FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of April 28,
2005, among AC SAFETY HOLDING CORP. (the "Parent"), AEARO CORPORATION
("Holdings"), AEARO COMPANY I (the "Borrower" and, together with the Parent and
Holdings, the "Credit Agreement Parties"), the undersigned lenders party to the
Credit Agreement referred to below (the "Consenting Lenders"), BEAR STEARNS
CORPORATE LENDING INC., as Syndication Agent (in such capacity, the "Syndication
Agent"), NATIONAL CITY BANK OF INDIANA and WELLS FARGO BANK, N.A., as
Co-Documentation Agents (in such capacity, the "Co-Documentation Agents"), and
DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent (in such capacity,
the "Administrative Agent"). Unless otherwise defined herein, capitalized terms
used herein and defined in the Credit Agreement referred to below are used
herein as so defined.
W I T N E S S E T H :
WHEREAS, the Parent, Holdings, the Borrower, the Lenders from time to time
party thereto, the Syndication Agent, the Co-Documentation Agents and the
Administrative Agent, are party to a Credit Agreement, dated as of April 7, 2004
(as the same has been amended, restated, modified and/or supplemented to, but
not including, the date hereof, the "Credit Agreement"); WHEREAS, subject to the
terms and conditions set forth below, the parties hereto wish to amend the
Credit Agreement as provided herein;
NOW, THEREFORE, it is agreed;
A. Amendments
1. Section 1.01(c) of the Credit Agreement is hereby amended by
(a) deleting the text"and shall in no event be incurred later than the
Incremental Commitment Termination Date"appearing in said Section, (b) inserting
the text"or Euros" immediately after the text "Dollars" appearing in clause (ii)
of said Section, (c) deleting the text", provided that no Incremental Term Loans
may be made part of the Tranche of Euro Term Loans" appearing in clause (iii) of
said Section and inserting the text", provided that Incremental Term Loans may
only be added to another Tranche of Term Loans denominated in the same currency
as such Incremental Term Loans" in lieu thereof and (d) inserting the text"in
the case of Incremental Term Loans denominated in Dollars," immediately before
the text"except as hereafter provided" appearing clause (iv) of said Section.
2. Section 1.09 of the Credit Agreement is hereby amended by
inserting the text or Euro Incremental Term Loans" after each instance of the
text "Euro Term Loans" appearing in said Section.
3. Section 1.10 of the Credit Agreement is hereby amended by
(a) inserting the text "or Euro Incremental Term Loans" after each instance of
the text "Euro Term Loans" appearing in said Section and (b) inserting the text
"or Euro Incremental Term Loan" after each instance of the text "Euro Term Loan"
appearing in said Section.
4. Section 1.15(a) of the Credit Agreement is hereby amended by
(a) deleting the text "but excluding the Tranche of Euro Term Loans" appearing
in the lead-in of said Section and inserting the text "provided that Incremental
Term Loans may only be added to another Tranche of Term Loans denominated in the
same currency as such Incremental Term Loans" in lieu thereof, (b) deleting the
text "and prior to the Incremental Term Loan Commitment Termination Date", (c)
deleting the amount "$60,000,000" and inserting the amount "$75,000,000 (or the
Dollar Equivalent thereof with respect to Euro Incremental Term Loans)" in lieu
thereof and (d) deleting each instance of the text", provided that no Tranche of
Incremental Term Loans may be added to the Tranche of Euro Term Loans" appearing
in clause (v) and (vi) of said Section and inserting the text "provided that
Incremental Term Loans may only be added to another Tranche of Term Loans
denominated in the same currency as such Incremental Term Loans" in lieu
thereof.
5. Section 4.02(e) of the Credit Agreement is hereby amended by
(a) deleting the word "and" appearing immediately before clause (vii) of said
Section and inserting a comma (",") in lieu thereof and (b) inserting the text
", (viii) so long as no Default or Event of Default shall have occurred and be
continuing, proceeds from any capital contribution or issuance of Designated
Preferred Stock or Qualified Capital Stock, in each case, to the extent such
proceeds are used by Holdings to repay, redeem or repurchase, in a like amount,
Designated Holdings Notes or any Designated Refinancing Notes within 90 days of
the receipt thereof), (ix) so long as no Default or Event of Default shall have
occurred and be continuing, proceeds from the issuance by the Parent of
Designated Preferred Stock to the extent the proceeds thereof are used to pay
Dividends permitted under Section 9.03(xiv) within 90 days of the receipt
thereof and (x) proceeds from the issuance of Qualified Capital Stock by the
Parent, so long as such proceeds are used in accordance with Section
9.03(iv)(c)" immediately after clause (vii) of said Section.
6. Section 4.02(f)of the Credit Agreement is hereby amended by inserting
the text "or(xviii)"immediately after the text "Section 9.04(xiv)" appearing in
said Section.
7. Section 4.03 of the Credit Agreement is hereby amended by inserting the
text "or Euro Incremental Term Loans" immediately after the text "on Euro Term
Loans appearing in said Section.
8. Section 8.01(h) is hereby amended by (a)inserting the text "or
Designated Preferred Stock " immediately after the text "holders of its
Indebtedness" appearing in said Section and (b)inserting the text "or aggregate
liquidation preference, as the case may be" immediately before the text "in
excess of $10,000,000" appearing in said Section.
9. Section 8.08 of the Credit Agreement is hereby amended by inserting the
text ", provided that such fiscal year may be changed to end on December 31
(together with corresponding changes to such fiscal quarters to end on dates
consistent with a December 31 fiscal year end) so long as (i) the Parent shall
have given the Administrative Agent at least 30 days' prior written notice
thereof and (ii) on or prior to such change in fiscal year and fiscal quarters,
the relevant Credit Parties and the Required Lenders shall have entered into
certain technical amendments and modifications to this Agreement to preserve the
intent of the parties with respect to the covenants and agreements set forth in
Sections 8.01, 9.07 and any other provisions of this Agreement reasonably deemed
appropriate by the Administrative Agent" immediately after the text "September
30" appearing in clause (ii) of said Section.
10. Section 8 of the Credit Agreement is hereby further amended by
inserting the following new Section 8.16 immediately after Section 8.15 of said
Section:
"8.16 Designated Holdings Notes; Designated Refinancing Notes and
Designated Preferred Stock. (a) Holdings shall pay interest owing on
any outstanding Designated Holdings Notes or Designated Refinancing
Notes, in each case only through the issuance of additional Designated
Holdings Notes or Designated Refinancing Notes (or, in the case of
discount notes, increased as a result of accretion) (as applicable),
rather than in cash, to the maximum extent permitted by the Designated
Holdings Note Documents or the Designated Refinancing Note Documents
(as applicable).
(b) Holdings shall pay all Dividends on Designated Preferred
Stockthrough the issuance of additional shares of Designated
Preferred Stock or an increase in the aggregate liquidation preference
of the shares of Designated Preferred Stock in respect of which
Dividends have accrued (but not in cash) to the maximum extent
permitted by the Designated Preferred Stock Documents."
11. Section 9.02(xvi) of the Credit Agreement is hereby amended by
(a) inserting the text "and/or Safety Prescription Eyewear Division" immediately
after the text "Specialty Composites Division" appearing in said Section and (b)
inserting the text", in each case, " immediately after the text"; provided that"
appearing in said Section.
12. Section 9.02 of the Credit Agreement is hereby further amended by
(a) deleting the word "and" appearing at the end of clause (xv) of said Section,
(b) deleting the period (".") appearing at the end of clause (xvi) of said
Section and inserting the text"; and" in lieu thereof and (c) inserting the
following new clause (xvii) immediately following clause (xvi) of said Section:
"(xvii) (A) transfers of assets among Credit Parties constituting
investments permitted pursuant to Section 9.05 shall be permitted and
(B) transfers of assets constituting Dividends permitted pursuant to
Section 9.03 shall be permitted."
13. Section 9.03 of the Credit Agreement is hereby amended by (a)
deleting the word "and" appearing at the end of clause (x) of said Section,
(b) deleting the period (".") appearing at the end of clause (xi) of said
Section and (c) inserting the following new clauses (xii), (xiii),(xiv), xv) and
(xvi), immediately following clause (xi) of said Section:
"(xii) the Borrower may pay up to two cash Dividends to
Holdings, and in turn, Holdings may pay cash Dividends to the
Parent in an aggregate amount not to exceed $35,000,000; provided that
(x) the Dividends paid by the Borrower to Holdings pursuant to this
Section 9.03(xii) shall be paid solely from the Borrower's available
cash on hand on or prior to September 30, 2005, (y) immediately after
giving effect to the payment of all Dividends pursuant to this Section
9.03(xii), the Borrower shall have at least $45,000,000 of available
cash on hand and/or unutilized Revolving Loan Commitments and (z) the
Parent shall promptly utilize all of the proceeds of the Dividends
paid to it pursuant to this Section 9.03(xii) to pay a portion of the
Designated Dividends;
(xiii) Holdings may pay cash Dividends to the Parent in an
aggregate amount not to exceed $100,000,000; provided that (x)
such Dividends shall be paid solely from the net cash proceeds
received by Holdings from one or more issuances of the Designated
Holdings Notes issued pursuant to Sections 9.04(xvii)(A) and (y) the
Parent shall utilize all of the proceeds of the Dividends paid to it
pursuant to this Section 9.03(xiii) to pay a portion of the Designated
Dividends;
(xiv) the Parent may pay cash Dividends in an aggregate amount
not to exceed $135,000,000 to the holders of record of its
outstanding capital stock (the "Designated Dividends"); provided that
the Designated Dividends are paid solely from the cash Dividends paid
to the Parent by Holdings pursuant to Section 9.03(xii) and Section
9.03(xiii) and/or from the proceeds of one or more issuances of
Designated Preferred Stock pursuant to Section 9.13(c)(ii);
(xv) the Borrower may pay cash Dividends to Holdings, which in
turn shall promptly utilize the full amount of such cash
Dividends for the purpose of paying cash interest, to the extent, and
when due on Designated Holdings Notes or any Designated Refinancing
Notes, in each case, then outstanding, provided that (x) the amount of
cash Dividends payable by the Borrower pursuant to this Section
9.03(xv) shall not exceed the amounts necessary to pay the cash
interest owing with respect to such outstanding Designated Holdings
Notes or any Designated Refinancing Notes, as the case may be, (y) no
such Dividend shall be paid at any time following the occurrence and
during the continuance of any Default or Event of Default or if a
Default or Event of Default would exist immediately after giving
effect to the payment of such Dividend and (z) the Borrower would be
permitted to pay any such Dividend under Section 4.03 of the Senior
Subordinated Note Indenture (as in effect on the First Amendment
Effective Date including, without limitation, with respect to all
definitions used therein or in connection therewith, in each case,
without giving effect to any (i) waiver, amendment and/or modification
thereof or (ii) the redemption, repurchase or repayment of any or all
Senior Subordinated Notes or the defeasance of any covenants therein);
and
(xvi) the Borrower may pay cash Dividends to Holdings, which in
turn, shall promptly pay such cash as Dividends to the Parent,
which in turn, shall promptly utilize the full amount of such cash
Dividends for the purpose of paying cash Dividends, to the extent, and
when due on Designated Preferred Stock, in each case, then
outstanding, provided that (x) the amount of cash Dividends payable by
the Borrower pursuant to this Section 9.03(xvi) shall not exceed the
amounts necessary to pay the cash Dividends owing with respect to such
outstanding Designated Preferred Stock, (y) no Dividends shall be paid
pursuant to this Section 9.03(xvi) at any time following the
occurrence and during the continuance of any Default or Event of
Default or if a Default or Event of Default would exist immediately
after giving effect to the payment of such Dividend and (z) the
Borrower would be permitted to pay any such Dividend under Section
4.03 of the Senior Subordinated Note Indenture (as in effect on the
First Amendment Effective Date including, without limitation, with
respect to all definitions used therein or in connection therewith, in
each case, without giving effect to any (i) waiver, amendment and/or
modification thereof or (ii) the redemption, repurchase or repayment
of any or all Senior Subordinated Notes or the defeasance of any
covenants therein)."
14. Section 9.04 of the Credit Agreement is hereby amended by (a)
deleting the word "and" appearing at the end of clause (xvi) of said
Section, (b) deleting the period (".") appearing at the end of clause
(xvii) of said Section and inserting text"; and" in lieu thereof and
(c) inserting the following new clause (xviii) immediately following
clause (xvii) of said Section:
"(xviii) (A) Indebtedness of Holdings under the Designated
Holdings Notes in an aggregate initial principal amount (or, in the
case of discount notes, the initial accreted value) not to exceed,
when added to the initial aggregate liquidation preference of all
Designated Preferred Stock (but for the avoidance of doubt, excluding
the liquidation preference of Designated Preferred Stock issued as
Dividends on Designated Preferred Stock in accordance with Section
8.16(b)) issued pursuant to Section 9.13(c)(ii), $100,000,000, as such
amount of Indebtedness may be (1) increased as a result of the
issuance of any additional Designated Holdings Notes (or, in the case
of discount notes, increased as a result of accretion) to pay in kind
any regularly accruing interest on then outstanding Designated
Holdings Notes in accordance with the terms of the Designated Holdings
Notes Documents and (2) reduced by any repayment of principal thereof;
provided that (x) 100% of the gross cash proceeds thereof shall be
applied to pay fees and expenses incurred in connection therewith and
to promptly pay the cash Dividend permitted to be paid to the Parent
pursuant to Section 9.03(xiii) and (y) in the event that that
Designated Dividends are not paid by the Parent within 90 days of the
receipt thereof, the Net Cash Proceeds of the Designated Holdings
Notes shall be applied to repay outstanding Term Loans in accordance
with Section 4.02(f) and (B) Indebtedness under the Designated
Refinancing Notes shall be permitted in accordance with the definition
thereof, provided that the aggregate principal amount Indebtedness
(or, in the case of discount notes, the initial accreted value)
thereunder does not exceed the aggregate outstanding principal amount
Indebtedness of the Designated Holdings Notes being refinanced thereby
or the aggregate liquidation preference of the Designated Preferred
Stock being redeemed or repurchased with the proceeds thereof, in each
case, plus any reasonable costs and expenses incurred in connection
therewith and any applicable premiums thereon."
15. Section 9.05 of the Credit Agreement is hereby amended by (a)
deleting the word "and" appearing at the end of clause (xx) of said
Section, (b) deleting the period (".") appearing at the end of clause
(xxi) of said Section and inserting text"; and" in lieu thereof and
(c) inserting the following new clause (xxii) immediately following
clause (xxi) of said Section:
"(xxii) the Parent and Holdings may own and acquire the capital
stock of, and make capital contributions to, the Borrower and
Subsidiary Guarantors."
16. Section 9.11(i) of the Credit Agreement is hereby amended by (a)
deleting the word "or" appearing at the end of clause (3) of said Section,
(b) inserting the text", (5) any Designated Holdings Notes, and after the
issuance thereof any Designated Refinancing Notes and (6) any Designated
Preferred Stock" immediately after clause (4) of said Section, (c)
inserting the text"(i)" immediately after the text", provided that, "
appearing in said Section and (d) inserting the text"and (ii) Holdings may
repurchase, redeem or otherwise retire outstanding Designated Holdings
Notes or Designated Preferred Stock with (x) the proceeds of Designated
Refinancing Notes and (y) the cash proceeds received from the issuance of
Designated Preferred Stock or Qualified Capital Stock of the Parent"
immediately after the text "not to exceed $5,000,000" appearing in said
Section.
17. Section 9.11(ii) of the Credit Agreement is hereby amended by
(a) inserting the text", any Designated Holdings Note Documents or any
Designated Preferred Stock Documents" immediately after the text "Senior
Subordinated Note Documents" appearing in said Section and (b) inserting
the text", any Designated Holdings Notes or any Designated Preferred Stock
(as applicable)" immediately after the text "Senior Subordinated Notes"
appearing in said Section.
18. Section 9.11(iii) of the Credit Agreement is hereby amended by
(a) inserting the text "and any Designated Holdings Notes" immediately
following the text "Senior Subordinated Notes" appearing in said Section
and (b) inserting the text", any Designated Refinancing Notes"
immediately after the text "any Shareholder Subordinated Notes" appearing
in said Section.
19. Section 9.12 is hereby amended by (a)deleting the word "and"
appearing immediately before clause (xiv) of said Section and inserting
a comma (",") in lieu thereof and (b) inserting the text", (xv) any
restrictions, after the issuance of any Designated Holdings Notes, in
the Designated Holdings Note Documents or, after the issuance of any
Designated Refinancing Notes, the Designated Refinancing Note Documents,
so long as the provisions thereof are no more restrictive
than the provisions in the Designated Holdings Note Documents and (xvi)
after the issuance of any Designated Preferred Stock, the Designated
Preferred Stock Documents.
20. Section 9.13(c) is hereby amended by (a) inserting the text "(i)"
immediately after the text "Notwithstanding the foregoing," and (b) adding
the following text immediately before the period (".") appearing at the end
of said Section:
"and (ii) the Parent may issue Designated Preferred Stock so long as
(I) no Default or Event of Default then exists or would exist immediately
after giving effect to the respective issuance thereof and (II) the initial
aggregate liquidation preference for all Designated Preferred Stock issued
pursuant to this Section 9.13(d) (but for the avoidance of doubt, excluding
the liquidation preference of Designated Preferred Stock issued as
Dividends on Designated Preferred Stock in accordance with Section 8.16(b))
shall not to exceed, when added to the aggregate initial principal amount
(or, in the case of discount notes, the initial accreted value) of all
Indebtedness incurred pursuant to Section 9.04(xviii), $100,000,000"
21. Section 9.14(b) of the Credit Agreement is hereby amended by
inserting the text ", Designated Preferred Stock" immediately after the
text "Permitted Earn-Out Debt" appearing in said Section.
22. Section 9.14(c) of the Credit Agreement is hereby amended by
inserting the text", its obligations with respect to the Designated
Holdings Note Documents, and after the issuance thereof any Designated
Refinancing Note Documents" immediately after the text "its obligations
with respect to this Agreement" appearing in said Section.
23. Section 10 of the Credit Agreement is hereby amended by (a)
inserting the word "or" immediately after the semicolon (";") appearing at
the end of Section 10.10 and (b) inserting the following new Section 10.11
immediately after Section 10.10:
"10.11 Default Under Designated Preferred Stock. (i) The Parent
or any of its Subsidiaries shall (x)default in the observance or
performance of any agreement or condition relating to any Designated
Preferred Stock or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Designated Preferred Stock (or a trustee or agent on behalf of such
holder or holders) to cause (determined without regard to whether any
notice is required or grace period has elapsed), any such Designated
Preferred Stock to become mandatorily redeemable or repurchased prior
to the stated redemption or repurchase thereof, or (ii) any such
Designated Preferred Stock shall be required to be mandatorily
redeemed, or required to be mandatorily repurchased (unless such
required redemption or repurchase results from a default thereunder or
an event of the type that constitutes an Event of Default), prior to
the stated redemption or repurchase thereof, provided that it shall
not be a Default or an Event of Default under this Section 10.11
unless the aggregate liquidation preference of all Designated
Preferred Stock as described in preceding clauses (i) and (ii) is at
least $5,000,000; or" 24. The definition of "Applicable Currency"
contained in Section 11 of the Credit Agreement is hereby amended by
inserting the text "or Euro Incremental Term Loans" immediately after
the text "Euro Term Loans" appearing in said definition.
25. The definition of "Change of Control" contained in Section 11 of
the Credit Agreement is hereby amended by deleting the text "under the
Senior Subordinated Note Indenture or, after the issuance thereof, any
document evidencing or relating to the Permitted Refinancing Subordinated
Indebtedness" appearing in clause (vi) of said definition and inserting the
text "under (i) the Senior Subordinated Note Indenture or, after the
issuance thereof, any document evidencing or relating to the Permitted
Refinancing Subordinated Indebtedness, (ii) after the issuance of the
Designated Holdings Notes, any Designated Holdings Note Document or, after
the issuance of any Designated Refinancing Notes, any Designated
Refinancing Note Document and (iii) after the issuance of any Designated
Preferred Stock, any Designated Preferred Stock Document" in lieu thereof.
26. The definition of the term "Consolidated Debt" contained in Section
11 of the Credit Agreement is hereby amended by (a) deleting the word "and"
appearing immediately before clause (ii)(y) of said definition and (b)
inserting the text "and (z) after the issuance thereof, Indebtedness under
the Designated Holdings Notes and the Designated Refinancing Notes"
immediately after the text "at such time" appearing in clause (ii)(y) of
said definition.
27. The definition of the term "Consolidated Cash Interest Expense"
contained in Section 11 of the Credit Agreement is hereby amended
by (a) the text deleting the text "Consolidated Interest Expense (net of
cash interest income)" appearing in said definition and (b) inserting the
text "the sum of (i) Consolidated Interest Expense and (ii) the amount of
all cash Dividends paid on Designated Preferred Stock (which amounts
described in this clause (ii) shall be treated as cash interest expense of
the Parent for purposes of this definition regardless of the treatment of
such amounts under GAAP), in each case, net of cash interest income" in
lieu thereof.
28. The definition of "EURIBOR" contained in Section 11 of the Credit
Agreement is hereby amended by (a) inserting the text "or Euro Incremental
Term Loan" immediately after each instance of the text "Euro Term Loan"
appearing in said definition and (b) inserting the text "or Euro
Incremental Term Loans" immediately after the text "Euro Term Loans"
appearing in said definition.
29. The definition of "Euro Rate" contained in Section 11 of the
Credit Agreement is hereby amended by inserting the text "or Euro
Incremental Term Loans" immediately after the text "Euro Term Loans"
appearing in said definition.
30. The definition of "Euro Rate Loan" contained in Section 11 of the
Credit Agreement is hereby amended by inserting the text ", Euro
Incremental Term Loan" immediately after the text "Eurodollar Loan" appearing
in said definition.
31. The definition of the term "Excess Cash Flow" contained in Section 11
of the Credit Agreement is hereby amended by deleting the text "Section
9.03(iv), (vi) and (vii)" appearing in said definition and inserting the text
"Section 9.03(iv), (vi), (vii), (viii), (xii) and (xvi)" in lieu thereof.
32. The definition of "Incremental Term Loan Borrowing Date" contained in
Section 11 of the Credit Agreement is hereby amended by deleting the text ";
provided that no such date shall occur after the applicable Incremental Term
Loan Commitment Termination Date" appearing in said definition.
33. The definition of "Required Lenders" contained in Section 11 of the
Credit Agreement is hereby amended by inserting the text "or Euro Incremental
Term Loan" immediately after each instance of the text "Euro Term Loan"
appearing in said definition.
34. The definition of "Tranche Percentage" contained in
Section 11 of the Credit Agreement is hereby amended by inserting the text
"or Euro Incremental Term Loans" immediately after each instance of the
text "Euro Term Loans" appearing in said definition.
35. Section 11 of the Credit Agreement is hereby further amended by
a) deleting the definition "Incremental Term Loan Commitment Termination Date"
in its entirety and (b)adding the following new defined terms in the correct
alphabetical order to said Section:
"Designated Dividends" shall have the meaning provided in Section
9.03(xiv).
"Designated Holdings Notes" shall mean unsecured debt securities
of Holdings issued pursuant to an effective registration statement
under the Securities Act or Rule 144A thereunder in the form of
pay-in-kind or discount notes which debt securities (i) shall provide
that the interest rate applicable thereto does not exceed market
interest rates existing at such time for transactions of a similar
nature with issuers that are similarly situated with Holdings, of
which no amount shall be paid in cash, prior to the date occurring
four years after the First Amendment Effective Date, (ii) shall not
mature prior to the date occurring eight years after the First
Amendment Effective Date, (iii) shall not require any amortization (or
similar arrangement), or any other scheduled maturity of the principal
amount thereof on any date which is earlier than the date occurring
eight years after the First Amendment Effective Date, (iv) do not
provide for any guarantees and (v) have no covenants, mandatory
prepayment provisions (other than a "change of control" put), defaults
or remedies materially less favorable taken as a whole to the Borrower
and its Subsidiaries (or to Holdings, if the provisions applicable to
the Borrower in the Senior Subordinated Note Documents were deemed
applicable to Holdings) than those than those contained in the Senior
Subordinated Note Documents (as in effect on the First Amendment
Effective Date). It being understood that the lack of subordination
provisions and provisions related thereto are not materially less
favorable taken as a whole to the Borrower and its Subsidiaries (or to
Holdings, if the provisions applicable to the Borrower in the Senior
Subordinated Note Documents were deemed applicable to Holdings).
"Designated Note Documents" shall mean the Holdings Designated Notes
Indenture, the Designated Holdings Notes and each other agreement,
document or instrument relating to the issuance of the Designated
Holdings Notes, in each case as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and
thereof.
"Holdings Designated Note Indenture"shall mean any indenture or
similar agreement entered into in connection with the issuance of
Holdings Designated Notes, as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and
thereof.
"Designated Preferred Stock" shall mean preferred capital stock
of the Parent which (i) provides by its terms that Dividends thereon
shall not be required to be paid in cash at any time (and to the
extent) that such payment would be prohibited by the terms of this
Agreement or any other agreement of the Parent or any of its
Subsidiaries relating to outstanding Indebtedness and (ii) by its
terms does not mature and does not contain any mandatory redemption,
put, repurchase, repayment, sinking fund or other similar provision
(including, without limitation, upon the occurrence of a Change of
Control Event or a sale of all or substantially all of the assets of
Holdings and its Subsidiaries) or any right on the part of the holder
thereof to require the repurchase or redemption thereof, in whole or
in part, in any such case prior to the date occurring eight years
after the First Amendment Effective Date, (iii) has a dividend rate
(after taking into account any compounding thereof) that does not
exceed market dividend rates existing at such time for transactions of
a similar nature with issuers that are similarly situated with Parent,
(iii) shall not be guaranteed by, or receive other credit support
from, any Subsidiary of the Parent, (iv) shall not be subject to any
requirement that Dividends thereon be paid in cash prior to the date
occurring four years after the First Amendment Effective Date and (v)
has no covenants, mandatory prepayment provisions (other than a
"change of control" put), defaults or remedies materially less
favorable taken as a whole to the Borrower and its Subsidiaries (or to
the Parent or Holdings, if the provisions applicable to the Borrower
in the Senior Subordinated Note Documents were deemed applicable to
Holdings or the Parent, as applicable) than those contained in the
Senior Subordinated Note Documents (as in effect on the First
Amendment Effective Date). "Designated Preferred Stock Documents"
shall mean the Designated Preferred Stock, the organizational
documents of the Parent governing the same and the other documents
executed and delivered in connection with any issuance of Designated
Preferred Stock, in each case as the same may be amended, modified
and/or supplemented from time to time in accordance with the terms
hereof and thereof.
"Designated Refinancing Notes" shall mean unsecured debt
securities of Holdings issued pursuant to an effective registration
statement under the Securities Act or Rule 144A thereunder solely to
refinance outstanding Designated Holdings Notes or to repurchase or
redeem outstanding Designated Preferred Stock which debt securities
(i) require no amortization (or similar arrangement), or any other
scheduled maturity of the principal amount thereof on any date which
is earlier than that applicable to the Designated Holdings Notes being
refinanced, (ii) have an interest rate that shall not be in excess of
the interest rate applicable to the Designated Holdings Notes being
refinanced, (iii) do not provide for any guarantees, (iv) do not
require interest on such Indebtedness to be paid in cash prior to the
date upon which interest in respect of the Designated Holdings Notes
are required to be paid in cash and (v) have no covenants, mandatory
prepayment provisions (other than a "change of control" put), defaults
or remedies materially less favorable taken as a whole to the Borrower
and its Subsidiaries (or to Holdings, if the provisions applicable to
the Borrower in the Senior Subordinated Note Documents were deemed
applicable to Holdings) than those contained in the Senior
Subordinated Note Documents (as in effect on the First Amendment
Effective Date). It being understood that the lack of subordination
provisions and provisions related thereto are not materially less
favorable taken as a whole to the Borrower and its Subsidiaries (or to
Holdings, if the provisions applicable to the Borrower in the Senior
Subordinated Note Documents were deemed applicable to Holdings).
"Designated Refinancing Note Documents" shall mean all
documentation (including, without limitation, any indenture or
purchase agreement) entered into in connection with any issuance of
Designated Refinancing Notes.
"Euro Incremental Term Loan" shall mean each Incremental Term
Loan denominated in Euros.
"First Amendment" shall mean the First Amendment to Credit
Agreement, dated as of April 28, 2005, among the Parent, Holdings, the
Borrowers, the lenders party thereto and the Administrative Agent.
"First Amendment Effective Date" shall have the meaning provided
in the First Amendment.
B. Miscellaneous Provisions
1. In order to induce the Lenders to enter into this Amendment,
each Credit Agreement Party hereby represents and warrants that(i) the
representations and warranties contained in the Credit Agreement are true and
correct in all material respects on and as of the First Amendment Effective Date
(as defined below) (except with respect to any representations and warranties
limited by their terms to a specific date, which shall be true and correct in
all material respects as of such date), and (ii) there exists no Default or
Event of Default under the Credit Agreement on the First Amendment Effective
Date, in the case of each of clauses (i) and (ii) above, before and after giving
effect to this Amendment and the transactions contemplated hereby.
2. This Amendment is limited as expressly specified and shall
not constitute an amendment, modification, acceptance or waiver of any other
provision of the Credit Agreement, any other Credit Document.
3. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
4. This Amendment shall become effective on the date (the
"First Amendment Effective Date") when (i) each Credit Agreement Party and
Consenting Lenders constituting the Required Lenders shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of telecopier) the same to the Administrative Agent
and (ii) Holdings shall have, or shall have caused to be, paid in full to the
Administrative Agent all costs, fees and expenses (including, without
limitation, all reasonable legal fees and expenses) payable to the
Administrative Agent to the extent then due and (iv) the Credit Agreement
Parties shall have, or shall have caused to be, paid to each Consenting Lender
which executes and delivers (including by way of telecopier) to the
Administrative Agent a counterpart of this Amendment on or before 5:00 P.M. (New
York time) on April 28, 2005, an amendment fee equal to 0.10% of the aggregate
principal amount of such Consenting Lender's outstanding Term Loans and/or such
Lender's Revolving Loan Commitments, in each case, as of the First Amendment
Effective Date.
5. From and after the First Amendment Effective Date, all
references to the "Agreement" in the Credit Agreement and to the "Credit
Agreement" in the other Credit Documents shall be deemed to be references to the
Credit Agreement as modified hereby.
* * *
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered as of the date first above written.
AC SAFETY HOLDING CORP.
By: /s/ Noel Marsden
Noel Marsden
Title: Treasurer
AEARO CORPORATION
By: /s/ Noel Marsden
Noel Marsden
Title: Treasurer
AEARO COMPANY I
By: /s/ Noel Marsden
Noel Marsden
Title: Treasurer
DEUTSCHE BANK AG, NEW YORK
BRANCH, Individually and as
Administrative Agent
By: /s/ Diane F. Rolphe
Diane F. Rolphe
Title: Vice President
By: /s/ Omayra Laucella
Omayra Laucella
Title: Vice President
BEAR STEARNS CORPORATE
LENDING INC., Individually
and as Syndication Agent
By: /s/ Victor Bulzacchelli
Victor Bulzacchelli
Title: Vice President
AIB DEBT MANAGEMENT LIMITED
By: /s/ Margaret Brennan
Margaret Brennan
Title: Vice President
Investment Advisor to AIB
Debt Management, Limited
By: /s/ Rima Terradista
Rima Terradista
Title: Senior Vice President
Investment Advisor to AIB Debt
Management, Limited
COPERNICUS EURO CDO-I B.V.
By: Highland Capital Management
Europe, Limited as Collateral
Manager
By: /s/ David W. Lancelot
David W. Lancelot
Title: Proxy Holder
COPERNICUS EURO CDO-II B.V.
By: Highland Capital Management
Europe,Limited as Collateral
Manager
By: /s/ David W. Lancelot
David W. Lancelot
Title: Proxy Holder
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ Sean Mounier
Sean Mounier
Title: First Vice President
By: /s/ Marcus Edward
Marcus Edward
Title: Vice President
FIFTH THIRD BANK Central Indiana)
By: /s/ David O'Neal
David O'Neal
Title: Vice President
GERMAN AMERICAN CAPITAL
CORPORATION
By: DB Services New Jersey, Inc.
By: /s/ Dierdre Whorton
Dierdre Whorton
Title: Assistant Vice President
By: /s/ Edward Schaffer
Edward Schaffer
Title: Vice President
HARBOUR TOWN FUNDING LLC
By: /s/ Meredith J. Koslick
Meredith J. Koslick
Title: Assistant Vice President
HARBOURMASTER LOAN CORPORATION B.V.
By: TMF Management B.V.
By: /s/ A.H. van Lidth De Jeude
A.H. van Lidth De Jeude
Title: Managing Director
By: /s/ D. Timmers
D. Timmers
Title: Managing Director
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Steven Gorski
Steven Gorski
Title: Director
ARCHIMEDES FUNDING IV(CAYMAN),
LTD.
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Steven Gorski
Steven Gorski
Title: Director
ING-ORYX CLO, LTD.
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Steven Gorski
Steven Gorski
Title: Director
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC,
as Investment Manager
By: /s/ Steven Gorski
Steven Gorski
Title: Director
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Steven Gorski
Steven Gorski
Title: Director
AVALON CAPITAL LTD. 3
By: INVESCO Senior Secured
Management,Inc.,as Asset Manager
By: /s/ Gregory Stoeckle
Gregory Stoeckle
Title: Authorized Signatory
CHAMPLAIN CLO, LTD.
By: INVESCO Senior Secured
Management, Inc., as Collateral
Manager
By: /s/ Gregory Stoeckle
Gregory Stoeckle
Title: Authorized Signatory
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured
Management,Inc., as
Investment Manager
By: /s/ Gregory Stoeckle
Gregory Stoeckle
Title: Authorized Signatory
DIVERSIFIED CREDIT PORTFOLIO LTD.
By: INVESCO Senior Secured
Management,Inc., as Investment
Manager
By: /s/ Gregory Stoeckle
Gregory Stoeckle
Title: Authorized Signatory
AIM FLOATING RATE FUND
By: INVESCO Senior Secured
Management,Inc., as Sub-Adviser
By: /s/ Gregory Stoeckle
Gregory Stoeckle
Title: Authorized Signatory
INVESCO EUROPEAN CDO I S.A.
By: INVESCO Senior Secured
Management,Inc., as Collateral
Manager
By: /s/ Gregory Stoeckle
Gregory Stoeckle
Title: Authorized Signatory
SEQUILS LIBERTY, LTD.
By: INVESCO Senior Secured
Management,Inc., as Collateral
Manager
By: /s/ Gregory Stoeckle
Gregory Stoeckle
Title: Authorized Signatory
PETRUSSE EUROPEAN CLO S.A.
By: INVESCO Senior Secured
Management, Inc., as Collateral
Manager
By: /s/ Gregory Stoeckle
Gregory Stoeckle
Title: Authorized Signatory
SAGAMORE CLO LTD.
By: INVESCO Senior Secured
Management, Inc., as Collateral
Manager
By: /s/ Gregory Stoeckle
Gregory Stoeckle
Title: Authorized Signatory
SARATOGA CLO I, LIMITED
By: INVESCO Senior Secured
Management,Inc., as Asset Manager
By: /s/ Gregory Stoeckle
Gregory Stoeckle
Title: Authorized Signatory
JPMORGAN CHASE BANK, NA
fka Bank One, NA
By: /s/ John C. Otteson
John C. Otteson
Title: First Vice President
KATONAH I, LTD.
By: Katonah Capital, L.L.C., as
Manager
By: /s/ Ralph Della Rocca
Ralph Della Rocca
Title: Authorized Officer
KATONAH III, LTD.
By: Katonah Capital, L.L.C., as
Manager
By: /s/ Ralph Della Rocca
Title: Authorized Officer
KATONAH IV, LTD.
By: Katonah Capital, L.L.C., as
Manager
By: /s/ Ralph Della Rocca
Ralph Della Rocca
Title: Authorized Officer
KATONAH V, LTD.
By: Katonah Capital, L.L.C., as
Manager
By: /s/ Ralph Della Rocca
Ralph Della Rocca
Title: Authorized Officer
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Matthew Doye
Matthew Doye
Title: Vice President
LONG LANE MASTER TRUST IV
By: /s/ Meredith J. Koslick
Meredith J. Koslick
Title: Authorized Agent
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ James R. Dingler
James R. Dingler
Title: Director
METLIFE BANK, NATIONAL ASSOCIATION
By: /s/ James R. Dingler
James R. Dingler
Title: Director
NATEXIS BANQUES POPULAIRES
By: /s/ Frank H. Madden, Jr.
Frank H. Madden, Jr.
Title: Vice President & Group
Manager
By: /s/ Jordan H. Levy
Jordan H. Levy
Title: Assistant Vice President
NATIONAL CITY BANK OF INDIANA
By: /s/ Christopher A. Susott
Christopher A. Susott
Title: Vice President
NEW YORK LIFE INSURANCE COMPANY
By: /s/ F. David Melka
F. David Melka
Title: Investment Vice President
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By: NEW YORK LIFE INVESTMENT
MANAGEMENT LLC, its Investment
Manager
By: /s/ F. David Melka
David Melka
Title: Director
ELF FUNDING TRUST III
By: NEW YORK LIFE INVESTMENT
MANAGEMENT LLC, as
Attorney-In-Fact
By: /s/ F. David Melka
F. David Melka
Title: Director
NYLIM FLATIRON CLO 2003-1 LTD.
By: NEW YORK LIFE INVESTMENT
MANAGEMENT LLC, As
Collateral Manager and
Attorney-In-Fact
By: /s/ F. David Melka
F. David Melka
Title: Director
NYLIM FLATIRON CLO 2004-1 LTD.
By: NEW YORK LIFE INVESTMENT
MANAGEMENT LLC, As Collateral
Manager and Attorney-In-Fact
By: /s/ F. David Melka
F. David Melka
Title: Director
MAINSTAY FLOATING RATE FUND
By: NEW YORK LIFE INVESTMENT
MANAGEMENT LLC
By: /s/ F. David Melka
F. David Melka
Title: Director
OCTAGON INVESTMENT PARTNERS II,LLC
By: Octagon Credit Investors, LLC
as sub-Investment manager
By: /s/ Andrew. D. Gordon
Andrew. D. Gordon
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS III,LTD.
By: Octagon Credit Investors, LLC as
Portfolio Manager
By: /s/ Andrew. D. Gordon
Andrew. D. Gordon
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS IV, LTD.
By: Octagon Credit Investors, LLC as
collateral manager
By: /s/ Andrew. D. Gordon
Andrew. D. Gordon
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS V, LTD.
By: Octagon Credit Investors, LLC as
Portfolio Manager
By: /s/ Andrew. D. Gordon
Andrew. D. Gordon
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS VI, LTD.
By: Octagon Credit Investors, LLC, as
Collateral Manager
By: /s/ Andrew. D. Gordon
Andrew. D. Gordon
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS VII, LTD.
By: Octagon Credit Investors, LLC as
collateral manager
By: /s/ Andrew. D. Gordon
Andrew. D. Gordon
Title: Portfolio Manager
ADDISON CDO, LIMITED
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By: /s/ Mohan V. Phansalker
Mohan V. Phansalker
Title: Managing Director
CLARENVILLE CDO, SA
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By: /s/ Mohan V. Phansalker
Mohan V. Phansalker
Title: Managing Director
LOAN FUNDING III LLC
By: Pacific Investment Management
Company LLC, as its Investment Advisor
By: /s/ Mohan V. Phansalker
Mohan V. Phansalker
Title: Managing Director
SEQUILS-MAGNUM, LTD.
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By: /s/ Mohan V. Phansalker
Mohan V. Phansalker
Title: Managing Director
WRIGLEY CDO, LTD.
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By: /s/ Mohan V. Phansalker
Mohan V. Phansalker
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Julie S. Springer
Julie S. Springer
Title: Vice President
SANKATY HIGH YIELD PARTNERS II, L.P.
By: /s/ Diane J. Exter
Diane J. Exter
Title: Managing Director Portfolio
Manager
KATONAH II, LTD.
By: Sankaty Advisors LLC as
Sub-Advisors
By: /s/ Diane J. Exter
Diane J. Exter
Title: Managing Director Portfolio
Manager
AVERY POINT CLO, LTD., as Term Lender
By: Sankaty Advisors, LLC as
Collateral Manager
By: /s/ Diane J. Exter
Diane J. Exter
Title: Managing Director Portfolio
Manager
CASTLE HILL I - INGOTS, LTD., as Term
Lender
By: Sankaty Advisors, LLC as
Collateral Manager
By: /s/ Diane J. Exter
Diane J. Exter
Title: Managing Director Portfolio
Manager
CASTLE HILL II - INGOTS, LTD., as Term
Lender
By: Sankaty Advisors, LLC as
Collateral Manager
By: /s/ Diane J. Exter
Diane J. Exter
Title: Managing Director Portfolio
Manager
CASTLE HILL III CLO, LIMITED, as Term
Lender
By: Sankaty Advisors, LLC as
Collateral Manager
By: /s/ Diane J. Exter
Diane J. Exter
Title: Managing Director Portfolio
Manager
WELLS FARGO BANK, N.A.
By: /s/ Geoff Headington
Geoff Headington
Title: Vice President