FIRST AMENDMENT
TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
August 1, 1996, is by and among HUNT MANUFACTURING CO. (the "Borrower"), CERTAIN
GUARANTORS IDENTIFIED ON THE SIGNATURE PAGES HERETO, THE PERSONS IDENTIFIED AS
AN "EXISTING LENDER" ON THE SIGNATURE PAGES HERETO (the "Existing Lenders"), THE
PERSONS IDENTIFIED AS A "NEW LENDER" ON THE SIGNATURE PAGES HERETO (the "New
Lenders" and, together with the Existing Lenders, the "Lenders") and
NATIONSBANK, N.A., as agent for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of December 19, 1995
(the "Existing Credit Agreement") among the Borrower, the Guarantors, the
Existing Lenders and the Agent, the Existing Lenders have extended commitments
to make certain credit facilities available to the Borrower; and
WHEREAS, the parties hereto have agreed to amend the
Existing Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined
herein or the context otherwise requires, the following terms used in
this Amendment, including its preamble and recitals, have the following
meanings:
"Amended Credit Agreement" means the
Existing Credit Agreement as amended hereby.
"Amendment No. 1 Effective Date" is
defined in Subpart 4.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Amendment,
including its preamble and recitals, have the meanings provided in the
Amended Credit Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 1
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II. Except as so amended, the Existing Credit Agreement and all
other Credit Documents shall continue in full force and effect.
SUBPART 2.1. Amendments to Section 1.1.
SUBPART 2.1.1. The following definitions in Section 1.1 of the
Existing Credit Agreement are amended in their entireties to read as
follows:
"Agent's Fees" shall have the meaning assigned to such term in
Section 3.5(c).
"Applicable Margin" means, for purposes of calculating the
applicable interest rate for any day for any Eurodollar Loan or the
applicable rate of the Facility Fee for any day for purposes of Section
3.5(a) or the applicable rate of the Standby Letter of Credit Fee for
any day for purposes of Section 3.5(b)(i), the appropriate applicable
margin corresponding to the Consolidated Leverage Ratio in effect as of
the most recent Calculation Date:
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Applicable
Margin for
Eurodollar
Loans Applicable
which are Applicable Margin for
Consolidated Revolving Margin for Standby
Pricing Leverage Credit Facility Letter of
Level Ratio Loans Fee Credit Fee
I Equal to or 27.5 bps 10.0 bps 27.5 bps
less than
2.00 to 1.00
II Greater than 35.0 bps 15.0 bps 35.0 bps
2.00 to 1.00
but equal to
or less than
2.50 to 1.00
III Greater than 42.5 bps 20.0 bps 42.5 bps
2.50 to 1.00
but equal to
or less than
3.00 to 1.00
IV Greater than 50.0 bps 25.0 bps 50.0 bps
3.00 to 1.00
Determination of the appropriate Applicable Margins based on the
Consolidated Leverage Ratio shall be made as of each Calculation Date.
The Consolidated Leverage Ratio in effect as of a Calculation Date
shall establish the Applicable Margins that shall be effective as of
the date designated by the Agent as the Applicable Margin Change Date.
The Agent shall determine the Applicable Margins as of each Calculation
Date and shall promptly notify the Borrower and the Lenders of the
Applicable Margins so determined and of the Applicable Margin Change
Date. Such determinations by the Agent of the Applicable Margins shall
be conclusive absent demonstrable error.
"Available Reinvestment Amount" means, at any time, the
aggregate amount of the Excess Sale Proceeds of all asset sales made
pursuant to Section 8.4(b)(v) with respect to which the related
Application Period has not yet expired, provided that such Excess Sale
Proceeds (i) have not been applied to the purchase, acquisition or
construction of Alternative Assets as contemplated by Section
8.4(b)(v)(B)(1) and (ii) have been applied to prepay the Loans as
contemplated by Section 8.4(b)(v)(B)(2) and Section 3.3(b)(ii).
"Commitment" means (i) with respect to each Lender, the
Revolving Commitment of such Lender, (ii) with respect to
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the Swingline Lender, the Swingline Commitment and (iii) with respect
to the Issuing Lender, the LOC Commitment.
An "Excess Sale Event" shall be deemed to have occurred if
either (1) the net book value of all assets sold pursuant to the terms
of Section 8.4(b)(v) during the preceding twelve (12) months exceeds
15% of Consolidated Total Assets as determined at the end of the
immediately preceding fiscal year or (2) the net book value of all
assets sold pursuant to the terms of Section 8.4(b)(v) during the
preceding thirty-six (36) months exceeds 30% of Consolidated Total
Assets as determined at the end of the fiscal year nearest to the date
thirty-six (36) months prior to such sale of assets.
"Interest Payment Date" means (i) as to any Base Rate Loan,
the last day of each March, June, September and December, the date of
repayment of principal of such Loan and the Termination Date and (ii)
as to any Eurodollar Loan, the last day of each Interest Period for
such Loan and on the Termination Date, and in addition where the
applicable Interest Period is more than 3 months, then also on the date
3 months from the beginning of the Interest Period, and each 3 months
thereafter. If an Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to be the next
succeeding Business Day, except that in the case of Eurodollar Loans
where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day.
"Interest Period" means (i) as to Eurodollar Loans, a period
of one, two, three or six month's duration, as the Borrower may elect,
commencing in each case, on the date of the borrowing (including
conversions, extensions and renewals), (ii) as to Competitive Loans, a
period commencing in each case on the date of the borrowing and ending
on the date specified in the applicable Competitive Bid whereby the
offer to make such Competitive Loan was extended (such ending date in
any event to be not less than 7 nor more than 180 days from the date of
the borrowing) and (iii) as to Swingline Loans, a period commencing in
each case on the date of the borrowing and ending on the date agreed to
by the Borrower and the Swingline Lender in accordance with the
provisions of Section 2.4(b)(i) (such ending date in any event to be
not more than seven (7) Business Days from the date of borrowing);
provided, however, (A) if any Interest Period would end on a day which
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day (except that in the case of Eurodollar
Loans where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day),
(B) no Interest Period shall extend beyond the Termination Date, and
(C) in the case of Eurodollar Loans, where an Interest Period begins on
a day for which there is no numerically corresponding day in the
calendar
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month in which the Interest Period is to end, such Interest Period
shall end on the last day of such calendar month.
"Loan" or "Loans" means the Revolving Loans (or a portion of
any Revolving Loan bearing interest at the Base Rate or the Eurodollar
Rate and referred to as a Base Rate Loan or a Eurodollar Loan), the
Competitive Loans and/or the Swingline Loans (or any Swingline Loan
bearing interest at the Base Rate or the Quoted Rate and referred to as
a Base Rate Loan or a Quoted Rate Swingline Loan), individually or
collectively, as appropriate.
"Material Subsidiary" means (i) each of Bevis, Hunt Data, Hunt
Holdings, Hunt X-Acto and Seal and (ii) any other direct or indirect
Subsidiary of the Borrower which at any time on or after the Closing
Date has total assets (as determined in accordance with GAAP) equal to
or greater than $1,000,000, provided that the aggregate total assets
(as determined in accordance with GAAP) at any time of all Subsidiaries
of the Borrower excluded from this definition of "Material Subsidiary"
shall not exceed 10% of Consolidated Total Assets as of the then most
recent Calculation Date with respect to which the Agent shall have
received the Required Financial Information.
"Net Proceeds" means proceeds received by the Borrower or any
of its Subsidiaries from time to time in connection with any Asset Sale
or Equity Transaction, net of the actual costs and taxes incurred by
such Person in connection with and attributable to such Asset Sale or
Equity Transaction, as applicable.
"Note" means any Revolving Note, any Competitive Note or the
Swingline Note, as the context may require.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.1(b)(i), as required by Section
2.1(b)(i).
"Participation Interest" means, the extension of credit by a
Lender by way of a purchase of a participation in any Letters of Credit
or LOC Obligations as provided in Section 2.2(c), in Swingline Loans as
provided in Section 2.4(b)(iii) or in any Loans as provided in Section
3.13.
"Permitted Investments" means Investments which are either (i)
cash and Cash Equivalents; (ii) accounts receivable created, acquired
or made by the Borrower or any of its Subsidiaries in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms; (iii) Investments consisting of stock,
obligations, securities or other property received by the Borrower or
any of its Subsidiaries in settlement of accounts receivable (created
in the ordinary course of business) from bankrupt obligors; (iv)
Investments existing as of the Closing Date
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and set forth in Schedule 1.1A; (v) Investments in any Subsidiary of
the Borrower which is a Guarantor; (vi) Investments in any Subsidiary
of the Borrower which is not a Guarantor, provided that the aggregate
outstanding principal amount of all such Investments plus all
Investments made pursuant to subsection (xv) of this definition shall
not exceed, as of the date made, 10% of Consolidated Net Worth as of
the then most recent Calculation Date with respect to which the Agent
shall have received the Required Financial Information; (vii) Guaranty
Obligations permitted by Section 8.1; (viii) acquisitions permitted by
Section 6.15 and Section 8.4(c); (ix) transactions permitted by Section
8.8; (x) loans to directors, officers, employees, agents, customers or
suppliers that do not exceed an aggregate principal amount of
$1,000,000 at any one time outstanding; (xi) Investments received as
consideration in connection with or arising by virtue of any merger,
consolidation, sale or other transfer of assets permitted under Section
8.4; (xii) Investments by the Borrower in a Subsidiary or Affiliate in
connection with a Permitted Receivables Financing; (xiii) intercompany
Indebtedness of Bevis, Seal and Hunt Europe to the Borrower incurred in
the ordinary course of business and consistent with the past practices
of such Persons or for cash management purposes and, in the case of
Hunt Europe, not exceeding $10,000,000 at any time outstanding; (xiv)
in the case of any Foreign Subsidiary of the Borrower, Investments
which may be denominated in a currency other than Dollars, having
similar liquidity, duration and credit quality of issuer as Investments
of the types described in the definition of "Cash Equivalents" set
forth in this Section 1.1; and (xv) Investments in joint ventures and
partnerships, provided that the aggregate outstanding principal amount
of all such Investments plus all Investments made pursuant to
subsection (vi) of this definition shall not exceed, as of the date
made, 10% of Consolidated Net Worth as of the then most recent
Calculation Date with respect to which the Agent shall have received
the Required Financial Information.
"Permitted Liens" means:
(i) Liens in favor of the Agent on behalf of the
Lenders;
(ii) Liens (other than Liens created or imposed under
ERISA) for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes being contested in good
faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and
as to which the Property subject to any such Lien is not yet
subject to foreclosure, sale or loss on account thereof);
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(iii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers
and other liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary
course of business, provided that such Liens secure only
amounts not yet due and payable or, if due and payable, are
being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP
have been established (and as to which the Property subject to
any such Lien is not yet subject to foreclosure, sale or loss
on account thereof);
(iv) Liens (other than Liens created or imposed under
ERISA) incurred or deposits made by the Borrower or any of its
Subsidiaries in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other
types of social security, or to secure the performance of
tenders, statutory obligations, bids, leases, government
contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment
of borrowed money);
(v) Liens in connection with attachments or judgments
(including judgment or appeal bonds) provided that the
judgments secured shall, within 60 days after the entry
thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 30 days
after the expiration of any such stay;
(vi) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or
irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use
of the encumbered Property for its intended purposes;
(vii) Liens on Property securing purchase money
Indebtedness (including Capital Leases) to the extent
permitted under Section 8.1(c), provided that any such Lien
attaches to such Property concurrently with or within 90 days
after the acquisition thereof;
(viii) leases or subleases granted to others not
interfering in any material respect with the business
of any Credit Party;
(ix) any interest of title of a lessor under, and
Liens arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions)
relating to, leases permitted by this Credit Agreement;
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(x) Liens created or deemed to exist in connection
with a Permitted Receivables Financing (including any related
filings of any financing statements), but only to the extent
that any such Lien relates to the applicable receivables and
related property actually sold, contributed or otherwise
conveyed pursuant to such transaction;
(xi) normal and customary rights of setoff upon
deposits of cash in favor of banks or other depository
institutions;
(xii) Liens existing as of the Closing Date and set
forth on Schedule 1.1B; provided that (a) no such Lien shall
at any time be extended to or cover any property of any Credit
Party other than the property subject thereto on the Closing
Date and (b) the principal amount of the Indebtedness secured
by such Liens shall not be increased; and
(xiii) other Liens; provided that the aggregate
outstanding principal amount of all Indebtedness secured by
such Liens plus the aggregate outstanding principal amount of
all Indebtedness of all Subsidiaries of the Borrower plus the
aggregate outstanding obligations incurred in transactions
permitted by Section 8.12 shall not, at any time, exceed 20%
of Consolidated Net Worth as of the then most recent
Calculation Date with respect to which the Agent shall have
received the Required Financial Information.
"Pro Forma Basis" means, with respect to any transaction, that
such transaction shall be deemed to have occurred as of the first day
of the four fiscal-quarter period ending as of the most recent
Calculation Date preceding the date of such transaction with respect to
which the Agent has received the Required Financial Information. As
used herein, "transaction" means (i) any incurrence, assumption or
retirement of Indebtedness as referred to in Section 8.1(i)(i), (ii)
any sale or other disposition of assets as referred to in Section
8.3(b)(iv) or (iii) any acquisition of capital stock or securities or
any purchase, lease or other acquisition of Property as referred to in
Section 8.4(c). With respect to any transaction of the type described
in clause (i) above regarding Indebtedness which has a floating or
formula rate, the implied rate of interest for such Indebtedness for
the applicable period for purposes of this definition shall be
determined by utilizing the rate which is or would be in effect with
respect to such Indebtedness as at the relevant date of determination.
"Required Lenders" means, at any time, Lenders which are then
in compliance with their obligations hereunder (as determined by the
Agent) and holding in the aggregate at
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least 51% of (i) the Commitments to make Revolving Loans or (ii) if the
Commitments have been terminated, the outstanding Loans and
Participation Interests.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender, in an aggregate principal amount at any time
outstanding of up to such Lender's Revolving Commitment Percentage of
the Revolving Committed Amount, (A) to make Revolving Loans in
accordance with the provisions of Section 2.1(a), (B) to purchase
participation interests in Letters of Credit in accordance with the
provisions of Section 2.2(c) and (C) to purchase participation
interests in the Swingline Loans in accordance with the provisions of
Section 2.4(c).
SUBPART 2.1.2. The following definitions set forth in
Section 1.1 of the Existing Credit Agreement are deleted in
their entirety: "Debt Transaction," "Term Loan," "Term Loan
Commitment," "Term Loan Committed Amount," "Term Loan Unused
Fee" and "Term Note."
SUBPART 2.1.3. Section 1.1 of the Existing Credit Agreement is
amended to include the following definitions in their proper
alphabetical location:
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan pursuant to the terms of Section 2.3.
"Competitive Bid Rate" means, as to any Competitive Bid made
by a Lender in accordance with the provisions of Section 2.3, the fixed
rate of interest offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with the provisions of Section 2.3(b).
"Competitive Bid Request Fee" shall have the meaning assigned
to such term in Section 3.5(d).
"Competitive Loan" means a loan made by a Lender in its
discretion pursuant to the provisions of Section 2.3.
"Competitive Loan Lenders" means, at any time, those Lenders
which have Competitive Loans outstanding.
"Competitive Loan Maximum Amount" shall have the meaning
assigned to such term in Section 2.3(a).
"Competitive Note" means a promissory note of the Borrower in
favor of a Lender delivered pursuant to Section 2.3(i) and evidencing
the Competitive Loans, if any, of such Lender, as such promissory note
may be amended, modified, restated or replaced from time to time.
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"Consolidated Capitalization" means, at any time, the sum of
(i) Consolidated Net Worth at such time plus (ii) Consolidated Funded
Indebtedness at such time.
"Consolidated Funded Indebtedness to Capitalization Ratio"
means, as of any Calculation Date, the ratio of (i) Consolidated Funded
Indebtedness as of such Calculation Date to (ii) Consolidated
Capitalization as of such Calculation
Date.
"Consolidated Total Assets" means, at any time, all items
which, in accordance with GAAP, would be classified as assets on a
consolidated balance sheet of the Borrower as of such time minus the
amount of Contingent Liabilities for Receivables at such time as
determined in accordance with GAAP.
"Contingent Liabilities for Receivables" means, at any time,
the aggregate amount of recourse (solely for defaulted or delinquent
receivables) against the Borrower and all of its Subsidiaries under all
Permitted Receivables Financings.
"Excess Sale Proceeds" means, with respect to any Excess Sale
Event, either (1) if an Excess Sale Event is deemed to occur pursuant
to clause (1) of the definition thereof, the amount by which the Net
Proceeds of all such asset sales made during the preceding twelve (12)
months exceeds 15% of Consolidated Total Assets as determined at the
end of the immediately preceding fiscal year or (2) if an Excess Sale
Event is deemed to occur pursuant to clause (2) of the definition
thereof, the amount by which the Net Proceeds of all such asset sales
made during the preceding thirty-six (36) months exceeds 30% of
Consolidated Total Assets as determined at the end of the fiscal year
nearest to the date thirty-six (36) months prior to such sale of
assets.
"Quoted Rate" means, with respect to any Quoted Rate Swingline
Loan, the fixed percentage rate per annum offered by the Swingline
Lender and accepted by the Borrower with respect to such Swingline Loan
as provided in accordance with the provisions of Section 2.4.
"Quoted Rate Swingline Loan" means a Swingline Loan
bearing interest at a Quoted Rate.
"Senior Note" means any of the 7.86% Senior Notes due August
1, 2011, in an aggregate original principal amount of $50,000,000,
issued by the Borrower in favor of the Senior Noteholders pursuant to
the Senior Note Agreement, as the same may be amended, modified,
supplemented or replaced from time to time.
"Senior Note Agreement" means that certain Note
Purchase Agreement, dated as of August 1, 1996, by and
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between the Borrower and the Senior Noteholders, as the same may be
amended, modified, supplemented or replaced from time to time.
"Senior Noteholder" means any of the holders from time
to time of the Senior Notes.
"Swingline Commitment" means the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any
time outstanding of up to the Swingline Committed Amount.
"Swingline Committed Amount" shall have the meaning assigned
to such term in Section 2.4(a).
"Swingline Lender" means NationsBank.
"Swingline Loan" shall have the meaning assigned to such term
in Section 2.4(a).
"Swingline Note" means the promissory note of the Borrower in
favor of the Swingline Lender in the original principal amount of
$2,000,000, as such promissory note may be amended, modified, restated
or replaced from time to time.
SUBPART 2.2. Amendment to Section 2.1(a). Section 2.1(a) of
the Existing Credit Agreement is amended in its entirety to read as
follows:
2.1 Revolving Loans.
(a) Revolving Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set
forth herein, each Lender severally agrees to make available to the
Borrower such Lender's Commitment Percentage of revolving credit loans
("Revolving Loans") from time to time from the Closing Date until the
Termination Date, or such earlier date as the Revolving Commitments
shall have been terminated as provided herein for the purposes
hereinafter set forth; provided further, however, that the sum of the
aggregate principal amount of outstanding Revolving Loans shall not
exceed SEVENTY-FIVE MILLION DOLLARS ($75,000,000) (as such aggregate
maximum amount may be reduced from time to time as provided in Section
3.4, the "Revolving Committed Amount"); provided, further, (i) with
regard to each Lender individually, such Lender's outstanding Revolving
Loans shall not exceed such Lender's Commitment Percentage of the
Revolving Committed Amount, and (ii) with regard to the Lenders
collectively, the aggregate principal amount of outstanding Revolving
Loans plus LOC Obligations outstanding plus the aggregate principal
amount of outstanding Competitive Loans plus the aggregate principal
amount of outstanding Swingline Loans shall not exceed the Revolving
Committed Amount. Revolving
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Loans may consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof; provided, however,
that no more than 12 separate Eurodollar Loans shall be outstanding
hereunder at any time. For purposes hereof, Eurodollar Loans with
different Interest Periods shall be considered as separate Eurodollar
Loans, even if they begin on the same date, although borrowings,
extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period.
Revolving Loans hereunder may be repaid and reborrowed in accordance
with the provisions hereof.
SUBPART 2.3. Amendment to Section 2.2(a). Section 2.2(a) of
the Existing Credit Agreement is amended in its entirety to read as
follows:
2.2 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require, the Lenders will participate
in the issuance by the Issuing Lender from time to time of such Letters
of Credit from the Closing Date until the Termination Date as the
Borrower may request, in a form acceptable to the Issuing Lender;
provided, however, that (i) the LOC Obligations outstanding shall not
at any time exceed TEN MILLION DOLLARS ($10,000,000) (the "LOC
Committed Amount") and (ii) the sum of the aggregate principal amount
of outstanding Revolving Loans plus LOC Obligations outstanding plus
the aggregate principal amount of outstanding Competitive Loans plus
the aggregate principal amount of outstanding Swingline Loans shall not
at any time exceed the aggregate Revolving Committed Amount. No Letter
of Credit shall (x) have an original expiry date more than one year
from the date of issuance or (y) as originally issued or as extended,
have an expiry date extending beyond the Termination Date. Each Letter
of Credit shall comply with the related LOC Documents. The issuance and
expiry date of each Letter of Credit shall be a Business Day.
SUBPART 2.4. Amendment to Section 2.3. Section 2.3 of the
Existing Credit Agreement is amended in its entirety to read as
follows:
2.3 Competitive Loan Subfacility.
(a) Competitive Loans. Subject to the terms and
conditions and relying upon the representations and
warranties herein set forth, the Borrower may, from time to
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time from the Closing Date until the Termination Date, request and each
Lender may, in its sole discretion, agree to make, Competitive Loans to
the Borrower; provided further, however, that (i) the aggregate
principal amount of outstanding Competitive Loans shall not at any time
exceed the lesser of (a) SEVENTY-FIVE MILLION DOLLARS ($75,000,000) or
(b) the Revolving Committed Amount (the "Competitive Loan Maximum
Amount"), and (ii) the sum of the aggregate principal amount of
outstanding Revolving Loans plus LOC Obligations outstanding plus the
aggregate principal amount of outstanding Competitive Loans plus the
aggregate principal amount of outstanding Swingline Loans shall not at
any time exceed the Revolving Committed Amount. Each Competitive Loan
shall be not less than $5,000,000 in the aggregate and integral
multiples of $1,000,000 in excess thereof (or the remaining portion of
the Competitive Loan Maximum Amount, if less).
(b) Competitive Bid Requests. The Borrower may solicit
Competitive Bids by delivery of a Competitive Bid Request substantially
in the form of Schedule 2.3(b)-1 to the Agent by 12:00 Noon (Charlotte,
North Carolina time) on a Business Day not less than one (1) nor more
than four (4) Business Days prior to the date of a requested
Competitive Loan borrowing. A Competitive Bid Request shall specify (i)
the date of the requested Competitive Loan borrowing (which shall be a
Business Day), (ii) the amount of the requested Competitive Loan
borrowing and (iii) the applicable Interest Periods requested and shall
be accompanied by payment of the Competitive Bid Request Fee. The Agent
shall, promptly following its receipt of a Competitive Bid Request
under this subsection (b), notify the affected Lenders of its receipt
and the contents thereof and invite the Lenders to submit Competitive
Bids in response thereto. A form of such notice is provided in Schedule
2.3(b)-2. No more than three (3) Competitive Bid Requests (e.g., the
Borrower may request Competitive Bids for no more than three (3)
different Interest Periods at a time) shall be submitted at any one
time and Competitive Bid Requests may be made no more frequently than
once every five (5) Business Days.
(c) Competitive Bid Procedure. Each Lender may, in its sole
discretion, make one or more Competitive Bids to the Borrower in
response to a Competitive Bid Request. Each Competitive Bid must be
received by the Agent not later than 10:00 A.M. (Charlotte, North
Carolina time) on the Business Day next succeeding the date of receipt
by the Agent of the related Competitive Bid Request. A Lender may offer
to make all or part of the requested Competitive Loan borrowing and may
submit multiple Competitive Bids in response to a Competitive Bid
Request. The Competitive Bid shall specify (i) the particular
Competitive Bid Request as to which the Competitive Bid is submitted,
(ii) the minimum (which shall be not less than $5,000,000 and integral
multiples of $1,000,000 in excess thereof) and maximum principal
amounts
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of the requested Competitive Loan or Loans as to which the Lender is
willing to make, and (iii) the applicable interest rate or rates and
Interest Period or Periods therefor. A form of such Competitive Bid is
provided in Schedule 2.3(c). A Competitive Bid submitted by a Lender in
accordance with the provisions hereof shall be irrevocable. The Agent
shall promptly notify the Borrower of all Competitive Bids made and the
terms thereof.
(d) Submission of Competitive Bids by Agent. If the Agent, in
its capacity as a Lender, elects to submit a Competitive Bid in
response to any Competitive Bid Request, it shall submit such
Competitive Bid directly to the Borrower one-half of an hour earlier
than the latest time at which the other Lenders are required to submit
their Competitive Bids to the Agent in response to such Competitive Bid
Request pursuant to subsection (c) above.
(e) Acceptance of Competitive Bids. The Borrower may, in its
sole and absolute discretion, subject only to the provisions of this
subsection (e), accept or refuse any Competitive Bid offered to it. To
accept a Competitive Bid, the Borrower shall give written notification
(or telephone notice promptly confirmed in writing) substantially in
the form of Schedule 2.3(e) of its acceptance of any or all such
Competitive Bids to the Agent by 11:00 A.M. (Charlotte, North Carolina
time) on the date on which notice of the Competitive Bids is given to
the Borrower by the Agent; provided, however, (i) the failure by the
Borrower to give timely notice of its acceptance of a Competitive Bid
shall be deemed to be a refusal thereof, (ii) the Borrower may accept
Competitive Bids only in ascending order of rates, (iii) the aggregate
amount of Competitive Bids accepted by the Borrower shall not exceed
the principal amount specified in the Competitive Bid Request, (iv) the
Borrower may accept a portion of a Competitive Bid in the event, and to
the extent, acceptance of the entire amount thereof would cause the
Borrower to exceed the principal amount specified in the Competitive
Bid Request, subject however to the minimum amounts provided herein
(and provided that where two or more Lenders submit such a Competitive
Bid at the same Competitive Bid Rate, then pro rata between or among
such Lenders) and (v) no bid shall be accepted for a Competitive Loan
unless such Competitive Loan is in a minimum principal amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof,
except that where a portion of a Competitive Bid is accepted in
accordance with the provisions of subsection (iv) hereof, then in a
minimum principal amount of $5,000,000 and integral multiples of
$1,000,000 in excess thereof (but not in any event less than the
minimum amount specified in the Competitive Bid), and in calculating
the pro rata allocation of acceptances of portions of multiple bids at
a particular Competitive Bid Rate pursuant to subsection (iv) hereof,
the amounts shall be rounded to integral multiples of $1,000,000 in a
manner which shall be
- 14 -
in the discretion of the Borrower. A notice of acceptance of a
Competitive Bid given by the Borrower in accordance with the provisions
hereof shall be irrevocable. The Agent shall, not later than 12:00 Noon
(Charlotte, North Carolina time) on the date of receipt by the Agent of
a notification from the Borrower of its acceptance and/or refusal of
Competitive Bids, notify each affected Lender of its receipt and the
contents thereof. Upon its receipt from the Agent of notification of
the Borrower's acceptance of its Competitive Bid in accordance with the
terms of this subsection (e), each successful bidding Lender will
thereupon become bound, subject to the other applicable conditions
hereof, to make the Competitive Loan in respect of which its bid has
been accepted.
(f) Funding of Competitive Loans. Each Lender which is to make
a Competitive Loan shall make its Competitive Loan borrowing available
to the Agent for the account of the Borrower at the office of the Agent
specified in Section 11.1, or at such other office as the Agent may
designate in writing, by 1:30 P.M. (Charlotte, North Carolina time) on
the date specified in the Competitive Bid Request in Dollars and in
funds immediately available to the Agent. Such borrowing will then be
made available to the Borrower by crediting the account of the Borrower
on the books of such office with the aggregate of the amount made
available to the Agent by the applicable Competitive Loan Lenders and
in like funds as received by the Agent.
(g) Maturity of Competitive Loans. Each Competitive Loan shall
mature and be due and payable in full on the last day of the Interest
Period applicable thereto. Unless the Borrower shall give notice to the
Agent otherwise, the Borrower shall be deemed to have requested a
Revolving Loan borrowing in the amount of the maturing Competitive
Loan, the proceeds of which will be used to repay such Competitive
Loan.
(h) Interest on Competitive Loans. Subject to the provisions
of Section 3.1, Competitive Loans shall bear interest in each case at
the Competitive Bid Rate applicable thereto. Interest on Competitive
Loans shall be payable in arrears on each Interest Payment Date.
(i) Competitive Loan Notes. The Competitive Loans made by each
Lender shall be evidenced by a duly executed promissory note of the
Borrower to each such Lender in an original principal amount equal to
the Competitive Loan Maximum Amount and substantially in the form of
Schedule 2.3(i) (such promissory note, as amended, modified, extended,
renewed or replaced from time to time is hereinafter referred to
individually as a "Competitive Note" and collectively as the
"Competitive Notes").
- 15 -
SUBPART 2.5. Addition of Section 2.4. The Existing Credit
Agreement is amended by adding the following new Section 2.4
immediately succeeding Section 2.3 thereof::
2.4 Swingline Loan Subfacility.
(a) Swingline Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties herein
set forth, the Swingline Lender, in its individual capacity, agrees to
make certain revolving credit loans to the Borrower (each a "Swingline
Loan" and, collectively, the "Swingline Loans") from time to time from
the Closing Date until the Termination Date for the purposes
hereinafter set forth; provided further, however, that (i) the
aggregate principal amount of Swingline Loans outstanding at any time
shall not exceed TWO MILLION DOLLARS ($2,000,000.00) (the "Swingline
Committed Amount"), and (ii) the aggregate principal amount of
outstanding Revolving Loans plus LOC Obligations outstanding plus the
aggregate principal amount of outstanding Competitive Loans plus the
aggregate principal amount of outstanding Swingline Loans shall not
exceed the Revolving Committed Amount. Swingline Loans hereunder shall
be made as Base Rate Loans or Quoted Rate Swingline Loans as the
Borrower may request in accordance with the provisions of this Section
2.4, and may be repaid and reborrowed in accordance with the provisions
hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower
desires a Swingline Loan advance hereunder it shall give
written notice (or telephone notice promptly confirmed in
writing) to the Swingline Lender not later than 12:00 Noon
(Charlotte, North Carolina time) on the Business Day of the
requested Swingline Loan advance. Each such notice shall be
irrevocable and shall specify (A) that a Swingline Loan
advance is requested, (B) the date of the requested Swingline
Loan advance (which shall be a Business Day) and (C) the
principal amount of the Swingline Loan advance requested. Each
Swingline Loan shall be made as a Base Rate Loan or a Quoted
Rate Swingline Loan and shall have such maturity date as the
Swingline Lender and the Borrower shall agree upon receipt by
the Swingline Lender of any such notice from the Borrower. The
Swingline Lender shall initiate the transfer of funds
representing the Swingline Loan advance to the Borrower by
3:00 P.M. (Charlotte, North Carolina time) on the Business Day
of the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall
be in a minimum principal amount of $100,000 and in integral
multiples of $50,000 in excess thereof (or
- 16 -
the remaining amount of the Swingline Committed Amount,
if less).
(iii) Repayment of Swingline Loans. The principal amount
of all Swingline Loans shall be due and payable on the earlier
of (A) the maturity date agreed to by the Swingline Lender and
the Borrower with respect to such Loan (which maturity date
shall not be a date more than seven (7) Business Days from the
date of advance thereof) or (B) the Termination Date. The
Swingline Lender may, at any time, in its sole discretion, by
written notice to the Borrower and the Lenders, demand
repayment of its Swingline Loans by way of a Revolving Loan
advance, in which case the Borrower shall be deemed to have
requested a Revolving Loan advance comprised solely of Base
Rate Loans in the amount of such Swingline Loans; provided,
however, that any such demand shall be deemed to have been
given one Business Day prior to the Termination Date and on
the date of the occurrence of any Event of Default described
in Section 9.1 and upon acceleration of the indebtedness
hereunder and the exercise of remedies in accordance with the
provisions of Section 9.2. Each Lender hereby irrevocably
agrees to make its pro rata share of each such Revolving Loan
in the amount, in the manner and on the date specified in the
preceding sentence notwithstanding (I) the amount of such
borrowing may not comply with the minimum amount for advances
of Revolving Loans otherwise required hereunder, (II) whether
any conditions specified in Section 5.2 are then satisfied,
(III) whether a Default or an Event of Default then exists,
(IV) failure of any such request or deemed request for
Revolving Loan to be made by the time otherwise required
hereunder, (V) whether the date of such borrowing is a date on
which Revolving Loans are otherwise permitted to be made
hereunder or (VI) any termination of the Commitments relating
thereto immediately prior to or contemporaneously with such
borrowing. In the event that any Revolving Loan cannot for any
reason be made on the date otherwise required above
(including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower or any other Credit Party), then each
Lender hereby agrees that it shall forthwith purchase (as of
the date such borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) from the Swingline
Lender such participations in the outstanding Swingline Loans
as shall be necessary to cause each such Lender to share in
such Swingline Loans ratably based upon its Commitment
Percentage of the Revolving Committed Amount (determined
before giving effect to any termination of the Commitments
pursuant to Section 3.4), provided that (A) all interest
payable on the Swingline Loans shall
- 17 -
be for the account of the Swingline Lender until the date as
of which the respective participation is purchased and (B) at
the time any purchase of participations pursuant to this
sentence is actually made, the purchasing Lender shall be
required to pay to the Swingline Lender, to the extent not
paid to the Swingline Lender by the Borrower in accordance
with the terms of subsection (c)(ii) hereof, interest on the
principal amount of participation purchased for each day from
and including the day upon which such borrowing would
otherwise have occurred to but excluding the date of payment
for such participation, at the rate equal to the Federal Funds
Rate.
(c) Interest on Swingline Loans. (i) Subject to the
provisions of Section 3.1, each Swingline Loan shall bear
interest at a per annum rate (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal
to:
(A) Base Rate Loans. If such Swingline Loan is a Base
Rate Loan, the Base Rate.
(B) Quoted Rate Swingline Loans. If such Swingline Loan
is a Quoted Rate Swingline Loan, Quoted Rate applicable
thereto.
Notwithstanding any other provision to the contrary set forth in this
Credit Agreement, in the event that the principal amount of any Quoted
Rate Swingline Loan is not repaid on the last day of the Interest
Period for such Loan, then such Loan shall be automatically converted
into a Base Rate Loan at the end of such Interest Period.
(ii) Payment of Interest. Interest on Swingline Loans shall be
payable in arrears on each applicable Interest Payment Date (or at such
other times as may be specified herein).
(d) Swingline Note. The Swingline Loans shall be evidenced by
a duly executed promissory note of the Borrower to the Swingline Lender
in an original principal amount equal to the Swingline Committed Amount
substantially in the form of Schedule 2.4(d) (such promissory note, as
amended, modified, extended, renewed or replaced from time to time is
hereinafter referred to as the "Swingline Note").
SUBPART 2.6. Amendment to Section 3.2. The first sentence of
Section 3.2 of the Existing Credit Agreement is amended in its entirety
to read as follows:
3.2 Extension and Conversion. Subject to the terms of Section
5.2, the Borrower shall have the option, on any Business Day, to extend
existing Loans into a subsequent permissible Interest Period or to
convert Loans into Loans
- 18 -
of another type; provided, however, that (i) except as provided in
Section 3.8, Eurodollar Loans may be converted into Base Rate Loans
only on the last day of the Interest Period applicable thereto, (ii)
Eurodollar Loans may be extended, and Base Rate Loans may be converted
into Eurodollar Loans, only if no Default or Event of Default is in
existence on the date of extension or conversion, (iii) Loans extended
as, or converted into, Eurodollar Loans shall be subject to the terms
of the definition of "Interest Period" set forth in Section 1.1 and
shall be in such minimum amounts as provided in Section 2.1(b)(ii),
(iv) no more than 12 separate Eurodollar Loans shall be outstanding
hereunder at any time, (v) any request for extension or conversion of a
Eurodollar Loan which shall fail to specify an Interest Period shall be
deemed to be a request for an Interest Period of one month and (vi)
Competitive Loans and Swingline Loans may not be extended or converted
pursuant to this Section 3.2.
SUBPART 2.7. Amendment to Section 3.3. Section 3.3 of the
Existing Credit Agreement is amended in its entirety to read as
follows:
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the right
to prepay Loans in whole or in part from time to time without premium
or penalty; provided, however, that (i) Eurodollar Loans may only be
prepaid on three Business Days' prior written notice to the Agent and
specifying the applicable Loans to be prepaid; (ii) any prepayment of
Eurodollar Loans, Competitive Loans or Quoted Rate Swingline Loans will
be subject to Section 3.11; and (iii) each such partial prepayment of
Loans shall be in a minimum principal amount of (A) in the case of
Revolving Loans and Competitive Loans, $2,000,000 and integral
multiples of $1,000,000 in excess thereof and (B) in the case of
Swingline Loans, $100,000 and integral multiples of $50,000 in excess
thereof. Subject to the foregoing terms, amounts prepaid hereunder
shall be applied as the Borrower may elect; provided that if the
Borrower fails to specify a voluntary prepayment then such prepayment
shall be applied first to Base Rate Loans and then to Eurodollar Loans
in direct order of Interest Period maturities.
(b) Mandatory Prepayments.
(i) If at any time, (A) the sum of the aggregate amount
of outstanding Revolving Loans plus LOC Obligations outstanding plus
the aggregate principal amount of outstanding Competitive Loans plus
the aggregate principal amount of outstanding Swingline Loans shall
exceed the Revolving Committed Amount or (B) the aggregate principal
amount of outstanding Competitive Loans shall exceed the Competitive
Loan Maximum Amount, the Borrower promises to
- 19 -
prepay immediately the outstanding principal balance on the Revolving
Loans and/or Competitive Loans in an amount sufficient to eliminate
such excess.
(ii) (A) Upon the occurrence of any Excess Sale Event,
the Borrower shall, immediately following the related Application
Period, prepay the Loans in an amount equal to the Excess Sale Proceeds
not applied (or caused to be applied) by the Borrower during the
related Application Period to the purchase, acquisition or construction
of Alternative Assets as contemplated by the terms of Section
8.4(b)(v)(B)(1) multiplied by the percentage determined by dividing (1)
the then current Revolving Committed Amount by (2) the sum of (I) the
then current Revolving Committed Amount plus (II) if the Senior
Noteholders shall require the Borrower to prepay the Senior Notes with
any such Excess Sale Proceeds, the aggregate then outstanding principal
amount of all Senior Notes.
(B) Immediately upon the occurrence of the Fresno Asset Sale,
the Borrower shall prepay the Loans in an amount equal to 50% of the
Net Proceeds thereof in excess of $900,000.
(iii) To the extent that the aggregate cumulative amount
of cash (including cash received in respect of non-cash consideration)
Net Proceeds from Equity Transactions received by the Borrower or any
of its Subsidiaries during any fiscal year exceeds $500,000, the
Borrower shall, within 60 days of receipt of any such Net Proceeds at
any time that the Consolidated Leverage Ratio as of the most recent
fiscal quarter end with respect to which the Agent shall have received
the Required Financial Information is greater than 2.50 to 1.00, prepay
the Loans in an amount equal to 50% of the portion of such cash Net
Proceeds exceeding $500,000 not applied by the Borrower within such 60
day period to pay the purchase price in connection with any acquisition
permitted by the terms of Section 8.4(c).
(c) General. All prepayments made pursuant to this Section 3.3
shall be subject to Section 3.11, shall be applied first to Base Rate
Loans and then to Eurodollar Loans in direct order, shortest to
longest, of Interest Period maturities and shall be accompanied by
accrued interest on the principal amount being prepaid to the date of
prepayment and all other amounts due and payable hereunder with respect
to such Loans. Amounts prepaid may be reborrowed in accordance with the
provisions hereof.
SUBPART 2.8. Amendment to Section 3.4(a). Section 3.4 of the
Existing Credit Agreement is amended in its entirety to read as
follows:
3.4 Termination and Reduction of Revolving Committed
Amount.
- 20 -
(a) Voluntary Reductions. The Borrower may from time to time
permanently reduce or terminate the Revolving Committed Amount in whole
or in part (in minimum aggregate amounts of $5,000,000 or in integral
multiples of $1,000,000 in excess thereof (or, if less, the full
remaining amount of the then applicable Revolving Committed Amount))
upon three Business Days' prior written notice to the Agent; provided,
however, no such termination or reduction shall be made which would
reduce the Revolving Committed Amount to an amount less than the
aggregate principal amount of outstanding Revolving Loans plus LOC
Obligations outstanding plus the aggregate principal amount of
outstanding Competitive Loans plus the aggregate principal amount of
outstanding Swingline Loans. The Agent shall promptly notify each of
the Lenders of receipt by the Agent of any notice from the Borrower
pursuant to this Section 3.4(a).
(b) Mandatory Reductions.
(i) On any date that the Revolving Loans are required to be
prepaid or the Revolving Commitments are required to be reduced
pursuant to the terms of Section 3.3(b), the Revolving Committed Amount
automatically shall be permanently reduced by the amount of such
required
prepayment.
(ii) On any date that the Borrower shall enter into a
Permitted Receivables Financing, the Revolving Committed Amount
automatically shall be permanently reduced by the facility commitment
amount of such Permitted Receivables
Financing.
(c) Termination Date. The Commitments of the Lenders
and the Issuing Lender shall automatically terminate on the
Termination Date.
SUBPART 2.9. Amendment to Section 3.5(a). Subsections (a), (c)
and (d) of Section 3.5 of the Existing Credit Agreement are amended in
their entireties to read as follows:
3.5 Fees.
(a) Facility Fee. In consideration of the Revolving
Commitments of the Lenders hereunder, the Borrower agrees to pay to the
Agent for the account of each Lender a fee (the "Facility Fee") on such
Lender's Commitment Percentage of the Revolving Committed Amount
(regardless of usage, but taking into account any permanent reductions
in the Revolving Committed Amount) computed at a per annum rate for
each day during the applicable Facility Fee Calculation Period
(hereinafter defined) at a rate equal to the Applicable Margin in
effect from time to time. The Facility Fee shall commence to accrue on
the Closing Date and shall be due and payable in arrears on the
fifteenth (15th) day of
- 21 -
each January, April, July and October (and the Termination Date) for
the immediately preceding fiscal quarter (or portion thereof) (each
such fiscal quarter or portion thereof for which the Facility Fee is
payable hereunder being herein referred to as an "Facility Fee
Calculation Period"), beginning with the first of such dates to occur
after the Closing Date.
* * * * *
(c) Administrative Fees. The Borrower agrees to pay
to the Agent, for its own account and for the account of
NationsBanc Capital Markets, Inc., as applicable, the fees
referred to in the Agent's Fee Letter (collectively, the
"Agent's Fees").
(d) Competitive Bid Request Fee. The Borrower shall make
payment to the Agent for each Competitive Bid Request of a Competitive
Bid administrative fee (the "Competitive Bid Request Fee") of $1500
concurrently with delivery of any Competitive Bid Request (whether or
not any Competitive Bid is offered by a Lender or accepted by the
Borrower and whether or not any Competitive Loan is extended by any
Lender in connection with such Competitive Bid Request).
SUBPART 2.10. Amendment to Section 3.11. The first sentence of
Section 3.11 of the Existing Credit Agreement is amended in its
entirety to read as follows:
3.11 Indemnity. The Borrower promises to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur (other than through such Lender's gross
negligence or willful misconduct) as a consequence of (a) default by
the Borrower in making a borrowing of, conversion into or continuation
of Eurodollar Loans or Quoted Rate Swingline Loans after the Borrower
has given a notice requesting the same in accordance with the
provisions of this Credit Agreement, (b) default by the Borrower in
making any prepayment of a Eurodollar Loan or Quoted Rate Swingline
Loan after the Borrower has given a notice thereof in accordance with
the provisions of this Credit Agreement or (c) the making of a
prepayment of Eurodollar Loans or Quoted Rate Swingline Loans on a day
which is not the last day of an Interest Period with respect thereto.
SUBPART 2.11. Amendment to Section 3.12(a). Section 3.12(a) of
the Existing Credit Agreement is amended in its entirety to read as
follows:
3.12 Pro Rata Treatment. Except to the extent
otherwise provided herein:
(a) Loans. Each Loan, each payment or prepayment of
principal of any Loan or reimbursement obligations arising
- 22 -
from drawings under Letters of Credit, each payment of interest on the
Loans or reimbursement obligations arising from drawings under Letters
of Credit, each payment of Facility Fees, each payment of the Standby
Letter of Credit Fee, each payment of the Trade Letter of Credit Fee,
each reduction of the Revolving Committed Amount and each conversion or
extension of any Loan, shall be allocated pro rata among the Lenders in
accordance with the respective principal amounts of their outstanding
Loans and Participation Interests. With respect to Competitive Loans,
if the Borrower fails to specify the particular Competitive Loan or
Loans as to which any payment or other amount should be applied and it
is not otherwise clear as to the particular Competitive Loan or Loans
to which such payment or other amounts relate, or any such payment or
other amount is to be applied to Competitive Loans without regard to
any such direction by the Borrower, then each payment or prepayment of
principal on Competitive Loans and each payment of interest or other
amount on or in respect of Competitive Loans, shall be allocated pro
rata among the relevant Competitive Loan Lenders in accordance with the
then outstanding amounts of their respective Competitive Loans.
SUBPART 2.12. Amendments to Section 5.1. The introductory
paragraph and subsection (c) of Section 5.1 of the Existing Credit
Agreement are amended in their entireties to read as follows:
5.1 Closing Conditions. The obligation of the Lenders to enter
into this Credit Agreement and to make the initial Loans or the Issuing
Lender to issue the initial Letter of Credit, whichever shall occur
first, shall be subject to satisfaction of the following conditions (in
form and substance acceptable to the Lenders):
* * * * *
(c) [reserved];
SUBPART 2.13. Amendments to Section 5.2. The introductory
paragraph and subsection (i) of Section 5.2 of the Existing Credit
Agreement are amended in their entireties to read as follows:
5.2 Conditions to all Extensions of Credit. The obligations of
each Lender to make, convert or extend any Loan and of the Issuing
Lender to issue or extend Letters of Credit (including the initial
Loans and the initial Letter of Credit) are subject to satisfaction of
the following conditions in addition to satisfaction on the Closing
Date of the conditions set forth in Section 5.1:
(i) The Borrower shall have delivered (A) in
the case of any Revolving Loan, an appropriate Notice
- 23 -
of Borrowing or Notice of Extension/Conversion or (B) in the
case of any Letter of Credit, the Issuing Lender shall have
received an appropriate request for issuance in accordance
with the provisions of Section 2.2(b);
SUBPART 2.14. Amendment to Section 6.15. Section 6.15 of the
Existing Credit Agreement is amended in its entirety to read as
follows:
6.15 Purpose of Loans and Letters of Credit. The proceeds of
the Loans hereunder shall be used solely by the Borrower (i) to finance
or refinance the Stock Repurchase (if any), (ii) for the working
capital and general corporate purposes of the Borrower and its Domestic
Subsidiaries and (iii) to finance acquisitions by the Borrower. The
Letters of Credit shall be used only for or in connection with appeal
bonds, reimbursement obligations arising in connection with surety and
reclamation bonds, reinsurance, domestic or international trade
transactions and obligations not otherwise aforementioned relating to
transactions entered into by the Borrower in the ordinary course of
business.
SUBPART 2.15. Amendment to Section 7.11. Section 7.11 of the
Existing Credit Agreement is amended in its entirety to read as
follows:
7.11 Financial Covenants.
(a) Consolidated Net Worth. Consolidated Net Worth at all
times shall be no less than $45,000,000, increased on a cumulative
basis as of the last day of each fiscal year commencing with the last
day of fiscal year 1996, by an amount equal to 30% of Consolidated Net
Income for the fiscal year then ended.
(b) Consolidated Leverage Ratio. The Consolidated
Leverage Ratio at each Calculation Date shall be no greater
than the following proportions:
Period Ratio
------ -----
For any first fiscal 3.25 to 1.00
quarter period, second
fiscal quarter period or
fourth fiscal quarter
period occurring from
the Closing Date
through the last day of
fiscal year 1996 of the
Borrower
- 24 -
For any third fiscal 3.75 to 1.00
quarter period occurring
from the Closing Date
through the last day of
fiscal year 1996 of the
Borrower
For any first fiscal 3.00 to 1.00
quarter period, second
fiscal quarter period or
fourth fiscal quarter
period occurring from
the first day of fiscal
year 1997 of the Borrower
through the last day of
such fiscal year
For any third fiscal 3.50 to 1.00
quarter period occurring
from the first day of
fiscal year 1997 of the
Borrower through the last
day of such fiscal year
For any first fiscal 2.75 to 1.00
quarter period, second
fiscal quarter period or
fourth fiscal quarter
period occurring from
the first day of fiscal
year 1998 of the Borrower
through the last day of
such fiscal year
For any third fiscal 3.25 to 1.00
quarter period occurring
from the first day of
fiscal year 1998 of the
Borrower through the last
day of such fiscal year
For any first fiscal 2.50 to 1.00
quarter period, second
fiscal quarter period or
fourth fiscal quarter
period occurring from
the first day of fiscal
year 1999 of the Borrower
and thereafter
- 25 -
For any third fiscal 3.00 to 1.00
quarter period occurring
from the first day of
fiscal year 1999 of the
Borrower and thereafter
(c) Consolidated Fixed Charge Coverage Ratio. The
Consolidated Fixed Charge Coverage Ratio at each Calculation Date shall
be no less than 1.30 to 1.00.
(d) Consolidated Interest Coverage Ratio. The
Consolidated Interest Coverage Ratio at each Calculation Date shall be
no less than 2.00 to 1.00.
(e) Consolidated Funded Indebtedness to Capitalization
Ratio. The Consolidated Funded Indebtedness to
Capitalization Ratio at each Calculation Date shall be no
greater than the following proportions:
Period Ratio
------ -----
For any fiscal quarter 0.70 to 1.00
period occurring from
from the first day of the
third fiscal quarter period
of 1996 through the last
day of fiscal year 1997
of the Borrower
For any fiscal quarter 0.65 to 1.00
occurring from the first
day of fiscal year 1998 of
the Borrower through the
last day of such fiscal year
For any fiscal quarter 0.60 to 1.00
period occurring from the
first day of fiscal year
1999 of the Borrower and
thereafter
SUBPART 2.16. Amendment to Section 8.1. Section 8.1 of the
Existing Credit Agreement is amended in its entirety to read as
follows:
8.1 Indebtedness. The Borrower will not, nor will it permit
any of its Subsidiaries to, contract, create, incur, assume or permit
to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement
and the other Credit Documents;
(b) Indebtedness of the Borrower and any of its
Subsidiaries existing as of the Closing Date set forth in
Schedule 8.1 (and renewals, refinancings and extensions
- 26 -
thereof on terms and conditions no less favorable to such
Person than such existing Indebtedness);
(c) purchase money Indebtedness (including Capital Leases)
hereafter incurred by the Borrower or any of its Foreign Subsidiaries
to finance the purchase of fixed assets provided that (i) the aggregate
principal amount of such Indebtedness plus the aggregate outstanding
principal amount of Indebtedness permitted pursuant to clause (b) above
and clause (i)(i) below shall not exceed $10,000,000 at any time, (ii)
such Indebtedness when incurred shall not exceed the purchase price of
the asset(s) financed and (iii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(d) unsecured Indebtedness of the Borrower or any of its
Foreign Subsidiaries with respect to letters of credit (other than
Letters of Credit issued hereunder) provided that the aggregate maximum
amount available to be drawn under all such letters of credit, together
with all unreimbursed drawings with respect thereto, shall not exceed
$10,000,000 at any time outstanding;
(e) obligations of the Borrower in respect of interest rate
protection agreements, foreign currency exchange, commodity purchase or
option agreements or other interest or exchange rate or commodity price
hedging agreements entered into in order to manage existing or
anticipated interest rate, exchange rate or commodity price risks and
not for speculative purposes;
(f) obligations in connection with any Permitted
Receivables Financing;
(g) intercompany Indebtedness of Bevis, Seal and Hunt Europe
owing to the Borrower to the extent permitted by the definition of
"Permitted Investments" set forth in Section 1.1;
(h) Indebtedness arising under the Senior Note Agreement and
the Senior Notes in an aggregate principal amount of up to $50,000,000;
and
(i) in addition to the Indebtedness otherwise permitted
by this Section 8.1,
(i) other Indebtedness hereafter incurred by the Borrower or
any of its Foreign Subsidiaries provided that (A) in the case
of any such Indebtedness incurred by the Borrower, the loan
documentation with respect to such Indebtedness shall not
contain covenants or default provisions relating to the
Borrower and its Subsidiaries that are more restrictive than
the covenants and default provisions contained in the
- 27 -
Credit Documents, (B) on the date of incurrence of such
Indebtedness after giving effect on a Pro Forma Basis to the
incurrence of such Indebtedness and to the concurrent
retirement of any other Indebtedness of the Borrower or any of
its Subsidiaries, no Default or Event of Default would exist
hereunder and (C) the aggregate principal amount of such
Indebtedness plus the aggregate outstanding principal amount
of Indebtedness permitted pursuant to clauses (b) and (c)
above shall not exceed $10,000,000 at any time; and
(ii) (A) Guaranty Obligations of the Borrower with respect to
any Indebtedness of a Foreign Subsidiary permitted under this
Section 8.1 and (B) Guaranty Obligations of any Subsidiary of
the Borrower that is a Guarantor with respect to any
Indebtedness of the Borrower permitted under this Section 8.1.
Notwithstanding the foregoing of this Section 8.1, the aggregate
outstanding principal amount of all Indebtedness hereafter incurred by
any Subsidiaries of the Borrower (other than Indebtedness permitted
under subsection (b) and (g) hereof) plus the aggregate outstanding
principal amount of all Indebtedness secured by Liens permitted under
subsection (xiii) of the definition of "Permitted Liens" plus the
aggregate outstanding obligations incurred in transactions permitted by
Section 8.12 shall not exceed, at any time, 20% of Consolidated Net
Worth as of the then most recent Calculation Date with respect to which
the Agent shall have received the Required Financial Information.
SUBPART 2.17. Amendments to Section 8.4. Subsections (b) and
(c) of Section 8.4 of the Existing Credit Agreement are amended in
their entireties to read as follows:
8.4 Consolidation, Merger, Sale or Purchase of Assets,
etc. The Borrower will not, nor will it permit any of its
Subsidiaries to:
* * * * *
(b) sell, lease, transfer or otherwise dispose of any Property
(including without limitation pursuant to any sale and leaseback
transaction) other than (i) the sale of inventory in the ordinary
course of business for fair consideration, (ii) the sale or disposition
of machinery and equipment no longer used or useful in the conduct of
such Person's business, (iii) in a Permitted Receivables Financing,
(iv) the Fresno Asset Sale, provided that the Borrower shall (A)
immediately repay or prepay in full the industrial revenue bond
financing in an outstanding principal amount as of the Closing Date of
approximately $1,600,000 relating to such assets and (B) prepay the
Loans in connection with such asset sale to the extent required by
Section 3.3(b)(ii)(B) and (v) other sales of assets,
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provided that (A) after giving effect on a Pro Forma Basis to such sale
or other disposition, no Default or Event of Default would exist
hereunder and (B) the Borrower shall give notice to the Agent and each
of the Lenders specifying the anticipated or actual date of such asset
sale, briefly describing the assets sold or to be sold and setting
forth the net book value of such assets and the aggregate consideration
and Net Proceeds to be received for such assets in connection with such
asset sale, and thereafter the Borrower shall (1) within the period of
twelve months following the consummation of such asset sale (with
respect to any such asset sale, the "Application Period"), apply (or
cause its applicable Subsidiary to apply) an amount equal to the Excess
Sale Proceeds of such asset sale to the purchase, acquisition or, in
the case of real property, construction of Alternative Assets in a
transaction complying with all of the terms and conditions of this
Credit Agreement or (2) prepay the Loans in connection with such asset
sale to the extent required by Section 3.3(b)(ii); or
(c) acquire all or any portion of the capital stock or
securities of any other Person or purchase, lease or otherwise acquire
(in a single transaction or a series of related transactions) all or
any substantial part of the Property of any other Person unless (i)
such Property or Person represents operations similar to those of
Borrower and its Subsidiaries, (ii) no Default or Event of Default
exists hereunder, and (iii) after giving effect to such transaction, no
Default or Event of Default would exist hereunder.
SUBPART 2.18. Amendment to Section 8.6. Section 8.6 of the
Existing Credit Agreement is amended in its entirety to read as
follows:
8.6 Restricted Payments. The Borrower will not, nor will it
permit any of its Subsidiaries to, directly or indirectly declare,
order, make or set apart any sum for or pay any Restricted Payment,
except (i) to make (A) dividends payable solely in the same class of
capital stock of such Person and (B) other Restricted Payments payable
solely in common stock of such Person, (ii) to make dividends or other
distributions payable to the Borrower (directly or indirectly through
Subsidiaries of the Borrower), (iii) as permitted by Section 8.7 and
(iv) so long as no Default or Event of Default exists hereunder, other
Restricted Payments made by the Borrower.
SUBPART 2.19. Amendment to Section 8.7. Section 8.7 of the
Existing Credit Agreement is amended in its entirety to read as
follows:
8.7 Prepayments of Indebtedness, etc. The Borrower
will not, nor will it permit any of its Subsidiaries to, (i)
if any Default or Event of Default has occurred and is
- 29 -
continuing or would be directly or indirectly caused as a result
thereof, make (or give any notice with respect thereto) any voluntary
or optional payment or prepayment or redemption or acquisition for
value of (including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the
purpose of paying when due), refund, refinance or exchange of any other
Indebtedness (other than Subordinated Indebtedness) or (ii) make (or
give any notice with respect thereto) any voluntary or optional payment
or prepayment or redemption or acquisition for value of (including
without limitation, by way of depositing money or securities with the
trustee with respect thereto before due for the purpose of paying when
due), refund, refinance or exchange of any Indebtedness subordinated to
the obligations of the Borrower or the Guarantors hereunder or (iii)
amend, modify or change its articles of incorporation (or corporate
charter or other similar organizational document) or bylaws (or other
similar document) where such change would have a Material Adverse
Effect.
SUBPART 2.20. Amendment to Section 8.12. Section 8.12 of the
Existing Credit Agreement is amended in its entirety to read as
follows:
8.12 Sale Leasebacks. The Borrower will not, nor will it
permit any of its Subsidiaries to, directly or indirectly, become or
remain liable as lessee or as guarantor or other surety with respect to
any lease, whether an Operating Lease or a Capital Lease, of any
Property (whether real or personal or mixed), whether now owned or
hereafter acquired, (i) which such Person has sold or transferred or is
to sell or transfer to any other Person other than the Borrower or (ii)
which such Person intends to use for substantially the same purpose as
any other Property which has been sold or is to be sold or transferred
by such Person to any other Person in connection with such lease that
would cause the aggregate outstanding obligations of the Borrower and
its Subsidiaries in respect of all such transactions plus the aggregate
outstanding principal amount of all Indebtedness secured by Liens
permitted under subsection (xiii) of the definition of "Permitted
Liens" plus the aggregate outstanding principal amount of all
Indebtedness of all Subsidiaries of the Borrower to exceed, at any
time, 20% of Consolidated Net Worth as of the then most recent
Calculation Date with respect to which the Agent shall have received
the Required Financial Information.
SUBPART 2.21. Amendment to Section 8.13. Section 8.13 of the
Existing Credit Agreement is amended in its entirety to read as
follows:
8.13 No Further Negative Pledges. The Borrower will
not, nor will it permit any of its Subsidiaries to, enter
into, assume or become subject to any agreement prohibiting
- 30 -
or otherwise restricting the creation or assumption of any Lien upon
its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is
given for some other obligation, other than (i) pursuant to the Senior
Note Agreement and the Senior Notes, in each case as in effect as of
August 1, 1996, and (ii) prohibitions against other encumbrances on
specific Property encumbered to secure payment of particular
Indebtedness (which Indebtedness relates solely to such specific
Property, and improvements and accretions thereto, and is otherwise
permitted hereby).
SUBPART 2.22. Amendments to Section 9.1. Section 9.1 of the
Existing Credit Agreement is amended by replacing the period following
subsection (k) with a semicolon followed by the word "or" and including
the following subsection (l):
9.1 Events of Default. An Event of Default shall exist upon
the occurrence of any of the following specified events (each an "Event
of Default"):
* * * * *
(l) Senior Note Agreement. There shall occur and be
continuing any Event of Default under and as defined in the
Senior Note Agreement.
SUBPART 2.23. Amendments to Section 11.6. The last sentence of
Section 11.6 of the Existing Credit Agreement is amended in its
entirety to read as follows:
No provision of Section 2.2 may be amended without the consent
of the Issuing Lender, no provision of Section 2.4 may be amended
without the consent of the Swingline Lender and no provision of Section
10 may be amended without the consent of the Agent.
SUBPART 2.24. Amendments to Schedule 2.1(a). Schedule 2.1(a)
of the Existing Credit Agreement is hereby deleted in its entirety and
a new schedule in the form of Schedule 2.1(a) attached hereto is
substituted therefor.
SUBPART 2.25. Amendments to Schedule 2.1(b)(i). Schedule
2.1(b)(i) of the Existing Credit Agreement is hereby deleted in its
entirety and a new schedule in the form of Schedule 2.1(b)(i) attached
hereto is substituted therefor.
SUBPART 2.26. Deletion of Schedule 2.3(f). Schedule 2.3(f) of
the Existing Credit Agreement is hereby deleted in its entirety.
SUBPART 2.27. Amendments to Schedule 11.3(b). Schedule 11.3(b)
of the Existing Credit Agreement is
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hereby deleted in its entirety and a new schedule in the form of
Schedule 11.3(b) attached hereto is substituted therefor.
SUBPART 2.28. Additional Schedules. The Existing Credit
Agreement is hereby amended to include Schedule 2.3(b)-1, Schedule
2.3(b)-2, Schedule 2.3(c), Schedule 2.3(e), Schedule 2.3(i) and
Schedule 2.4(d) in the forms, respectively, of Schedule 2.3(b)-1,
Schedule 2.3(b)-2, Schedule 2.3(c), Schedule 2.3(e), Schedule 2.3(i)
and Schedule 2.4(d) attached hereto.
PART III
ASSIGNMENTS AND ASSUMPTIONS
The Existing Lenders hereby sell and assign, without recourse, to the
New Lenders, and the New Lenders hereby purchase and assume, without recourse,
from the Existing Lenders, effective as of the Amendment No. 1 Effective Date,
such interests in the Existing Lenders' rights and obligations under the
Existing Credit Agreement (including, without limitation, the Commitments of the
Existing Lenders on the Amendment No. 1 Effective Date and the Revolving Loans
and LOC Obligations which are outstanding on the Amendment No. 1 Effective Date)
as shall be necessary in order to give effect to the reallocations of the
Revolving Committed Amounts and Revolving Commitment Percentages effected by the
amendment to Schedule 2.1(a) to the Existing Credit Agreement pursuant to
Subpart 2.24. Each of the Existing Lenders and the New Lenders hereby makes and
agrees to be bound by all the representations, warranties and agreements set
forth in Section 11.3(b) of the Existing Credit Agreement (as amended hereby).
From and after the Amendment No. 1 Effective Date (i) each of the New Lenders
shall be a party to and be bound by the provisions of the Existing Credit
Agreement (as amended hereby) and, to the extent of the interests assigned
hereby, have the rights and obligations of a Lender thereunder and under the
other Credit Documents and (ii) each of the Existing Lenders shall, to the
extent of the interests assigned or terminated hereby, relinquish its rights and
be released from its obligations under the Existing Credit Agreement. The Agent
hereby agrees that no transfer fee shall be payable under Section 11.3(b) of the
Existing Credit Agreement or otherwise in connection with the assignments
effected pursuant to this Part III.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. Amendment No. 1 Effective Date. This Amendment
shall be and become effective as of the date hereof (the "Amendment No.
1 Effective Date") when all of the conditions set forth in this Subpart
4.1 shall have been satisfied, and thereafter this
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Amendment shall be known, and may be referred to, as
"Amendment No. 1."
SUBPART 4.1.1. Execution of Counterparts of Amendment. The
Agent shall have received counterparts (or other evidence of execution,
including telephonic message, satisfactory to the Agent) of this
Amendment, which collectively shall have been duly executed on behalf
of each of the Borrower, the Guarantors, the Agent and the Lenders.
SUBPART 4.1.2. Execution of Notes. The Agent shall
have received:
(a) An appropriate original Amended and Restated
Revolving Note for each applicable Lender, executed by
the Borrower;
(b) An appropriate original Competitive Note for
each applicable Lender, executed by the Borrower; and
(c) An appropriate original Swingline Note for
the Swingline Lender, executed by the Borrower.
SUBPART 4.1.3. Senior Notes.
(a) (i) The Borrower shall have entered into the Note
Purchase Agreement(s) with each holder of a Senior Note, (ii)
the Borrower shall have executed the Senior Notes and (iii)
the Agent shall have received a copy, certified by an officer
of the Borrower as true and complete, of the Note Purchase
Agreement(s) and each of the Senior Notes as originally
executed and delivered, and no amendment or modification
thereof shall have been entered into on or prior to the
Amendment No. 1 Effective Date which shall not have been
approved by each of the Lenders.
(b) The Agent shall have received a copy certified by
a secretary or assistant secretary of the Borrower of a
resolution of the directors of the Borrower approving the Note
Purchase Agreement(s).
SUBPART 4.1.4. Prepayments. The Borrower (a) shall have
received proceeds from the sale of the Senior Notes in an aggregate
principal amount of $50,000,000 and (b) shall have (i) prepaid in full
all principal, interest and other amounts owing in respect of the Term
Loan (as defined in the Existing Credit Agreement) and (ii) prepaid the
Revolving Loans to the extent necessary to reduce the aggregate
outstanding principal balance thereof, together with the aggregate
outstanding LOC Obligations, to $75,000,000.
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PART V
MISCELLANEOUS
SUBPART 5.1. Cross-References. References in this Amendment to
any Part or Subpart are, unless otherwise specified, to such Part or
Subpart of this Amendment.
SUBPART 5.2. Instrument Pursuant to Existing Credit Agreement.
This Amendment is a Credit Document executed pursuant to the Existing
Credit Agreement and shall (unless otherwise expressly indicated
therein) be construed, administered and applied in accordance with the
terms and provisions of the Existing Credit Agreement.
SUBPART 5.3. References in Other Credit Documents. At such
time as this Amendment No. 1 shall become effective pursuant to the
terms of Subpart 4.1, all references in the Credit Documents to the
"Credit Agreement" shall be deemed to refer to the Credit Agreement as
amended by this Amendment No. 1.
SUBPART 5.4. Representations and Warranties. The Borrower
hereby represents and warrants that (i) the conditions precedent to the
initial Loans and initial Letters of Credit were satisfied as of the
Closing Date (assuming satisfaction of all requirements in such
conditions that an item be in form and/or substance reasonably
satisfactory to the Agent or any Lenders or that any event or action
have been completed or performed to the reasonable satisfaction of the
Agent or any Lenders), (ii) the representations and warranties
contained in Section 6 of the Existing Credit Agreement are correct on
and as of the date hereof as though made on and as of such date and
after giving effect to the amendments contained herein and (iii) no
Default or Event of Default exists under the Existing Credit Agreement
on and as of the date hereof.
SUBPART 5.5. Counterparts. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but
one and the same agreement.
SUBPART 5.6. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF NORTH CAROLINA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
- 34 -
SUBPART 5.7. Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
[The remainder of this page has been left blank intentionally]
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Each of the parties hereto has caused a counterpart of this Amendment to be duly
executed and delivered as of the date first above written.
BORROWER: HUNT MANUFACTURING CO.
By____________________________
Title:
GUARANTORS: BEVIS CUSTOM FURNITURE, INC.
By____________________________
Title:
HUNT DATA PRODUCTS, INC.
By____________________________
Title:
HUNT HOLDINGS, INC.
By____________________________
Title:
HUNT X-ACTO, INC.
By____________________________
Title:
SEAL PRODUCTS, INC.
By____________________________
Title:
S-1
EXISTING LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By_____________________________
Title__________________________
ABN AMRO BANK N.V., NEW YORK BRANCH
By_____________________________
Title__________________________
BANQUE PARIBAS
By_____________________________
Title__________________________
BROWN BROTHERS HARRIMAN & CO.
By_____________________________
Title__________________________
THE CHASE MANHATTAN BANK, N.A.
By_____________________________
Title__________________________
CORESTATES BANK, N.A.
By_____________________________
Title__________________________
[Signatures Continue]
S-2
FIFTH THIRD BANK
By_____________________________
Title__________________________
FIRST UNION NATIONAL BANK
By_____________________________
Title__________________________
FIRST NATIONAL BANK OF CHICAGO
By_____________________________
Title__________________________
MELLON BANK, N.A.
By_____________________________
Title__________________________
SUNTRUST BANK, ATLANTA
By_____________________________
Title__________________________
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By_____________________________
Title__________________________
[Signatures Continue]
S-3
NEW LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By_____________________________
Title__________________________
BANQUE PARIBAS
By_____________________________
Title__________________________
CORESTATES BANK, N.A.
By_____________________________
Title__________________________
FIRST UNION NATIONAL BANK
By_____________________________
Title__________________________
MELLON BANK, N.A.
By_____________________________
Title__________________________
S-4
Certain schedules and/or exhibits to the foregoing agreement
have been omitted, and the Company will provide them to the Securities and
Exchange Commission upon request.
S-5