense:
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(a) regardless of whether such Person is a Material
Subsidiary, in the event such Person is a Domestic Subsidiary, the
Borrower shall cause such Person, if not theretofore a party to the
Guaranty, to execute a supplement to (i) the Guaranty for the
purpose of becoming a guarantor thereunder and (ii) the Security
Agreement for the purpose of becoming a grantor thereunder, together
with acknowledgment copies of Uniform Commercial Code financing
statements (form UCC-1) executed and delivered by such Subsidiary
naming such Subsidiary as the debtor and the Administrative Agent as
the secured party, or other similar instruments or documents, filed
under the Uniform Commercial Code of all jurisdictions as may be
necessary or, in the opinion of the Administrative Agent, desirable
to perfect the security interest of the Administrative Agent
pursuant to the Security Agreement; and
(b) (i) in the event such Person is a Domestic Subsidiary of
the Borrower or a Material Subsidiary which is a direct Foreign
Subsidiary of the Borrower or a Domestic Subsidiary of the Borrower,
the Borrower or such applicable Domestic Subsidiary shall, pursuant
to the Pledge Agreement, pledge to the Administrative Agent for the
benefit of the Lenders (free and clear of any other pledges relating
to such Person or any of its Subsidiaries) all of the outstanding
shares of such capital stock of such Subsidiary owned directly by it
(provided, that, in the event such Subsidiary is a Foreign
Subsidiary, the Borrower or Domestic Subsidiary shall not be
required to pledge more than 65% of the outstanding shares of the
capital stock of such Foreign Subsidiary), along with undated stock
powers for such certificates, executed in blank (or, if any such
shares of capital stock are uncertificated, confirmation and
evidence satisfactory to the Administrative Agent that the security
interest in such uncertificated securities has been perfected by the
Administrative Agent in accordance with Section 9-115 of the Uniform
Commercial Code as in effect in the State of New York or any similar
law which may be applicable); and
(ii) in the event such Person is a Material Subsidiary and a direct
Foreign Subsidiary of the Borrower or any Domestic Subsidiary of the
Borrower, the Borrower or such applicable Domestic Subsidiary shall,
within 60 days of such Person having become a Material Subsidiary of
the Borrower or such Domestic Subsidiary (and, in the case of any
such existing direct Foreign Subsidiary which is a Material
Subsidiary as of the Second Amendment Effective Date, within 60 days
of the Second Amendment Effective Date) execute and deliver a
supplement to the Pledge Agreement, which supplement shall, under
the law of incorporation of such Foreign Subsidiary, be effective to
create and perfect a valid security interest in 65% of the
outstanding shares of the capital stock of such Foreign Subsidiary,
accompanied by legal opinions of outside counsel to the Borrower in
respect of such collateral, reasonably satisfactory to the Agents."
SUBPART II.3.3. A new Section 7.15 is added as follows
"7.15. Real Estate. Within 45 days after the Second Amendment
Effective Date (or, with respect to the selection by the Agents of a
plant in substitution for any other single plant specified below
(and only with respect to such plant) in accordance with the terms
hereof, 45 days after the selection of such plant), the Borrower
shall cause to be delivered a duly executed Mortgage (together with
documentation requested by and reasonably satisfactory to the
Agents) with respect to the plant located in Chicopee, Massachusetts
and the plant located in Piqua, Ohio (or any other two plants
selected by the Agents for which the provision of a security
interest thereon is
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reasonably practicable), accompanied by legal opinions of outside
counsel to the Borrower in respect of such collateral, reasonably
satisfactory to the Agents, all at the Borrower's expense."
SUBPART II.3.4. A new Section 7.16 is added as follows
"7.16. Pledged Stock of Foreign Subsidiaries. Within 60 days
after the Closing Date, the Borrower shall promptly deliver, or
cause to be delivered, appropriate supplemental security
documentation (consistent with the corresponding terms of the Pledge
Agreement) under the law of the jurisdiction of incorporation of
each Foreign Subsidiary which is a direct Subsidiary of the Borrower
or a Domestic Subsidiary to the Administrative Agent, duly executed
and delivered by an Authorized Officer of the pledgor thereof, all
in form and substance satisfactory to the Administrative Agent."
SUBPART II.4. Amendments to Article VIII of the Existing Credit Agreement.
Article VIII of the Existing Credit Agreement ("Negative Covenants") is amended
in accordance with Subparts 2.4.1 through 2.4.7.
SUBPART II.4.1. Section 8.1 of the Existing Credit Agreement ("Limitation
on Liens") is amended as follows:
(a) clause (l) thereof is amended by inserting "in an aggregate
amount not to exceed $5,000,000 at any time outstanding immediately
following the word "Indebtedness" in the third line of subclause (i)
thereof;
(b) the provision set forth in clause (m) thereof is deleted in its
entirety and replaced with the word "Reserved.";
(c) clause (q) thereof is amended by inserting "under the Liquidity
Facility (including any extensions thereof and any Refinancing permitted
pursuant to Section 8.4(m) (plus accrued interest and Obligations (as
defined in the Liquidity Facility) under the Liquidity Facility or such
Refinancing from time to time) plus the Lien on the plant located in
Chicopee, Massachusetts, existing on the date hereof and securing an
aggregate principal amount not to exceed $6,500,000;" at the end thereof;
and
(d) a new clause (t) is added as follows:
"(t) Liens placed on assets of any Foreign Subsidiary to
secure Indebtedness of a Foreign Subsidiary permitted pursuant to
Section 8.4(g), up to an aggregate principal amount at any time of
$50,000,000 and only to the extent that such Indebtedness is not
guaranteed by the Borrower or a Domestic Subsidiary (without
duplication)."
SUBPART II.4.2. Section 8.2 of the Existing Credit Agreement
("Consolidations and Mergers; Sales of Assets") is amended as follows:
(a) clause (b) thereof is amended by inserting "; provided that
neither the Borrower nor any Domestic Subsidiary may sell or otherwise
transfer (i) its assets to any Foreign
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Subsidiary other than in the ordinary course of business or (ii) material
assets to one or more Subsidiaries which are not Guarantors" at the end
thereof;
(b) subclause (ii) of the proviso to clause (d) thereof is amended
by adding the words "; provided that in no event shall more than 15% of
the total consideration for any such Disposition consist of non-cash
consideration" at the end of such subclause; and
(c) clause (d) thereof is amended by adding a new subclause (iv) to
the proviso thereof as follows:
"(iv) any Disposition to an Affiliate of the Borrower or any
Restricted Subsidiary having an aggregate purchase price of
$10,000,000 or more shall require in advance of such Disposition an
independent fairness opinion with respect thereto, a copy of which
shall be delivered in advance of such Disposition to the Lenders,
from a firm reasonably acceptable to the Agents."
SUBPART II.4.3. Section 8.3 of the Existing Credit Agreement ("Loans,
Acquisitions and Investments") is amended as follows:
(a) clause (b) thereof is amended and restated as follows:
"(b) Investments in the Borrower or in any of its Subsidiaries
as reasonably necessary to conduct its business operations or as
necessary to effect the restructuring of the Borrower and its
Subsidiaries as contemplated;"
(b) clause (d) thereof is amended by deleting the number
"$5,000,000" appearing therein and inserting "$2,000,000" in replacement
therefor;
Section 8.3(h) is amended and restated as follows:
"(h) Investments by the Borrower or any Subsidiary constituting an
Acquisition which has been approved in writing by the Majority Lenders
(any such Acquisition so approved, a "Permitted Acquisition");"; and
(c) clause (i) thereof is hereby amended and restated as follows:
"(i) so long as no Event of Default or payment Default exists
and is continuing at the time of the making of such Investment (or
would occur immediately after giving effect thereto), additional
Investments by the Borrower or its Restricted Subsidiaries in an
aggregate amount not to exceed $1,000,000 at any time."
SUBPART II.4.4. Section 8.4 of the Existing Credit Agreement ("Limitation
on Indebtedness") is amended as follows:
(a) clause (c) thereof is amended by inserting "; provided that such
Indebtedness shall (i) if it is Indebtedness of the Borrower, be
subordinated to the Obligations and the Indebtedness under the Liquidity
Facility on terms reasonably satisfactory to the Agents and (ii) to the
extent it is Indebtedness held by the Borrower, be evidenced by one or
more promissory notes in form and substance reasonably satisfactory to the
Administrative Agent, which have
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been duly executed, delivered and endorsed to the order of the
Administrative Agent in pledge pursuant to the Pledge Agreement;" at the
end thereof;
(b) subclause (ii) of the proviso to clause (d) is amended by
substituting the number "$75,000,000" with the number "$50,000,000" and by
adding at the end of such subclause the words "less the principal amount
of any such Indebtedness which is secured by a Lien permitted pursuant to
Section 8.1(t)";
(c) clause (e) thereof is amended by inserting "and the tenor
thereof is not in any respect shortened" immediately following the
parenthetical in subclause (i) of the proviso thereof;
(d) the provision set forth in clause (h) thereof is deleted in its
entirety and replaced with the word "Reserved.";
(e) the provision set forth in clause (i) thereof is deleted in its
entirety and replaced with the word "Reserved.";
(f) clause (l) thereof is amended by adding the word "unsecured"
after the word "additional" and by deleting the number "$50,000,000"
appearing therein and inserting "$25,000,000"; and
(g) a new clause (m) will be added as follows:
"(m) additional first-priority secured Indebtedness of the
Borrower and its Restricted Subsidiaries not to exceed $25,000,000
in principal amount at any time outstanding, incurred under the
Liquidity Facility (as amended or extended) and any refinancing
thereof (the "Refinancing") provided, that, as to any Refinancing,
(i) the Liquidity Facility has been repaid (or, concurrently with
the Refinancing, will be repaid) in full, (ii) the principal amount
of the Refinancing is not greater than $25,000,000, (iii) prior to
the Refinancing, the Borrower shall have requested the Agents to
amend or extend the Liquidity Facility and one or more of the Agents
have not agreed to such amendment or extension, (iv) the
institutions providing the Refinancing shall not include any person
which is not a Lender under this Agreement immediately prior to the
Refinancing, and (v) the Lien on any property securing the
Refinancing shall not be prior to the Lien securing the
Obligations."
SUBPART II.4.5. Section 8.5 of the Existing Credit Agreement ("Restricted
Payments") is amended as follows:
(a) the provision set forth in clause (b) thereof is deleted in its
entirety and replaced with the word "Reserved.";
(b) the provision set forth in clause (c) thereof is deleted in its
entirety and replaced with the word "Reserved.";
(c) clause (e) thereof is amended by inserting "all as in effect on
the Second Amendment Effective Date (as defined in the Second Amendment)"
at the end thereof; and
-11-
12
(d) a new clause (g) will be added as follows:
"(g) Notwithstanding anything to the contrary in this Section
8.5, no Subsidiary shall declare or make any dividend payment unless
such dividend is payable to the Borrower or a wholly-owned
Subsidiary of the Borrower."
SUBPART II.4.6. Section 8.6 of the Existing Credit Agreement ("Financial
Covenants") is amended as follows:
(a) the table appearing in clause (a) thereof is amended as follows:
(i) the ratio set forth opposite "March 31, 1998" shall be amended to be
"1.35 : 1.00", (ii) the ratio set forth opposite "June 30, 1998" shall be
amended to be "1.30 : 1.00", and (iii) the ratio set forth opposite the
"September 30, 1998" shall be amended to be "1.25 : 1.00";
(b) the table appearing in clause (b) thereof is amended and
restated in its entirety to read as follows:
"Date Ratio
----- -----
September 30, 1997
and the last day of each
December, March, June and
September thereafter through
June 30, 1998 1.25 : 1.00
September 30, 1998 1.00 : 1.00
December 31, 1998
and the last day of each
December, March, June and
September thereafter through
June 30, 2000 1.25 : 1.00
September 30, 2000
and the last day of each
December, March, June and
September thereafter 1.35 : 1.00"
(c) the table appearing in clause (c) thereof is amended as follows:
(i) the ratio set forth opposite "March 31, 1998" shall be amended to be
"7.75 : 1.00", (ii) the ratio set forth opposite "June 30, 1998" shall be
amended to be "7.75 : 1.00", and (iii) the ratio set forth opposite the
"September 30, 1998" shall be amended to be "7.75 : 1.00";
SUBPART II.4.7. A new Section 8.9 of the Existing Credit Agreement is
added as follows:
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13
"8.9 Assets of the Borrower. The Borrower shall not own beneficially
or of record any material assets other than the capital stock of its
Subsidiaries (and the assets represented by the ownership of such capital
stock)."
SUBPART II.5. Amendments to Article IX of the Existing Credit
Agreement. Article IX of the Existing Credit Agreement ("Events of Default")
is amended in accordance with Subpart 2.5.1.
SUBPART II.5.1. Section 9.1 of the Existing Credit Agreement ("Event of
Default") is amended as follows:
(a) clause (c) thereof is hereby amended and restated as follows:
" (c) Specific Defaults. The Borrower fails to perform or
observe any term, covenant or agreement contained in any of
clause (a)(i) of Section 7.3 or Sections 8.1, 8.2 through 8.8,
Section 4 of the Security Agreement or Section 8 of the Pledge
Agreement; or"
(b) clause (d) thereof is amended by (i) deleting "Borrower fails to
perform or observe any term, covenant or agreement contained in Section
8.1 and such default shall continue unremedied for 10 days after the date
upon which a Responsible Officer of the Borrower has actual knowledge or
receives written notice thereof; or the", and (ii) inserting "(i) a
Responsible Officer of the Borrower has actual knowledge thereof or (ii)"
immediately following the words "upon which" appearing in the sixth line
thereof;
(c) clause (k) thereof is amended and restated as follows:
"(k) Collateral. Any provision of the Pledge Agreement, the
Security Agreement or any Mortgage shall for any reason (other than
as a result of acts or omissions of the Administrative Agent or any
Lender) cease to create a valid security interest in the collateral
purported to be covered thereby (other than as to any such
collateral which is immaterial) or any material provision of the
Pledge Agreement, the Security Agreement, any Mortgage or the
Guaranty shall cease to be valid and binding on or enforceable
against the Borrower or any other Obligor party thereto, or the
Borrower or any other Obligor shall deny or disaffirm in writing its
obligations under the Pledge Agreement, the Security Agreement, any
Mortgage or the Guaranty."
SUBPART II.6. Amendments to Article X of the Existing Credit Agreement.
Article X of the Existing Credit Agreement ("The Agents") is amended in
accordance with Subpart 2.6.1.
SUBPART II.6.1. Section 10.11(a) of the Existing Credit Agreement
("Collateral Matters") is amended by adding the words ", the Security Agreement,
the Mortgages" after the words "to take any action with respect to any
collateral security" in the third line thereof.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
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SUBPART III.1. Second Amendment Effective Date. This Amendment, and the
amendments and modifications contained herein, shall be and become effective on
the date (the "Second Amendment Effective Date") when each of the conditions set
forth in this Article III shall have been fulfilled to the satisfaction of the
Administrative Agent.
SUBPART III.2. Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Amendment, duly executed and delivered on
behalf of the Borrower and each of the Majority Lenders.
SUBPART III.3. Resolutions; Incumbency. The Administrative Agent shall
have received (i) copies of the resolutions of the board of directors of the
Borrower authorizing the execution, delivery and performance of this Amendment,
each other Loan Document to be delivered by the Borrower in connection herewith
and the transactions contemplated hereby and thereby, certified as of the Second
Amendment Effective Date by the Secretary or an Assistant Secretary of the
Borrower, together with a certificate of the Secretary or Assistant Secretary of
the Borrower dated the Second Amendment Effective Date, certifying the names and
true signatures of the officers of the Borrower authorized to execute, deliver
and perform, as applicable, this Amendment, and such other Loan Documents to be
delivered by it in connection herewith; and (ii) copies of the resolutions of
the board of directors of each Subsidiary authorizing the delivery, execution
and performance by such Subsidiary of the Loan Documents to be delivered by it
in connection herewith, certified as of the Second Amendment Effective Date by
the Secretary or an Assistant Secretary of such Subsidiary, together with a
certificate of the Secretary or Assistant Secretary of such Subsidiary dated the
Second Amendment Effective Date, certifying the names and true signatures of the
officers of such Subsidiary authorized to execute, deliver and perform such Loan
Documents.
SUBPART III.4. Organization Documents. The Administrative Agent shall
have received the articles or certificate of incorporation and the bylaws of
each of Obligors for which such documents have not previously been delivered and
certified, in each case, as in effect on the Second Amendment Effective Date,
certified by the Secretary or Assistant Secretary of such Person as of the
Second Amendment Effective Date, together with a certification that any
documents which were previously delivered are in full force and effect and have
not, since the date of such delivery, been amended.
SUBPART III.5. Approvals. All necessary material governmental,
shareholders' and third-party approvals in connection with the execution,
delivery and performance of this Amendment and the other Loan Documents
delivered in connection herewith.
SUBPART III.6. Other Loan Documents. The Administrative Agent shall
have received:
(a) (x) an affirmation and consent by each of the Guarantors and (x)
a supplement to the Guaranty to add one or more additional Guarantors
thereunder and, in the case of (x) and (y), confirming that upon the sale
or other disposition of any Guarantor thereunder in accordance with the
terms of the Amended Credit Agreement, such Guarantor shall be
automatically released from all obligations thereunder to the extent that
such sale or other disposition causes such Guarantor to cease being a
Domestic Subsidiary of the Borrower,
(b) a Pledge Agreement by the Borrower and each applicable Domestic
Subsidiary, together with (i) the certificates, evidencing all of the
issued and outstanding shares of capital stock of the Subsidiary being
pledged thereby and (ii) executed blank undated stock powers, and
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15
(c) a Security Agreement, executed by the Borrower and each Domestic
Subsidiary in favor of the Administrative Agent.
SUBPART III.7. Filings. All UCC and intellectual property filings
necessary or, in the opinion of the Administrative Agent, desirable to perfect
and/or to maintain the perfection of the Liens (as defined in the Loan
Documents) provided for in the Loan Documents shall have been executed by the
Borrower and each applicable Subsidiary and delivered to the Administrative
Agent for filing at the Borrower's expense.
SUBPART III.8. Amendment Effective Date Certificate. The Administrative
Agent shall have received, with counterparts for each Agent, the Amendment
Effective Date Certificate, dated the Second Amendment Effective Date and duly
executed and delivered by an Authorized Officer of the Borrower, in which
certificate the Borrower shall agree and acknowledge that the statements made
therein shall be deemed to be true and correct (in all material respects)
representations and warranties of the Borrower made as of such date, and, at the
time each such certificate is delivered, such statements shall in fact be true
and correct.
SUBPART III.9. Legal Opinions. The Administrative Agent shall have
received a favorable legal opinion of (i) Xxxxxxx Xxxxxxx & Xxxxxxxx, special
counsel to the Obligors and (ii) the General Counsel to the Borrower, in each
case, addressed to the Administrative Agent and the Lenders and dated the Second
Amendment Effective Date, substantially in the forms of Annex A-1 and Annex A-2,
respectively.
SUBPART III.10. Fees and Expenses. The Administrative Agent shall have
received all costs, fees (including, for each Lender party hereto, an amendment
fee equal to .25% of such Lender's Commitment) and expenses due and payable
pursuant to Subpart 5.4 (to the extent then invoiced) and pursuant to the
Existing Credit Agreement (including all previously invoiced fees and expenses).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SUBPART IV.1. Representations and Warranties. In order to induce the
Lenders and the Administrative Agent to enter into this Amendment, the Borrower
hereby represents and warrants to each Agent and each Lender, as of the date
hereof, as follows:
(a) the representations and warranties contained in Article VI of
the Existing Credit Agreement (after giving effect to the amendments set
forth herein) and in each of the other Loan Documents are true and correct
in all material respects on and as of such date, as though made on and as
of such date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date);
(b) no Default or Event of Default exists or would result from the
amendments or modifications set forth in Article II or the other
transactions contemplated hereby or from the grant or perfection of the
Lien of the Administrative Agent and the Lenders on the collateral
security provided under the Loan Documents delivered in connection
herewith;
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(c) except as disclosed to the Lenders on March 23, 1998 or as
disclosed in the Bank Book, no Material Adverse Change has occurred since
September 30, 1997 and no material adverse change has occurred since
September 30, 1997 with respect to the business, assets, operations,
results of operations, condition (financial or otherwise) or prospects of
the Borrower or the Borrower and its Subsidiaries, taken as a whole; and
(d) neither the Borrower nor any of its Subsidiaries is subject to
any material litigation or governmental proceeding with respect to the
transactions contemplated hereby and no injunction or restraining order
exists with respect to such transactions.
SUBPART IV.2. Full Disclosure. (a) All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of the Borrower
or any of its Subsidiaries in writing to any Agent and/or any Lender on or
before the Secondment Amendment Effective Date (including all information
contained herein and in the other Loan Documents delivered in connection
herewith) for purposes of or in connection with this Amendment or any
transactions contemplated herein is true and complete in all material respects
on the date as of which such information is dated or certified and not
incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided, it being understood and
agreed that for purposes of this clause (a), such factual information shall not
include projections and pro forma financial information.
(b) The projections and pro forma financial information contained in the
factual information referred to in clause (a) above were or are based on good
faith estimates and assumptions believed to be reasonable at the time made, it
being recognized by the Lenders that such projections as to future events are
not to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ significantly from the projected
results.
ARTICLE V
MISCELLANEOUS
SUBPART V.1. Full Force and Effect; Limited Amendment. Except as expressly
amended hereby, all of the representations, warranties, terms, covenants,
conditions and other provisions of the Existing Credit Agreement and the other
Loan Documents shall remain unamended and unwaived and shall continue to be, and
shall remain, in full force and effect in accordance with their respective
terms. The amendments set forth herein shall be limited precisely as provided
for herein to the provisions expressly amended herein and shall not be deemed to
be an amendment to, consent to or modification of any other term or provision of
the Existing Credit Agreement, any other Loan Document referred to therein or
herein or of any transaction or further or future action on the part of the
Borrower or any other Obligor which would require the consent of the Lenders
under the Existing Credit Agreement or any of the other Loan Documents.
SUBPART V.2. Loan Document Pursuant to Existing Credit Agreement. This
Amendment is a Loan Document executed pursuant to the Existing Credit Agreement
and shall be construed, administered and applied in accordance with all of the
terms and provisions of the Existing Credit Agreement (and, following the date
hereof, the Amended Credit Agreement). Any breach of any representation or
warranty or covenant or agreement contained in this Amendment shall be deemed to
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be an Event of Default for all purposes of the Existing Credit Agreement and the
other Loan Documents.
SUBPART V.3. Further Assurances. The Borrower hereby agrees that it will
take any action that from time to time may be reasonably necessary to effectuate
the agreements contemplated herein.
SUBPART V.4. Fees and Expenses. The Borrower shall pay all reasonable
out-of-pocket expenses incurred by the Administrative Agent in connection with
the preparation, negotiation, execution and delivery of this Amendment and the
documents and transactions contemplated hereby, including the reasonable fees
and disbursements of Mayer, Brown, and Xxxxx, as counsel for the Administrative
Agent and of Wachtell, Lipton, Xxxxx & Xxxx, as counsel for the Administrative
Agent.
SUBPART V.5. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or any provisions hereof.
SUBPART V.6. Counterparts. This Amendment may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
SUBPART V.7. Cross-References. References in this Amendment to any
Article or Subpart are, unless otherwise specified or otherwise required by
the context, to such Article or Subpart of this Amendment.
SUBPART V.8. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART V.9. No Third Parties Benefited. This Amendment is made and
entered into for the sole protection and legal benefit of the Borrower, the
Lenders, each Agent and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Amendment or any of the other Loan Documents.
SUBPART V.10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
EVENFLO & SPALDING HOLDINGS
CORPORATION (formerly known as E&S
Holdings Corporation), as the
Borrower
By
----------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Administrative Agent
By
----------------------------------
Name:
Title:
Lenders:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By
----------------------------------
Name: Xxxxx Xxxxxx
Title:Vice President
XXXXXXX XXXXX CAPITAL CORPORATION
By
----------------------------------
Name: E.T. Xxxxx
Title:Vice President
19
XXXXXXX XXXXX DEBT STRATEGIES FUND,
INC.
By
----------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title:Authorized Signatory
XXXXXXX XXXXX DEBT STRATEGIES
PORTFOLIO
By: Xxxxxxx Xxxxx Asset
Management, L.P., as
Investment Advisor
By
----------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title:Authorized Signatory
SENIOR DEBT PORTFOLIO
(c/o Boston Management and
Research Co.)
By
----------------------------------
Name: Xxxxx X. Page
Title:Vice President
NATIONSBANK N.A. SOUTH
By
----------------------------------
Name: Xxxxxxxx Xxxxx
Title:Attorney in Fact
THE BANK OF NOVA SCOTIA
By
----------------------------------
Name: X.X. Xxxxx
Title:Vice President
20
BANKERS TRUST COMPANY
By
----------------------------------
Name: Xxxx Xx Xxxxx
Title:Assistant Vice President
CITY NATIONAL BANK
By
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:Vice President
FLEET NATIONAL BANK
By
----------------------------------
Name: Xxxxxx X. Xxxxxxxx XX
Title:Senior Vice President
SOCIETE GENERALE
By
----------------------------------
Name: Xxxx X. Xxxxx
Title:Director
XXXXX FARGO BANK, N.A.
By
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title:Vice President
21
CIBC, INC.
By
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:Authorized Signatory
ROYAL BANK OF CANADA
By
----------------------------------
Name: Xxxxxxx Xxxx
Title:Senior Manager
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:Senior Vice President &
Director
XXX XXXXXX CLO I, LTD.
By XXX XXXXXX AMERICAN CAPITAL
MANAGEMENT INC., as Collateral
Manager
By
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:Senior Vice President &
Director
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By
----------------------------------
Name: Xxxx Xxxxx
Title:Senior Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
22
By
----------------------------------
Name: Takuya Honjo
Title:Senior Vice President
LTCB TRUST COMPANY
By
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title:Senior Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By
----------------------------------
Name: Xxxx X. Xxxxxxx
Title:Managing 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
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
PRIME INCOME TRUST
By
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title:Assistant Vice President
AERIES FINANCE, LTD.
23
By
----------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title:Director
ABN AMRO BANK N.V.
By
----------------------------------
Name: Xxxxxx X. Nipsman
Title:Vice President
By
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title:Vice President
BANK OF TOKYO -- MITSUBISHI TRUST
COMPANY
By
----------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title:Senior Vice President
BANQUE PARIBAS
By
----------------------------------
Name: Xxxx X. XxXxxxxxx, III
Title:Vice President
By
----------------------------------
Name: Xxxxx Xxxxxxxxx
Title:Vice President
BANK BOSTON, N.A. f/k/a
BAYBANK, N.A.
24
By
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title:Vice President
CAPTIVA FINANCE, LTD.
By
----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title:Director
CREDIT AGRICOLE INDOSUEZ
By
----------------------------------
Name: Xxxxx Xxxxx, F.V.P.
Title:Head of Corporate Banking
- Chicago
By
----------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title:First Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By
----------------------------------
Name: Xxxxxx Xxx
Title:First Vice President
CYPRESS TREE INVESTMENT
25
PARTNERS I, LTD
By: Cypress Tree
Investment Management
Co., as Portfolio
Manager
By
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title:Managing Director
THE DAI-ICHI KANGYO BANK, LTD.
By
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title:Vice President & Group
Leader
DLJ CAPITAL FUNDING, INC.
By
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:Managing Director
XXXXXXX SACHS CREDIT PARTNERS L.P.
By
----------------------------------
Name: Xxxxxxx X. Xxxx
Title:Authorized Signatory
KZH HOLDING CORPORATION III
By
----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title:Authorized Signatory
26
XXXXXX SYNDICATED LOANS, INC.
By
----------------------------------
Name: Xxxxx Xxxxxx
Title:Vice President
MEDICAL LIABILITY MUTUAL
By
----------------------------------
Name: Xxxx XxXxxxxx
Title:Authorized Signatory
ML CBO (CAYMAN) LTD.
By Protective Asset Management
Company, as Collateral Manager
By
----------------------------------
Name: Xxxxx Xxxxxxx, CFA, CPA
Title: President
XXXXXX XXXXXXX SENIOR
FUNDING, INC.
By
----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title:Vice President
NATIONAL CITY BANK
By
----------------------------------
Name: Xxxxx Xxxxx
Title:Vice President
00
XXXXX XXXXXX BANK AND TRUST COMPANY
By
----------------------------------
Name: Xxxx X. Xxxx
Title:Vice President
OCTAGON LOAN TRUST
(a unit of Chase Manhattan Bank),
as manager on behalf of the Trust
By
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:Managing Director
ORIX USA CORPORATION
By
----------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title:Executive Vice President
PAMCO CAYMAN, LTD.
By: Protective Asset
Management Company, as
Collateral Manager
By
----------------------------------
Name: Xxxxx Xxxxxxx, CFA, CPA
Title:President
ROYALTON COMPANY, LTD.
(c/o Pacific Investment
Management Co.)
By
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title:Vice President
28
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset
Management, L.P., as
Investment Advisor
By
------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title:Authorized Signatory
