DECRANE AIRCRAFT HOLDINGS, INC. EXHIBIT 10.10.3.1
FIRST AMENDMENT
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (this "AMENDMENT") is dated as of June 30, 2000 and entered into by
and among DeCrane Aircraft Holdings, Inc., a Delaware corporation
("COMPANY"), the financial institutions listed on the signature pages hereof
("LENDERS"), DLJ Capital Funding, Inc., as syndication agent for Lenders
("SYNDICATION AGENT"), and Bank One, NA, as administrative agent for Lenders
("ADMINISTRATIVE AGENT"), and is made with reference to that certain Third
Amended and Restated Credit Agreement dated as of May 11, 2000 (the "CREDIT
AGREEMENT"), by and among Company, the lenders listed on the signature pages
thereof, Syndication Agent and Administrative Agent. Capitalized terms used
herein without definition shall have the same meanings herein as set forth in
the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit
Agreement to permit the issuance by Company of up to $25,000,000 of Senior
Exchangeable Preferred Stock and to modify subsection 7.16 of the Credit
Agreement regarding the acquisition of ERDA, Inc. in certain respects.
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 THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS
A. Subsection 1.1 of the Credit Agreement is hereby
amended by adding thereto the following definition, which shall be inserted
in proper alphabetical order:
"`COMPANY PREFERRED STOCK' means the Senior Exchangeable
Preferred Stock, which shall accrue dividends at the rate of
16.0% per annum and mature in 2009, issued by Company, the
proceeds of which will be used as provided in subsection
7.16."
B. Subsection 1.1 of the Credit Agreement is hereby
amended by deleting the definition of "Change of Control" and inserting the
following definition in lieu thereof, which shall be inserted in proper
alphabetical order:
"`CHANGE IN CONTROL' means (i) the failure of Parent at any
time to own, directly or indirectly, free and clear of all
Liens and encumbrances (other than Liens created under the
Loan Documents and Liens described in clauses (i) and (iv) of
the definition of "Permitted Encumbrances"), all right, title
and interest in 100% of the capital stock of Company, other
than the Company
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Preferred Stock; (ii) the failure of the DLJMB and the
Affiliates of any entity included in the definition of
"DLJMB" to own at least 51% (on a fully diluted basis) of
the economic and voting interest in the voting stock of
Parent; (iii) the failure of DLJMB and the Affiliates of
any entity included in the definition of "DLJMB" at any
time to have the right to designate or nominate at least
51% of the Board of Directors of Parent; or (iv) the
occurrence of a "Change of Control" as defined under any
agreement governing any Subordinated Indebtedness issued by
Company or the PIK Preferred Stock or PIK Notes issued by
Parent."
1.2 AMENDMENTS TO SECTION 7: COMPANY'S NEGATIVE COVENANTS
Subsection 7.16 is hereby amended by deleting it in its
entirety and substituting the following therefor:
"7.16 ERDA ACQUISITION.
Company shall not, and shall not permit any of its
Subsidiaries to, consummate, directly or indirectly, the acquisition of ERDA,
Inc. unless (i) Company has received additional gross cash proceeds of at
least $25,000,000 from the issuance of Company Preferred Stock and (ii) the
aggregate purchase price (excluding Earn-Outs) for ERDA, Inc. does not exceed
$34,000,000, and (iii) the documentation for such acquisition shall be in
form and substance reasonably satisfactory to Syndication Agent."
SECTION 2. CONDITIONS TO EFFECTIVENESS
The amendments referred to in Section 1 are subject to the
satisfaction on or prior to June 30, 2000 of all of the following conditions
precedent and the conditions set forth in Section 5E hereof (the date of
satisfaction of such conditions being referred to herein as the "FIRST
AMENDMENT EFFECTIVE DATE"):
A. On or before the First Amendment Effective Date,
Company shall deliver to Lenders (or to Administrative Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) the following, each, unless otherwise noted, dated the First
Amendment Effective Date:
1 Resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of this
Amendment and the issuance of the Company Preferred Stock,
certified as of the First Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and
effect without modification or amendment;
2 Signature and incumbency certificates of its officers
executing this Amendment; and
3 Executed originals of this Amendment, executed by
Company and by each Subsidiary Guarantor.
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B. Lenders shall have received originally executed copies of one or
more favorable written opinions of Davis Polk & Wardwell, Spolin & Silverman
and other counsel reasonably acceptable to the Agents, each counsel for
Company, in form and substance reasonably satisfactory to Administrative
Agent and its counsel, dated as of the First Amendment Effective Date and
setting forth, collectively, substantially the matters in the opinions
designated in ANNEX A to this Amendment.
C. All documents executed or submitted in connection with the
transactions contemplated hereby by or on behalf of Company or any of its
Subsidiaries shall be reasonably satisfactory in form and substance to Agents
and their counsel; Agents and their counsel shall have received all
information, approvals, opinions, documents or instruments that Agents or
their counsel shall have reasonably requested.
SECTION 3. COMPANY'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, Company represents
and warrants to each Lender that the following statements are true, correct
and complete on and as of the First Amendment Effective Date:
A. CORPORATE POWER AND AUTHORITY. Each of Company and each of
its Subsidiaries 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").
B. AUTHORIZATION OF AGREEMENTS; COMPANY PREFERRED STOCK. The
execution and delivery of this Amendment and the performance of the Amended
Agreement have been duly authorized by all necessary corporate action on the
part of each of Company and each of its Subsidiaries. The issuance of the
Company Preferred Stock has been duly authorized by all requisite corporate
action by Company and when issued, will be validly issued, fully paid and
nonassessable.
C. NO CONFLICT. The execution, delivery and performance by each
of Company and each of its Subsidiaries of this Amendment, the performance by
Company of the Amended Agreement and the issuance of the Company Preferred
Stock do not and will not (i) violate any provision of (x) any law or any
governmental rule or regulation applicable to Company or any of its
Subsidiaries where such violations in the aggregate have had or could
reasonably be expected to have a Material Adverse Effect, (y) the Certificate
or the Articles of Incorporation or Bylaws of Parent, Company or any of
Company's Subsidiaries or (z) any order, judgment or decree of any court or
other agency of government binding on Company or any of Company's
Subsidiaries where such violations in the aggregate have had or could
reasonably be expected to have a Material Adverse Effect, (ii) conflict with,
result in a breach of or constitute a default under any Contractual
Obligation of Parent, Company or any of its Subsidiaries where such conflict,
breach or default in the aggregate have had or 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 Company or any
of Company's Subsidiaries (other than Liens created under any of the Loan
Documents in favor
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of Administrative Agent on behalf of Lenders), or (iv) require any approval
of or consent of any Person under any Contractual Obligation of Parent,
Company or any of Company's Subsidiaries, except for such approvals or
consents the failure of which to obtain has not had and could not reasonably
be expected to have a Material Adverse Effect.
D. GOVERNMENTAL CONSENTS. The execution, delivery and
performance by each of Company and each of its Subsidiaries of this
Amendment, the performance by Company of the Amended Agreement and the
issuance of the Company Preferred Stock do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body other than any such registrations, consents, approvals, notices or other
actions (x) that have been made, obtained or taken on or prior to the date on
which such registrations, consents, approvals, notices or other actions are
required to be made, obtained or taken, as the case may be, and are in full
force and effect or (y) the failure of which to make, obtain or take has not
had and could not reasonably be expected to have a Material Adverse Effect.
E. BINDING OBLIGATION. Each of this Amendment and the Amended
Agreement has been duly executed and delivered by each Loan Party that is a
party thereto and is the legally valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with its respective
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered
in a proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First 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 Potential Event of
Default.
SECTION 4. ACKNOWLEDGEMENT AND CONSENT
Each of Parent and the Subsidiary Guarantors (each a
"GUARANTOR") is a party to a Guaranty and each such Guarantor has guarantied
the Obligations.
Each Guarantor 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.
Each Guarantor hereby confirms that the Guaranty to which it is a party or
otherwise bound will continue to guaranty to the fullest extent possible the
payment and performance of all "Guarantied Obligations" as such term is
defined in the applicable Guaranty, including without limitation the payment
and
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performance of all such "Guarantied Obligations" in respect of the
Obligations of Company now or hereafter existing under or in respect of the
Amended Agreement.
Each Guarantor (a) acknowledges and agrees that the Guaranty 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; (b) represents and warrants that all
representations and warranties contained in the Amended Agreement and in the
Guaranty to which it is a party or otherwise bound are true, correct and
complete in all material respects on and as of the First 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; and (c) acknowledges and agrees that
(i) notwithstanding the conditions to effectiveness set forth in this
Amendment, such Guarantor is not required by the terms of the Credit
Agreement or any other Loan 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 Loan Document shall be deemed
to require the consent of such Guarantor to any future amendments to the
Credit Agreement.
SECTION 5. MISCELLANEOUS
A. EFFECT OF AMENDMENT. Reference to and effect on the
Credit Agreement and the other Loan Documents.
(i) On and after the First 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 Loan 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 Amended Agreement.
(ii) Except as specifically amended by this
Amendment, the Credit Agreement and the other Loan
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 Agents or any
Lender under, the Credit Agreement or any of the other Loan
Documents.
B. FEES AND EXPENSES. Company acknowledges that all costs,
fees and expenses as described in subsection 10.2 of the Credit Agreement
incurred by Agents and their counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of
Company.
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C. 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.
D. 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.
E. COUNTERPARTS; EFFECTIVENESS. 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. This Amendment
(other than the provisions of Section 1 hereof, the effectiveness of which is
governed by Section 2 hereof) shall become effective upon the execution of a
counterpart hereof by Company, Requisite Lenders, Syndication Agent,
Administrative Agent, and the Guarantors and receipt by Company and Agents of
written or telephonic notification of such execution and authorization of
delivery thereof.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written above.
DECRANE AIRCRAFT HOLDINGS, INC., a
Delaware corporation
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
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AEROSPACE DISPLAY SYSTEMS,
INC., a Delaware
corporation (for purposes
of Section 4 only) as a
Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
AUDIO INTERNATIONAL, INC.,
an Arkansas corporation
(for purposes of Section 4
only) as a Subsidiary
Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
AVTECH CORPORATION, a Washington
corporation (for purposes of Section 4
only) as a Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
BOOTH ACQUISITION, LLC, a
Delaware limited liability
corporation (for purposes
of Section 4 only) as a
Subsidiary Guarantor
By:______________________________________
Name:
Title:
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CORY COMPONENTS, INC., a
California corporation (for
purposes of Section 4 only)
as a Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
DETTMERS INDUSTRIES, INC.,
a Delaware corporation (for
purposes of Section 4 only)
as a Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
ELSINORE AEROSPACE
SERVICES, INC., a
California corporation (for
purposes of Section 4 only)
as a Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
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ELSINORE ENGINEERING,INC., a
California corporation (for purposes
of Section 4 only) as a Subsidiary
Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
HOLLINGSEAD INTERNATIONAL,
INC., a California
corporation (for purposes
of Section 4 only) as a
Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
TRI-STAR ELECTRONICS
INTERNATIONAL, INC., a
California corporation (for
purposes of Section 4 only)
as a Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
PATS, INC., a Maryland corporation (for
purposes of Section 4 only) as a
Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
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PATS AIRCRAFT AND ENGINEERING
CORPORATION, a Maryland
corporation (for purposes of Section 4
only) as a Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
FLIGHT REFUELING, INC., a
Maryland corporation (for
purposes of Section 4 only)
as a Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
PATRICK AIRCRAFT TANK
SYSTEMS, INC., a Maryland
corporation (for purposes
of Section 4 only) as a
Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
PATS SUPPORT, INC., a
Maryland corporation (for
purposes of Section 4 only)
as a Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
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PPI HOLDINGS, INC., a Kansas
corporation (for purposes of
Section 4 only) as a Subsidiary
Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
PRECISION PATTERN, INC., a
Kansas corporation (for
purposes of Section 4 only)
as a Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
CUSTOM WOODWORK & PLASTICS,
INC., a Delaware
corporation (for purposes
of Section 4 only) as a
Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
INTERNATIONAL CUSTOM
INTERIORS, INC., a Florida
corporation (for purposes
of Section 4 only) as a
Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
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PCI ACQUISITION CO., INC., a Delaware
corporation (for purposes of Section 4
only) as a Subsidiary Guarantor
By:______________________________________
Name: Richard J. Kaplan
Title: Senior Vice President and Chief
Financial Officer
DECRANE HOLDINGS CO., a Delaware
corporation (for purposes of Section 4
only) as a guarantor
By:______________________________________
Name:_______________________________
Title:______________________________
DLJ CAPITAL FUNDING, INC., as a Lender and
as Syndication Agent
By:______________________________________
Name:_______________________________
Title:______________________________
BANK ONE, NA, as a Lender and as
Administrative Agent
By:______________________________________
Name:_______________________________
Title:______________________________
12
UNION BANK OF CALIFORNIA, N.A., as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
BHF (USA) CAPITAL CORPORATION, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
CITY NATIONAL BANK, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
13
PARIBAS, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
By:______________________________________
Name:_______________________________
Title:______________________________
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
NORSE CBO, LTD., as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
THE TRAVELERS INSURANCE COMPANY, as a
Lender
By:______________________________________
Name:_______________________________
Title:______________________________
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VAN KAMPEN SENIOR FLOATING RATE FUND, as a
Lender
By:______________________________________
Name:_______________________________
Title:______________________________
ARCHIMEDES FUNDING II, LTD., as a Lender
By: ING Capital Advisors, LLC, as
Collateral Manager
By:_______________________________
Name:___________________________
Title:__________________________
ARCHIMEDES FUNDING III, LTD., as a Lender
By: ING Capital Advisors, LLC, as
Collateral Manager
By:_______________________________
Name:___________________________
Title:__________________________
15
BALANCED HIGH-YIELD FUND II LTD., as a
Lender
By: BHF (USA) Capital Corporation
As Attorney-In-Fact
By:_______________________________
Name:___________________________
Title:__________________________
By:_______________________________
Name:___________________________
Title:__________________________
KZH HIGHLAND-2 LLC, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
THE TRAVELERS CORPORATE LOAN FUND INC., as
a Lender
By: Travelers Asset Management
International Corp.
By:_______________________________
Name:___________________________
Title:__________________________
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ING HIGH INCOME PRINCIPAL PRESERVATION
FUND HOLDINGS, LDC, as a Lender
By: ING Capital Advisors LLC, as
Investment Advisor
By:_______________________________
Name:___________________________
Title:__________________________
SEQUILS-ING I (HBDGM), LTD., as a Lender
By: ING Capital Advisors LLC, as
Collateral Manager
By:_______________________________
Name:___________________________
Title:__________________________
VAN KAMPEN PRIME RATE INCOME TRUST, as a
Lender
By:______________________________________
Name:_______________________________
Title:______________________________
STEIN ROE FLOATING RATE LIMITED LIABILITY
COMPANY, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
17
SAAR HOLDINGS CDO, LIMITED, as a Lender
By: Massachusetts Mutual Life
Insurance Company, as Collateral
Manager
By:_______________________________
Name:__________________________
Title:_________________________
KZH ING-3 LLC, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
KZH ING-2 LLC, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
MORGAN STANLEY DEAN WITTER PRIME INCOME
TRUST, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
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BALANCED HIGH-YIELD FUND I LTD., as a
Lender
By: BHF-BANK Aktiengesellschaft
By:_______________________________
Name:__________________________
Title:_________________________
By:_______________________________
Name:__________________________
Title:_________________________
PERSEUS CDO I, LIMITED, as a Lender
By: Massachusetts Mutual Life
Insurance Company, as Collateral
Manager
By:_______________________________
Name:__________________________
Title:_________________________
KZH RIVERSIDE LLC, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
HIGHLAND CAPITAL MANAGEMENT, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
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KEMPER FLOATING RATE FUND, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
OLYMPIC FUNDING TRUST, SERIES 1999-1, as a
Lender
By:______________________________________
Name:_______________________________
Title:______________________________
SRF TRADING, as a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
STEIN ROE & FARNHAM CLO I LTD., as a Lender
By: Stein Roe & Farnham Incorporated,
as Portfolio Manager
By:_______________________________
Name:__________________________
Title:_________________________
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OPPENHEIMER SENIOR FLOATING RATE FUND, as
a Lender
By:______________________________________
Name:_______________________________
Title:______________________________
LIBERTY - STEIN ROE ADVISOR FLOATING RATE
ADVANTAGE FUND, as a Lender,
by Stein Roe & Farnham Incorporated,
as Advisor
By:______________________________________
Name:_______________________________
Title:______________________________
COLUMBUS LOAN FUNDING, LTD, as a Lender,
By:______________________________________
Name:_______________________________
Title:______________________________
KEYPORT LIFE INSURANCE COMPANY,
as a Lender
By: Stein Roe & Farnham Incorporated,
as agent
By:_____________________________
Name:___________________________
Title:__________________________
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STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY, as a Lender
By: ___________________________________
Name: ___________________________________
Title:___________________________________
MUIRFIELD TRADING LLC, as a Lender
By: ___________________________________
Name: ___________________________________
Title:___________________________________
VAN KAMPEN SENIOR INCOME TRUST,
as a Lender
By: ___________________________________
Name: ___________________________________
Title:___________________________________
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
as a Lender
By: ___________________________________
Name: ___________________________________
Title:___________________________________
ELC (CAYMAN) LTD. 1999-III, as a Lender
By: ___________________________________
Name: ___________________________________
Title:___________________________________
22
ELC (CAYMAN) LTD. 2000-I, as a Lender
By: ___________________________________
Name: ___________________________________
Title:___________________________________
NORTHWOODS CAPITAL, LIMITED, as a Lender
By: Angelo, Gordon & Co., L.P.,
as Collateral Manager
By: _________________________
Name: _________________________
Title: _________________________
NORTHWOODS CAPITAL II, LIMITED, as a Lender
By: Angelo, Gordon & Co., L.P.,
as Collateral Manager
By: _________________________
Name: _________________________
Title: _________________________
KZH SHOSHONE, as a Lender
By: ___________________________________
Name: ___________________________________
Title:___________________________________
23
MAPLEWOOD (CAYMAN) LIMITED, as a Lender
By: ___________________________________
Name: ___________________________________
Title:___________________________________
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ANNEX A
MATTERS TO BE COVERED IN OPINION OF COUNSEL TO COMPANY
1. Company has been duly incorporated, and is validly
existing in good standing under the laws of the State of Delaware with
corporate power to own its properties and assets, to enter into the
Amendment, to issue the Company Preferred Stock, and to perform its
obligations under the Amendment.
2. The execution, delivery and performance of the
Amendment by Company and the issuance of the Company Preferred Stock
have been duly authorized by all necessary corporate action on the part
of Company, the Amendment has been duly executed and delivered by
Company, and the Amendment and the Amended Credit Agreement constitute
the legally valid and binding obligations of Company, enforceable
against Company in accordance with their respective terms except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) and by
general principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
3. When issued, the Company Preferred Stock will be
validly issued fully paid and nonassessable.
4. Company's execution and delivery of the Amendment,
the consummation of the transactions contemplated by the Amendment and
the issuance of the Company Preferred Stock do not and will not (i)
violate the Certificate of Incorporation or By-laws of Parent or of
Company, (ii) violate, breach or result in a default under any existing
obligation of Parent or of Company under any other agreement, (iii)
breach or otherwise violate any existing obligation of Company under
any order, judgment or decree of any New York, California or federal
court or Governmental Authority binding on Company or (iv) violate any
New York, California or federal statute or regulation.
5. No governmental consents, approvals, authorizations,
registrations, declarations or filings are required by Company in
connection with the execution and delivery by Company of the Amendment,
the performance by Company of the Amended Credit Agreement and the
issuance of the Company Preferred Stock.
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