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Exhibit 10.39
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XXXXXXX COMPANY
SECOND AMENDMENT TO
CREDIT AND GUARANTY AGREEMENT
THIS SECOND AMENDMENT (this "AMENDMENT") dated as of March __, 2000
to the CREDIT AND GUARANTY AGREEMENT dated as of October 29, 1998 (as amended by
that certain First Amendment to Credit and Guaranty Agreement dated as of March
1, 1999, the "CREDIT AGREEMENT") is entered into by and among XXXXXXX COMPANY, a
Delaware corporation (the "COMPANY"), XXXXXXX HOLDINGS, INC., a Delaware
corporation ("HOLDINGS"), the CREDIT SUPPORT PARTY listed on the signature
papers hereto, CERTAIN FINANCIAL INSTITUTIONS listed on the signature pages
hereto, XXXXXXX SACHS CREDIT PARTNERS L.P., as Syndication Agent and UBS A.G.,
STAMFORD BRANCH, as Administrative Agent. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement and in the amendments contained in Section 1 hereof.
RECITALS
WHEREAS, Company and Requisite Lenders desire to amend the Credit
Agreement to (i) permit certain incremental Tranche C Term Loans in an aggregate
principal amount not in excess of $50,000,000 and (ii) make certain adjustments
to the calculation of Consolidated Adjusted EBITDA.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS.
A. Section 1.1 of the Credit Agreement is hereby amended by adding the
following definitions in proper alphabetical order:
"INCREMENTAL TRANCHE C TERM LOAN COMMITMENTS" as
defined in Section 2.25(a).
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"INCREMENTAL TRANCHE C TERM LOANS" as defined in
Section 2.25(b)(i).
"INCREMENTAL TRANCHE C TERM LOAN LENDER" as
defined in Section 2.25(b)(ii).
"INCREMENTAL TRANCHE C TERM LOAN NOTICE" means an
Incremental Tranche C Term Loan Notice substantially in
the form of Exhibit A-4.
"INCREMENTAL TRANCHE C TERM LOAN SYNDICATION
AGENT" as defined in Section 2.25(c).
"SECOND AMENDMENT" means that certain Second
Amendment to Credit and Guaranty Agreement dated as of
March __, 2000 among Company, Holdings, Syndication
Agent, Administrative Agent and the financial
institutions and the Credit Support Parties listed on
the signature pages thereto.
"SECOND AMENDMENT EFFECTIVE DATE" means the date
of satisfaction of the conditions referred to in Section
2 of the Second Amendment.
B. Section 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Agent" to read in its entirety
as follows:
"AGENT" means each of Syndication Agent, Joint
Lead Arrangers, Administrative Agent and, if applicable,
Incremental Tranche C Syndication Agent.
C. Section 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Notice" to read in its entirety
as follows:
"NOTICE" means a Funding Notice, a Request for
Issuance, a Conversion/Continuation Notice or an
Incremental Tranche C Term Loan Notice.
D. Section 1.1 of the Credit Agreement is hereby further
amended by amending the definition of "Tranche C Lender" to read in
its entirety as follows:
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"TRANCHE C LENDER" means a Lender making a
Tranche C Term Loan on the Closing Date or pursuant to
Section 2.25.
1.2 AMENDMENTS TO SECTION 2: CREDIT EXTENSIONS.
A. Section 2.5 of the Credit Agreement is hereby amended by
adding the following at the end thereto:
"Notwithstanding the foregoing, the proceeds from any
Incremental Tranche C Term Loans shall be applied by
Company for acquisitions and general corporate
purposes."
B. Section 2.11 of the Credit Agreement is hereby amended by
adding the following Section 2.11(d) at the end thereto:
" (d) In the event any Incremental Tranche C Term
Loans are made, such Incremental Tranche C Term Loans
shall be repaid on each Installment Date occurring on or
after the applicable Incremental Tranche C Term Loan
Effective Date in an amount equal to (i) the aggregate
principal amount of Incremental Tranche C Term Loans as
of such Incremental Tranche C Term Loan Effective Date,
times (ii) the ratio (expressed as a percentage) of (y)
the amount of Tranche C Term Loans (without giving
effect to the Incremental Tranche C Term Loans) being
repaid on such Installment Date and (z) the total
aggregate amount of Tranche C Term Loans (without giving
effect to the Incremental Tranche C Term Loans)
outstanding on such Incremental Tranche C Term Loan
Effective Date."
C. Section 2.13(e) of the Credit Agreement is hereby amended by
adding the following proviso at the end thereto:
"PROVIDED FURTHER, that no such prepayment and/or
reduction shall be required for Fiscal Year 1999 except
to the extent Consolidated Excess Cash Flow for such
Fiscal Year exceeds $6,100,000; PROVIDED FURTHER, that
the amount added to Consolidated Net Income for purposes
of determining Consolidated Adjusted EBITDA relating to
severance charges during calendar years 1999 and 2000
shall not be deducted for purposes of determining
Consolidated Excess Cash Flow."
D. Section 2 of the Credit Agreement is hereby amended by
adding the following Section 2.25 at the end thereto:
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"2.25 INCREMENTAL TRANCHE C TERM LOAN COMMITMENTS AND LOANS.
(a) INCREMENTAL TRANCHE C TERM LOAN COMMITMENTS. Company may
elect to increase the Tranche C Term Loan Commitments by an aggregate
amount not in excess of $50,000,000 and in minimum amounts of not less
than $10,000,000 and in integral multiples of $5,000,000 (such
increase, the "INCREMENTAL TRANCHE C TERM LOAN COMMITMENTS").
(b) INCREMENTAL TRANCHE C TERM LOAN MECHANICS. In order to
make the election set forth in Section 2.25(a), Company shall deliver
to the Incremental Tranche C Term Loan Syndication Agent an Incremental
Tranche C Term Loan Notice setting forth the following:
(i) the date (each, an "INCREMENTAL TRANCHE C TERM
LOAN EFFECTIVE DATE"), which shall be not less than ten (10) Business
Days after the date on which the applicable Incremental Tranche C Term
Loan Notice is delivered to the Incremental Tranche C Term Loan
Syndication Agent, on which Company proposes that the applicable
Incremental Tranche C Term Loan Commitment shall be effective and, if
applicable, that the Loans to be made pursuant to the Incremental
Tranche C Term Loan Commitments (THE "INCREMENTAL TRANCHE C TERM LOAN")
shall be made;
(ii) the identity of each Lender or other Person that
meets the requirements of an Eligible Assignee (each, an "INCREMENTAL
TRANCHE C TERM LOAN LENDER") to whom Company proposes any portion of
the applicable Incremental Tranche C Term Loan Credit Commitments be
allocated and the amounts of such allocations; and
(iii) if applicable, the aggregate principal amount
of Incremental Tranche C Term Loans to be made on the Incremental
Tranche C Term Loan Effective Date.
(c) ARRANGEMENT AND SYNDICATION. The Incremental Tranche C
Term Loan Commitments shall be arranged and syndicated by Syndication
Agent in the capacity as lead arranger and syndication agent with
respect thereto (in such capacities, "INCREMENTAL TRANCHE C TERM LOAN
SYNDICATION AGENT"), and Company shall pay to Incremental Tranche C
Term Loan Syndication Agent such customary fees and expenses in
connection with arranging, syndicating and providing the Incremental
Tranche C Term Loan Commitments as may be necessary, in the reasonable
judgment of Incremental Tranche C Term Loan Syndication Agent, to
achieve a successful syndication thereof and no portion of such fees
shall be allocable to any persons other than Incremental Tranche C Term
Loan Syndication Agent and those persons providing the Incremental
Tranche C Term Loan Commitments. Notwithstanding anything in this
Agreement to the contrary,
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Incremental Tranche C Term Loan Syndication Agent shall be entitled to
the benefits of Section 9 as if it were named therein. Any Lender given
the option to participate in any Incremental Tranche C Term Loan
Commitment may elect or decline, in its sole discretion, to provide
such Incremental Tranche C Term Loan Commitment.
(d) CONDITIONS TO INCREMENTAL TRANCHE C TERM LOAN AMOUNTS. Any
Incremental Tranche C Term Loan Commitments shall become effective and,
if applicable, any Incremental Tranche C Term Loans shall be made as of
the applicable Incremental Tranche C Term Loan Effective Date subject
to the following conditions:
(i) no Default or Event of Default shall exist as of
such date before or after giving effect to such Incremental Tranche C
Term Loan Commitments;
(ii) Company and its Subsidiaries shall be in pro
forma compliance with each of the covenants set forth in Section 6.6 as
of the last day of the most recently ended fiscal quarter after giving
effect, on a pro forma basis, to such Incremental Tranche C Term Loans;
(iii) both before and after giving effect to the
making of any Incremental Tranche C Term Loans, each of the conditions
set forth in Section 3.2 shall be satisfied;
(iv) each increase in the Tranche C Term Loan
Commitments shall be effected pursuant to one or more joinder
agreements, in each case in form and substance reasonably satisfactory
to the Incremental Tranche C Term Loan Syndication Agent, and executed
by each Credit Party and each Incremental Tranche C Term Loan Lender
and delivered to Administrative Agent and recorded in the Register; and
(v) Company shall deliver or cause to be delivered
any legal opinions or other documents reasonably requested by the
Incremental Tranche C Term Loan Syndication Agent or Administrative
Agent in connection with any such transaction.
(e) INCREMENTAL TRANCHE C TERM LOANS. On any Incremental
Tranche C Term Loan Effective Date on which Incremental Tranche C Term
Loan Commitments are effected, subject to the satisfaction of the
foregoing terms and conditions:
(i) each Incremental Tranche C Term Loan Lender
holding an Incremental Tranche C Term Loan Commitment shall make
Tranche C Term Loans to Company in an amount equal to its allocated
Incremental Tranche C Term Loan Commitment;
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(ii) each such Loan shall be deemed and treated for
all purposes as a Tranche C Term Loan; and
(iii) each Incremental Tranche C Term Loan Lender
shall become a Lender hereunder with respect to the Incremental Tranche
C Term Loan Commitments and for purposes of all other provisions of
this Agreement shall be deemed a Tranche C Lender.
(f) NOTICE OF INCREMENTAL TRANCHE C AMOUNTS. Administrative
Agent shall notify the Lenders promptly upon receipt of Company's
notice of each Incremental Tranche C Effective Date and in respect
thereof the Incremental Tranche C Commitments and the Incremental
Tranche C Term Loans."
1.3 AMENDMENTS TO SECTION 6: NEGATIVE COVENANTS.
A. Section 6.5(v)(b) of the Credit Agreement is hereby amended by
restating it in its entirety as follows:
"(b) the aggregate amount of Restricted Junior Payments made pursuant
to this clause (v) in any Fiscal Year shall not exceed $2,500,000 plus
the cumulative unused portion, if any, of such $2,500,000 per year
amount not so utilized during the preceding Fiscal Years."
B. Section 6.6A of the Credit Agreement is hereby amended by deleting
the table set forth therein in its entirety and substituting therefor the
following:
MINIMUM FIXED CHARGE
PERIOD COVERAGE RATIO
------ --------------
The last day of Fiscal Year 1999 - the day imme- 1.55:1.00
diately preceding the end of 2(nd) Fiscal Quarter
2001
The last day of 2(nd) Fiscal Quarter 2001 - the day 1.65:1.00
immediately preceding the end of Fiscal Year
2001
The last day of Fiscal Year 2001 - the day imme- 1.75:1.00
diately preceding the end of 2(nd) Fiscal Quarter
2002
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MINIMUM FIXED CHARGE
PERIOD COVERAGE RATIO
------ --------------
The last day of 2(nd) Fiscal Quarter 2002 - 1.95:1.00
thereafter
C. Section 6.6B of the Credit Agreement is hereby amended by deleting
the table set forth therein in its entirety and substituting therefor the
following:
MINIMUM CASH INTEREST
PERIOD COVERAGE RATIO
------ --------------
The last day of Fiscal Year 1999 - the day imme- 1.90:1.00
diately preceding the end of 2(nd) Fiscal Quarter
2001
The last day of 2(nd) Fiscal Quarter 2001 - the day 2.10:1.00
immediately preceding the end of Fiscal Year
2001
The last day of Fiscal Year 2001 - the day imme- 2.30:1.00
diately preceding the end of 2(nd) Fiscal Quarter
2002
The last day of 2(nd) Fiscal Quarter 2002 - 2.50:1.00
thereafter
D. Section 6.8 of the Credit Agreement is hereby amended by deleting
the reference to "$10,000,000" for the period ending 12/31/00 in the table set
forth therein and substituting "$12,500,000" therefor.
E. Section 6.8 of the Credit Agreement is hereby further amended by
adding the following proviso at the end thereto:
"PROVIDED FURTHER, in addition to the foregoing, Company and its
Subsidiaries may incur additional Capital Expenditures in an amount
not to exceed $1,700,000 in the aggregate with respect to the
acquisition of United Sleep Products, as long as such Capital
Expenditures are incurred within twelve months of the date of such
acquisition and made with respect to United Sleep Products and its
Subsidiaries."
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1.4 AMENDMENTS TO SECTION 10: Miscellaneous. Section 10.5(d) of the Credit
Agreement is hereby amended by deleting the "." at the end thereto and adding
the following:
"or of Section 2.25 as it relates to the Incremental Tranche C Term
Loan Syndication Agent, in each case without the consent of such
Agent."
1.5 AMENDMENTS TO EXHIBITS.
A. The Credit Agreement is hereby amended by adding thereto a new
EXHIBIT A-4 (Incremental Tranche C Term Loan Notice) in the form of ANNEX A
attached hereto.
B. The Credit Agreement is hereby amended by deleting the current
EXHIBIT M (Certain Adjustments to EBITDA) in its entirety and substituting
therefor a new EXHIBIT M in the form of ANNEX B attached hereto.
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "SECOND
AMENDMENT EFFECTIVE DATE"):
A. EXECUTION. Credit Parties and Requisite Lenders shall have executed
this Amendment.
B. AMENDMENT FEE. The Administrative Agent shall have received, for
distribution to all Lenders executing this Amendment, an amendment fee equal to
0.125% of such Lender's outstanding Loans and Commitments.
C. OTHER FEES. The Agents shall have received all other fees and other
amounts due and payable on or prior to the Second Amendment Effective Date,
including, to the extent invoiced, reimbursement or other payment of all
out-of-pocket expenses required to be reimbursed or paid by the Company
hereunder or under any other Credit Document.
D. NECESSARY CONSENTS. Each Credit Party shall have obtained all
material consents necessary or advisable in connection with the transactions
contemplated by this Amendment.
E. OTHER DOCUMENTS. Administrative Agent and Lenders shall have
received such other documents and information regarding Credit Parties as
Administrative Agent may reasonably request.
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SECTION 3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, each of the Company
represents and warrants to each Lender that the following statements are true,
correct and complete in all material respects:
A. CORPORATE POWER AND AUTHORITY. Each Credit Party which is party
hereto has all requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its
obligations under, the Credit Agreement as amended by this Amendment (the
"Amended Agreement") and the other Credit Documents.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement and the other Credit
Documents have been duly authorized by all necessary corporate action on the
part of each Credit Party.
C. NO CONFLICT. The execution and delivery by each Credit Party of this
Amendment and the performance by each Credit Party of the Amended Agreement and
the other Credit Documents do not and will not (i) violate (A) any provision of
any law, statute, rule or regulation, or of the certificate or articles of
incorporation or partnership agreement, other constitutive documents or by-laws
of Holdings, the Company or any Subsidiary, (B) any applicable order of any
court or any rule, regulation or order of any Governmental Authority or (C) any
provision of any indenture, certificate of designation for preferred stock,
agreement or other instrument to which Holdings, the Company or any Subsidiary
is a party or by which any of them or any of their property is or may be bound,
(ii) be in conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under any such indenture, certificate
of designation for preferred stock, agreement or other instrument, where any
such conflict, violation, breach or default referred to in clause (i) or (ii) of
this Section 3.C., individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of each Credit Party
(other than any Liens created under any of the Credit Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or partners or any approval or consent of any Person under any
contractual obligation of each Credit Party, except for such approvals or
consents which will be obtained on or before the Second Amendment Effective
Date.
D. GOVERNMENTAL CONSENTS. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the execution and delivery by each Credit
Party of this Amendment and the performance by Company and Holdings of the
Amended Agreement and the other Credit Documents, except for such actions,
consents and approvals the failure to obtain or make which could not reasonably
be expected to result in a Material Adverse Effect or which have been obtained
and are in full force and effect.
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E. BINDING OBLIGATION. This Amendment and the Amended Agreement have
been duly executed and delivered by each of the Credit Parties party thereto and
each constitutes a legal, valid and binding obligation of such Credit Party to
the extent a party thereto enforceable against such Credit Party in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
creditors' rights generally and except as enforceability may be limited by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 4 of the
Amended Agreement are and will be true, correct and complete in all material
respects on and as of the Second Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Default.
SECTION 4. ACKNOWLEDGMENT AND CONSENT
Xxxxxxx International Holdings Company, Inc. referred to herein as the
"CREDIT SUPPORT PARTY", and the Credit Documents to which they are a party are
collectively referred to herein as the "CREDIT SUPPORT DOCUMENTS".
Credit Support Party hereby acknowledges that it has reviewed the terms
and provisions of the Credit Agreement and this Amendment and consents to the
amendment of the Credit Agreement effected pursuant to this Amendment. Credit
Support Party hereby confirms that each Credit Support Document to which it is a
party or otherwise bound and all Collateral encumbered thereby will continue to
guarantee or secure, as the case may be, to the fullest extent possible in
accordance with the Credit Support Documents the payment and performance of all
"Obligations" under each of the Credit Support Documents to which is a party (in
each case as such terms are defined in the applicable Credit Support Document).
Credit Support Party acknowledges and agrees that any of the Credit
Support Documents to which it is a party or otherwise bound shall continue in
full force and effect and that all of its obligations thereunder shall be valid
and enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Credit Support Party represents and warrants
that all representations and warranties contained in the Amended Agreement and
the Credit Support Documents to which it is a party or otherwise bound are true,
correct and complete in all material respects on and as of the Second Amendment
Effective Date to the same extent as though made on and as of that date, except
to the extent such representations
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and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
Credit Support Party acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in this Amendment, Credit Support
Party is not required by the terms of the Credit Agreement or any other Credit
Support Document to consent to the amendments to the Credit Agreement effected
pursuant to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Credit Support Document shall be deemed to require the
consent of Credit Support Party to any future amendments to the Credit
Agreement.
SECTION 5. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the Second Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Credit Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement as amended by this Amendment.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Credit Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right, power
or remedy of any Agent or Lender under, the Credit Agreement or any of
the other Credit Documents.
B. HEADINGS. Section and Subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
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D. COUNTERPARTS. This Amendment 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 an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER: XXXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice-President-Finance, Treasurer
HOLDINGS: XXXXXXX HOLDING, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice-President-Finance, Treasurer
CREDIT SUPPORT XXXXXXX INTERNATIONAL HOLDINGS
PARTIES: COMPANY, INC.
(for the purposes of Section 4 only) as a Credit
Support Party
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice-President-Finance, Treasurer
LENDERS XXXXXXX XXXXX CREDIT PARTNERS L.P.,
AND AGENTS:
By: /s/ Xxxxxxxxx Xxxxxxx
--------------------------------------------
Authorized Signatory
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: Director
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WACHOVIA BANK, N.A.,
By: /s/ Xxxxxx Xxx
--------------------------------------------
Name: Xxxxxx Xxx
Title: Senior Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxxx So
--------------------------------------------
Name: Xxxxxxx So
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION
By:
--------------------------------------------
Name:
Title:
BHF-BANK AKTIENGESELLSCHAFT
NEW YORK BRANCH
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
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SUNTRUST BANK, ATLANTA
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.
By:
--------------------------------------------
Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK, AG
NEW YORK BRANCH
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
S-3
00
XXX XXXX XX XXX XXXX
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
----------------------------------------
Name:
Title:
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Vice President
THE MITSUBISHI TRUST AND BANKING COR-
PORATION
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
THE PROVIDENT BANK
By: /s/ Xxxxxx X. Xxx
----------------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
X-0
00
X-0
00
XXXXXXXXXX INC.
By:
----------------------------------------
Name:
Title:
X-0
00
XXXXXXXX LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory
X-0
00
X-0
22
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
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HSBC BANK USA
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Authorized Signatory
S-10
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FREMONT INVESTMENT & LOAN
By:
----------------------------------------
Name:
Title:
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ARCHIMEDES FUNDING III, LTD.
BY: ING CAPITAL ADVISORS LLC,
AS COLLATERAL MANAGER
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
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AERIES 2 FINANCE LTD.
BY: INVESCO SENIOR SECURED MANAGEMENT,
INC, AS SUB-MANAGING AGENT
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
AMARA 1 FINANCE LTD.
BY: INVESCO SENIOR SECURED MANAGEMENT,
INC., AS SUB-ADVISOR
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
AMARA 2 FINANCE LTD.
BY: INVESCO SENIOR SECURED MANAGMENT,
INC., AS SUB ADVISOR
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
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NORTH AMERICAN SENIOR FLOATING RATE
FUND
BY: CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC. AS PORTFOLIO MANAGER
By: /s/ Xxxxxxxxx X. XxXxxxxxx
----------------------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
Title: Principal
CYPRESSTREE INSTITUTIONAL FUND, LLC
By: CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC. ITS MANAGING MEMBER
By: /s/ Xxxxxxxxx X. XxXxxxxxx
----------------------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
Title: Principal
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KZH CYPRESSTREE - 1 LLC
By: /s/ Xxxxx Xxxx
----------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
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SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
OXFORD STRATEGIC INCOME FUND
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ Xxxxx X. Page
----------------------------------------
Name: Xxxxx X. Page
Title: Vice President
S-16
30
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
S-17
31
ANNEX A
EXHIBIT A-4 TO
CREDIT AND GUARANTY AGREEMENT
INCREMENTAL TRANCHE C TERM LOAN NOTICE
Reference is made to the Credit and Guaranty Agreement, dated as of
October 29, 1998 (as it may be amended, supplemented or otherwise modified, the
"CREDIT AGREEMENT"; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among XXXXXXX COMPANY, A DELAWARE
CORPORATION ("COMPANY"), XXXXXXX HOLDINGS, INC., A DELAWARE CORPORATION
("HOLDINGS"), certain Subsidiaries of Company, as Guarantors, the Lenders party
thereto from time to time, XXXXXXX SACHS CREDIT PARTNERS L.P., as Syndication
Agent, and UBS A.G., STAMFORD BRANCH, as Administrative Agent.
Pursuant to Section 2.25(a) of the Credit Agreement, Company [(i)]
elects to increase the Tranche C Term Loan Commitments in the following
aggregate amounts[, and (ii) requests that Lenders make the following Loans to
Company in accordance with the applicable terms and conditions of the Credit
Agreement, in each case] to be effective as of [date] the date (the "INCREMENTAL
TRANCHE C TERM LOAN EFFECTIVE DATE"):
TRANCHE C TERM LOANS:
INCREMENTAL TRANCHE C TERM LOAN COMMITMENTS: $_____________
[$[__,__,__] Eurodollar Rate Loans Initial Interest
Period of _________
month(s)
$[__,__,__] Base Rate Loans]
Company hereby certifies that as of Incremental Tranche C Term Loan
Effective Date:
(i) no Default or Event of Default shall exist either before
or after giving effect to the Incremental Tranche C Term Loan
Commitments contemplated hereby;
(ii) Company and its Subsidiaries shall be in pro forma
compliance with each of the covenants set forth in Section 6.6 as of
the last day of the most recently ended fiscal quarter after giving
effect to the Incremental Tranche C Term Loans contemplated hereby;
Exhibit A-4-1
32
(iii) both before and after giving effect to the making of any
Incremental Tranche C Term Loans, each of the conditions set forth in
Section 3.2 of the Credit Agreement shall have been satisfied;
(iv) the increase in the Tranche C Term Loan Commitments shall
be effected pursuant to one or more joinder agreements, in each case in
form and substance reasonably satisfactory to Administrative Agent, and
shall be executed by each Credit Party and each Incremental Tranche C
Term Loan Lender and delivered to Administrative Agent and recorded in
the Register;
(v) Company has delivered or caused to be delivered any legal
opinions or other documents reasonably requested by Administrative
Agent in connection with the transactions contemplated hereby; and
(vii) attached as Annex A hereto is a list of each Incremental
Tranche C Term Loan Lender and the amount of each Incremental Tranche C
Term Loan Commitment applicable thereto.
Date: [date] XXXXXXX COMPANY
By:____________________________
Title:_________________________
Exhibit X-0-0
00
XXXXX X
[ATTACHED]
Exhibit M-1
34
EXHIBIT M TO THE
CREDIT AND GUARANTY AGREEMENT
Xxxxxxx Company
Historical Adjusted EBITDA
($ thousands)
1997 1998 1999 2000
----------------------------------------------------------------------------------------------------
EBITDA 53,325 58,682 52,612 ACTUAL
Interest Income 256 184 201 ACTUAL
Non-Recurring SWIFT/UNITE 2,347 2,208 --
Management Strategic Initiatives
Strategic Initiative #1 1,363 -- --
Strategic Initiative #2 330 -- --
Strategic Initiative #3 -- 418 444
Other
Discontinued Product Line 799 772 --
Severance -- -- 6,600 3,800
H&H -- -- 6,883
EBITDA, as Adjusted 58,420 62,264 66,740
The numbers set forth above under "EBITDA, as Adjusted" for periods
prior to Fiscal Year 2000 shall be used as "Consolidated Adjusted EBITDA" in
computing the covenants set forth in Section 6.6 of the Credit Agreement. EBITDA
for each Fiscal Quarter in 2000 shall use the actual numbers for such quarter
adjusted as provided under the heading "2000". The severance and H&H adjustments
for 1999 were incurred in the fourth Fiscal Quarter of 1999. It is estimated
that the adjustment provided under the Heading "2000" will be made in the first
Fiscal Quarter of 2000.
