AMENDMENTNO. 4 AND WAIVER NO. 2 TO THE CREDIT AGREEMENT
Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 4 AND WAIVER NO. 2 TO THE CREDIT AGREEMENT
Dated as of October 10, 2007
AMENDMENT NO. 4 AND WAIVER NO. 2 TO THE CREDIT AGREEMENT (this “Amendment and Waiver”) among Pierre Foods, Inc., a North Carolina corporation (the “Borrower”), the Lenders (as hereinafter defined) party hereto, Wachovia Bank, National Associations (“Wachovia”), as collateral agent (the “Collateral Agent”), and Wachovia, as administrative agent (the “Administrative Agent”; together with the Collateral Agent, the “Agents”).
PRELIMINARY STATEMENTS:
(1) The Borrower, certain financial institutions and other persons from time to time parties thereto (collectively, the “Lenders”) and the Agents have entered into that certain Credit Agreement dated as of June 30, 2004, as amended by Amendment No. 1 dated as of April 3, 2006, Amendment No. 2 dated as of August 21, 2006 and Amendment No. 3 dated as of December 11, 2006 (as amended, restated, supplemented or otherwise modified, the “Credit Agreement”; capitalized terms used herein but not defined shall be used herein as defined in the Credit Agreement).
(2) The Borrower has requested that the Required Lenders agree (a) to waive the Event of Default under Section 8.01(b)(i) of the Credit Agreement that has occurred and is continuing as a result of the failure by the Borrower to comply with the financial covenants set forth in Section 7.10 of the Credit Agreement for the period from December 2, 2006 through September 1, 2007, and (b) to amend certain provisions of the Credit Agreement as set forth herein.
(3) Subject to the terms and conditions hereinafter set forth, the Required Lenders have indicated their willingness to agree to the waiver and amendments of the Credit Agreement set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby agree as follows:
SECTION 1. Waiver. Effective as of the Amendment and Waiver Effective Date (as hereinafter defined), the Required Lenders hereby waive any Event of Default under Section 8.01(b)(i) of the Credit Agreement that has occurred and is continuing as a result of the failure of the Borrower to comply with Section 7.10(a) of the Credit Agreement for the period of four fiscal quarters ended September 1, 2007.
SECTION 2. Amendments. Effective as of the Amendment and Waiver Effective Date, the Credit Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by inserting in alphabetical order a new definition to read as follows:
“Amendment and Waiver Effective Date” means October 10, 2007.
(b) Clause (a) of the definition of “Applicable Margin” set forth in Section 1.01 of the Credit Agreement is hereby amended in its entirety to read as follows:
“(a) with respect to the Term B Facility, a per annum rate equal to (i) if the Borrower has a corporate family rating and a corporate rating greater than or equal to B2 and B from, respectively, Moody’s and S&P, (A) in respect of Eurodollar Rate Loans, 3.75% and (B) in respect of Base Rate Loans, 2.75% and (ii) otherwise, (A) in respect of Eurodollar Rate Loans, 4.00% and (B) in respect of Base Rate Loans, 3.00%; and”.
(c) Clause (b) of the definition of “Applicable Margin” set forth in Section 1.01 of the Credit Agreement is hereby amended by (i) deleting the table set forth therein and replacing it with the following table:
| Applicable Margin | |||||||
| Pricing Level |
| Consolidated Leverage |
| Eurodollar Rate + |
| Base Rate + |
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| 1 |
| ≥5.0:1.0 |
| 4.00% |
| 3.00% |
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| 2 |
| ≥4.50:1.0 but <5.0:1.0 |
| 3.75% |
| 2.75% |
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| 3 |
| <4.5:1.0 |
| 3.50% |
| 2.50% |
|
and (ii) adding the following paragraph at the end of clause (b):
“Anything contained herein to the contrary notwithstanding, in the event that any Compliance Certificate delivered pursuant to Section 6.02(b) is shown to be inaccurate (regardless of whether this Agreement or any Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin with respect to any Loans for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then the Borrower shall (i) immediately deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) determine the Applicable Margin with respect to such Loans for such Applicable Period based upon the corrected Compliance Certificate, and (iii) immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly distributed to the Appropriate Lenders. This provision shall not limit the rights of the Administrative Agent and the Lenders with respect to Section 2.08(b) and Article VIII.”
(d) The definition of “Consolidated EBITDA” set forth in Section 1.01 of the Credit Agreement is hereby amended by (A) deleting the “and” before clause (ix) thereof and amending clause (ix) to read as follows:
“(ix) any purchase accounting adjustments, adjustments for synergies resulting from the acquisition of the Acquired Assets and other adjustments, in each case as specifically set forth on Schedule IV hereto;”
and (B) adding a new clause (x) thereto to read as follows:
“and (x) up to $2,000,000 for the period from the Amendment and Waiver Effective Date until the date that is twelve months following the Amendment and Waiver Effective Date for expenses associated with the integration of the Acquired Assets and other one-time expenses.”
(e) The first sentence of Section 2.05(a)(i) of the Credit Agreement is hereby
amended by (i) deleting the word “and” before clause (B) thereof, and (ii) inserting a new clause (C) at the end of such sentence to read as follows:
“; and (C) other than any optional prepayment made with Excess Cash Flow, any prepayment of Term B Loans pursuant to this Section 2.05(a) that is made on or prior to the first anniversary of the Amendment and Waiver Effective Date shall be accompanied by a premium such that the aggregate amount of such prepayment shall be equal to 101% of the principal amount prepaid”.
(f) Section 2.05(b) of the Credit Agreement is hereby amended by inserting a new clause (x) at the end thereof to read as follows:
“(x) Anything contained herein to the contrary notwithstanding, other than any prepayment of Term B Loans pursuant to clauses (i), (ii) and (v) of this Section 2.05(b), any payment or prepayment of Term B Loans that is made on or prior to the first anniversary of the Amendment and Waiver Effective Date shall be accompanied by a premium such that the aggregate amount of such prepayment shall be equal to 101% of the principal amount prepaid.”
(g) Section 7.02(c)(viii) of the Credit Agreement is hereby amended by inserting the following after “$20,000,000” in the second line thereof:
“, provided that, immediately after giving effect to the incurrence of such Indebtedness, the Consolidated Leverage Ratio, determined on a pro forma basis, shall be less than or equal to 4.50:1.00, the calculation thereof to be determined on the basis of the financial information most recently delivered to the Agents and the Lenders pursuant to Section 6.01(a) or (b) as though such Indebtedness had been incurred as of the first day of the twelve-month period ending as of the last day of the fiscal period covered thereby”.
(h) Section 7.03(i)(v) of the Credit Agreement is hereby amended by (i) deleting the word “and” before clause (B), and (ii) inserting a new clause (C) at the end of such section to read as follows:
“, and (C) immediately after giving effect to such purchase or other acquisition, the Consolidated Leverage Ratio, determined on a pro forma basis, shall be less than or equal to 4.50:1.00, the calculation thereof to be determined on the basis of the financial information most recently delivered to the Agents and the Lenders pursuant to Section 6.01(a) or (b) as though such purchase or other acquisition had been consummated as of the first day of the twelve-month period ending as of the last day of the fiscal period covered thereby, or if such Consolidated Leverage Ratio, determined on a pro forma basis, is greater than 4.50:1.00, any purchase or other acquisition is made with the proceeds of equity contributed by the Investors and their Affiliates to Holdings which is in turn contributed through the Parent to the Borrower; and”.
(i) Section 7.10(a) of the Credit Agreement is hereby amended by deleting the table therein and inserting a table in its place to read as follows:
| Period |
| Maximum Consolidated |
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| Third Fiscal Quarter 2008 |
| 6.00:1.00 |
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| Fourth Fiscal Quarter 2008 |
| 6.90:1.00 |
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| First Fiscal Quarter 2009 |
| 7.25:1.00 |
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| Second Fiscal Quarter 2009 |
| 7.25:1.00 |
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| Third Fiscal Quarter 2009 |
| 6.75:1.00 |
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| Fourth Fiscal Quarter 2009 |
| 6.50:1.00 |
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| First Fiscal Quarter 2010 |
| 6.00:1.00 |
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| Second Fiscal Quarter 2010 |
| 6.00:1.00 |
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| Third Fiscal Quarter 2010 |
| 5.50:1.00 |
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| Fourth Fiscal Quarter 2010 and each fiscal quarter thereafter |
| 5.50:1.00 |
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(j) Section 7.10(b) of the Credit Agreement is hereby amended by deleting the table therein and inserting a table in its place to read as follows:
| Period |
| Minimum Fixed |
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| Third Fiscal Quarter 2008 |
| 1.15:1.00 |
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| Fourth Fiscal Quarter 2008 |
| 1.10:1.00 |
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| First Fiscal Quarter 2009 |
| 1.00:1.00 |
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| Second Fiscal Quarter 2009 |
| 1.00:1.00 |
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| Third Fiscal Quarter 2009 |
| 1.00:1.00 |
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| Fourth Fiscal Quarter 2009 |
| 1.00:1.00 |
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| First Fiscal Quarter 2010 |
| 1.10:1.00 |
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| Second Fiscal Quarter 2010 |
| 1.10:1.00 |
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| Third Fiscal Quarter 2010 |
| 1.10:1.00 |
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| Fourth Fiscal Quarter 2010 and each fiscal quarter thereafter |
| 1.10:1.00 |
|
(k) Schedule IV of the Credit Agreement is hereby deleted in its entirety and replaced with the new Schedule IV attached hereto as Annex A.
SECTION 3. Conditions to Effectiveness. Section 1 and 2 of this Amendment and Waiver shall become effective as of the date hereof (the “Amendment and Waiver Effective Date”) when each of the conditions set forth in this Section 3 shall have been fulfilled to the satisfaction of the Administrative Agent.
(a) The Administrative Agent shall have received counterparts of this Amendment and Waiver, duly executed and delivered on behalf of each of (i) the Loan Parties and (ii) the Required Lenders and the Administrative Agent, or as to any of the foregoing parties, advice reasonably satisfactory to the Administrative Agent that each of the foregoing parties has executed a counterpart of this Amendment and Waiver.
(b) The Borrower shall have paid all reasonable expenses (including the reasonable fees and expenses of Shearman & Sterling LLP) incurred in connection with the preparation, negotiation and execution of this Amendment and Waiver and other matters relating to the Credit Agreement to the extent invoiced on or prior to the Amendment and Waiver Effective Date.
(c) The Borrower shall have paid to the Administrative Agent, for the ratable account of each of the Lenders that has executed and delivered a counterpart of this Amendment and Waiver to the Administrative Agent prior to 5:00 PM (New York City time) on October 4,
2007, an amendment fee of 0.25% on the aggregate amount of the Commitments and Loans of such Lender.
(d) The Administrative Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of each of the Loan Parties certifying (A) the names and true signatures of the officers of each of the Loan Parties authorized to sign this Amendment and Waiver and the other documents to be delivered hereunder and (B) the resolutions of the Board of Directors of the Loan Parties evidencing approval for this Amendment and Waiver and (ii) a certificate of an officer of each of the Loan Parties certifying (A) that no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body, or any third party to any agreements and instruments is required for the due execution, delivery or performance by each of the Loan Parties of this Amendment and Waiver, (B) the representations and warranties contained in Section 4 of this Amendment and Waiver are true and correct in all material respects (without duplication of any materiality qualifier contained in any such representations and warranties) on and as of such date, after giving effect to this Amendment and Waiver, as though made on and as of such date, other than any such representations or warranties that by their terms refer to a specific date and (C) no Default or Event of Default (other than the Event of Default that is being waived pursuant to this Amendment and Waiver) has occurred and is continuing.
(e) The Administrative Agent shall have received a favorable opinion of Thompson Hine LLP, counsel to the Loan Parties, on such matters concerning the Loan Parties and this Amendment and Waiver as the Administrative Agent may reasonably request.
(f) All documents executed or submitted pursuant hereto shall be reasonably satisfactory in form and substance to the Administrative Agent and Shearman & Sterling LLP as counsel to the Administrative Agent. The Administrative Agent and its counsel shall have received all information and such counterpart originals or such certified or other copies of such materials as the Administrative Agent or its counsel may reasonably request, and all legal matters incident to the transactions contemplated by this Amendment and Waiver shall be reasonably satisfactory to the Administrative Agent and its counsel.
(g) No Default or Event of Default (other than the Event of Default that is being waived pursuant to this Amendment and Waiver) shall have occurred and be continuing, or would occur as a result of the transactions contemplated by this Amendment and Waiver.
SECTION 4. Confirmation of Representations and Warranties. Each of the Loan Parties hereby represents and warrants, on and as of the date hereof and as of the Amendment No. 4 Effective Date, that the representations and warranties contained in the Credit Agreement and the other Loan Documents are correct and true in all material respects (without duplication of any materiality qualifier contained in any such representations and warranties) on and as of such date, after giving effect to this Amendment and Waiver, as though made on and as of such date, other than any such representations or warranties that by their terms refer to a specific date.
SECTION 5. Affirmation of Subsidiary Guarantors. Each Guarantor hereby consents to the amendments and waiver to the Credit Agreement effected hereby, and hereby confirms and agrees that, notwithstanding the effectiveness of this Amendment and Waiver, the obligations of such Guarantor contained in the Parent Guaranty, in respect of each of Holdings and the Parent, and the Subsidiary Guaranty, in respect of each Subsidiary Guarantor, or in any other Loan Documents to which such Guarantor is a party are, and shall remain, in full force and effect and are hereby ratified and confirmed in all respects, except that, on and after the effectiveness of this Amendment and Waiver, each reference in
the Parent Guaranty and in the Subsidiary Guaranty, as the case may be, and in each of the other Loan Documents to “the Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Credit Agreement, as modified by this Amendment and Waiver. Without limiting the generality of the foregoing, the Collateral Documents to which such Guarantor is a party and all of the Collateral described therein do, and shall continue to, secure payment of all of the Secured Obligations (in each case, as defined therein).
SECTION 6. Reference to and Effect on the Loan Documents. (a) On and after the effectiveness of this Amendment and Waiver, each reference in the Credit Agreement to “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other transaction documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified by this Amendment.
(b) The Credit Agreement, as specifically amended by this Amendment and Waiver, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case as amended by this Amendment and Waiver.
(c) The execution, delivery and effectiveness of this Amendment and Waiver shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or any Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 7. Execution in Counterparts. This Amendment and Waiver may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment and Waiver by facsimile shall be effective as delivery of a manually executed original counterpart of this Amendment and Waiver.
SECTION 8. Governing Law. This Amendment and Waiver shall be governed by, and construed in accordance with, the laws of the State of New York, and shall be subject to the jurisdictional and service provisions of the Credit Agreement, as if this were a part of the Credit Agreement.
SECTION 9. Entire Agreement; Modification. This Amendment and Waiver constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, there being no other agreements or understandings, oral, written or otherwise, respecting such subject matter, any such agreement or understanding being superseded hereby, shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, and may not be amended, extended or otherwise modified, except in a writing executed in whole or in counterparts by each party hereto.
[SIGNATURES FOLLOW.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver to be executed by their respective officers thereunto duly authorized, as of the date first above written.
| PIERRE FOODS, INC. | |||
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| By | /s/ Joseph W. Meyers | |
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| Joseph W. Meyers | |
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| Chief Financial Officer | |
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| PIERRE HOLDING CORP. | ||
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| By | /s/ Joseph W. Meyers | |
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| Joseph W. Meyers | |
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| Vice President, Finance | |
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| PIERRE REAL PROPERTY, LLC | ||
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| By PIERRE FOODS, INC. | |
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| By | /s/ Joseph W. Meyers |
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| Joseph W. Meyers, |
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| Chief Financial Officer |
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| PF MANAGEMENT, INC. | ||
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| By | /s/ Joseph W. Meyers | |
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| Joseph W. Meyers | |
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| Vice President, Finance | |
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| FRESH FOODS PROPERTIES, LLC | ||
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| By PIERRE FOODS, INC. | |
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| By | /s/ Joseph W. Meyers |
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| Joseph W. Meyers, |
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| Chief Financial Officer |
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| CLOVERVALE FARMS, INC. | ||
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| By | /s/ Joseph W. Meyers | |
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| Joseph W. Meyers | |
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| Vice President, Finance | |
| CLOVERVALE TRANSPORTATION, INC. | |||
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| By | /s/ Joseph W. Meyers | |
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| Joseph W. Meyers | |
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| Vice President, Finance | |
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| CHEFS PANTRY, INC. | ||
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| By | /s/ Joseph W. Meyers | |
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| Joseph W. Meyers | |
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| Vice President, Finance | |
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| ZARTIC, LLC | ||
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| By | /s/ Joseph W. Meyers | |
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| Joseph W. Meyers | |
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| Vice President, Finance | |
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| ZARTIC REAL PROPERTY, LLC | ||
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| By PIERRE FOODS, INC. | |
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| By | /s/ Joseph W. Meyers |
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| Joseph W. Meyers, |
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| Chief Financial Officer |
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| ZAR TRAN, LLC | ||
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| By | /s/ Joseph W. Meyers | |
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| Joseph W. Meyers | |
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| Vice President, Finance | |
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| ZAR TRAN REAL PROPERTY, LLC | ||
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| By PIERRE FOODS, INC. | |
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| By | /s/ Joseph W. Meyers |
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| Joseph W. Meyers, |
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| Chief Financial Officer |
| WARFIGHTER FOODS, LLC | |||
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| By PIERRE FOODS, INC. | |
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| By | /s/ Joseph W. Meyers |
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| Joseph W. Meyers, |
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| Chief Financial Officer |
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| WACHOVIA BANK, NATIONAL ASSOCIATION, as | ||
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| Administrative Agent and Collateral Agent |
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| By | /s/ Kira L. Deter |
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| Name: Kira L. Deter |
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| Title: Vice President |
| Lenders: | ||
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| Antares Capital Corporation | |
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| By | /s/ Jeffrey A. Skinner |
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| Name: Jeffrey A. Skinner |
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| Title: Duly Authorized Signatory |
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| ANTARES FUNDING, L.P. | |
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| By: | The Bank of New York Trust Company, N.A., as Trustee of the Antares Funding Trust created under the Trust Agreement dated as of November 30, 1999, as a Lender |
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| By: | /s/ Leslie Hindley |
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| Name: Leslie Hindley |
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| Title: AVP |
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| Term Loan B2 | |
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| ARES IIIR/IVR CLO LTD. | |
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| By: | ARES CLO MANAGEMENT HIR/IVR, L.P. |
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| By: | ARES CLO GP IIIR/IVR, LLC, ITS GENERAL PARTNER |
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| By: | ARES MANAGEMENT LLC, ITS MANAGER |
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| By: | /s/ Joshua M. Bloomstein |
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| Name: Joshua M. Bloomstein |
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| Title: Authorized Signatory |
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| CONFLUENT 2 LIMITED | ||
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| By: | Ares Private Account Management I, L.P., as Sub-Manager |
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| By: | Ares Private Account Management I GP, LLC, as General Partner |
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| By: | Ares Management LLC, as Manager |
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| By: | /s/ Joshua M. Bloomstein |
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| Name: Joshua M. Bloomstein |
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| Title: Authorized Signatory |
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| Term Loan B | |
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| MFL ARES ENHANCED LOAN INVESTMENT STRATEGY IR | |
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| LTD., as Trustee of the Ares Enhanced Loan Investment Strategy IR Trust |
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| By: | ARES ENHANCED LOAN MANAGEMENT IR, L.P., as Portfolio Manager |
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| By: | Ares Enhanced Loan IR GP, LLC, as its General Partner |
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| By: | Ares Management LLC, as its Manager |
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| By: | /s/ Joshua M. Bloomstein |
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| Name: Joshua M. Bloomstein |
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| Title: Authorized Signatory |
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| Ares VR CLO Ltd. | |
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| By: | Ares CLO Management VR, L.P., Investment Manager |
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| By: | Ares CLO GP VR, LLC, its General Partner |
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| By: | Ares Management LLC, its Manager |
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| By: | /s/ Joshua M. Bloomstein |
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| Name: Joshua M. Bloomstein |
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| Title: Authorized Signatory |
| ARES XI CLO Ltd. | ||
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| By: | ARES CLO MANAGEMENT XI, L.P. |
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| By: | ARES CLO GP XI, LLC, ITS GENERAL PARTNER |
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| By: | ARES MANAGEMENT LLC, ITS MANAGER |
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| By: | /s/ Joshua M. Bloomstein |
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| Name: Joshua M. Bloomstein |
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| Title: Authorized Signatory |
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| Ares VII CLO Ltd. | |
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| By: | Ares CLO Management VIII, L.P., Investment Manager |
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| By: | Ares CLO GP VIII, LLC, Its General Partner |
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| By: | Ares Management LLC, its Manager |
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| By: | /s/ Joshua M. Bloomstein |
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| Name: Joshua M. Bloomstein |
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| Title: Authorized Signatory |
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| Lenders: | |
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| Atlas Loan Funding (Hartford), LLC | |
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| BY: | Atlas Capital Funding, Ltd. |
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| BY: | Structured Asset Investors, LLC |
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| By: | /s/ Diana M. Himes |
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| Name: Diana M. Himes |
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| Title: Vice President |
| Aurum CLO 2002-1 Ltd. | ||
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| By: | Deutsche Investment Management Americas, Inc. (as successor in interest to Deutsche Asset Management, Inc.), As Collateral Manager |
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| By: | /s/ Eric S. Meyer |
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| Name: Eric S. Meyer |
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| Title: Director |
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| By: | /s/ Phuong T. Le |
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| Name: Phuong T. Le |
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| Title: Vice President |
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| Ballantyne Funding LLC | |
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| as a Lender | |
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| By: | /s/ Tara E. Kenny |
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| Name: Tara E. Kenny |
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| Title: Assistant Vice President |
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| Bank of America N.A. | |
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| By: | /s/ Jennifer Dekeukelaere |
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| Name: Jennifer Dekeukelaere |
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| Title: Vice President |
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| Ballyrock CLO II Limited | |
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| BALLYROCK Investment Advisors LLC, | |
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| as Collateral Manager | |
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| as a Lender | |
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| By: | /s/ Lisa B. Rymut |
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| Name: Lisa B. Rymut |
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| Title: Assistant Treasurer |
| Fidelity Advisor Series II: Fidelity | ||
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| Advisor High Income Fund | |
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| as a Lender | |
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| |
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| By: | /s/ Gary Ryan |
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| Name: Gary Ryan |
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| Title: Assistant Treasurer |
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| Fidelity Central Investment Portfolios | |
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| |
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| By: | /s/ Gary Ryan |
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| Name: Gary Ryan |
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| Title: Assistant Treasurer |
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| Fidelity Fixed Income Trust Fidelity | |
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| By: | /s/ Gary Ryan |
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| Name: Gary Ryan |
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| Title: Assistant Treasurer |
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| Fidelity Central Investment Portfolios | |
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| By: | /s/ Gary Ryan |
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| Name: Gary Ryan |
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| Title: Assistant Treasurer |
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| Fidelity Central Investment Portfolios | |
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| By: | /s/ Gary Ryan |
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|
| Name: Gary Ryan |
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| Title: Assistant Treasurer |
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| Variable Insurance Products Fund: High | ||
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| By: | /s/ Gary Ryan |
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| Name: Gary Ryan |
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| Title: Assistant Treasurer |
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| Pyramis High Yield Bond Commingled | |
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| By: | /s/ Geoff W. Johnson |
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| Name: Geoff W. Johnson |
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| Title: Vice President |
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| General Motors Trust Bank, National | |
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| By: | /s/ Geoff W. Johnson |
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| Name: Geoff W. Johnson |
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| Title: Vice President |
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| General Motors Investment Management | |
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| By: | /s/ Geoff W. Johnson |
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| Name: Geoff W. Johnson |
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| Title: Vice President |
| Callidus Debt Partners CLO Fund II, Ltd. | ||
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| By: Its Collateral Manager, |
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| Callidus Capital Management, LLC |
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| By: | /s/ Peter R. Bennitt |
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| Name: Peter R. Bennitt |
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| Title: Principal |
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| Beecher CBNA Loan Funding LLC | |
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| |
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| By: | /s/ Beata Konopko |
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| Name: Beata Konopko |
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| Title: Attorney-In-Fact |
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| Bushnell CBNA Loan Funding LLC, for itself or as agent for Bushnell CFPI Loan Funding LLC | |
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| By: | /s/ Beata Konopko |
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| Name: Beata Konopko |
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| Title: Attorney-In-Fact |
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| Callidus Debt Partners CLO Fund III Ltd. | |
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| By: Its Collateral Manager, |
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| By: | /s/ Peter R. Bennitt |
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| Name: Peter R. Bennitt |
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| Title: Principal |
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| Callidus Debt Partners CLO Fund IV Ltd. | |
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| By: Its Collateral Manager, |
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| By: | /s/ Peter R. Bennitt |
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| Name: Peter R. Bennitt |
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| Title: Principal |
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| Callidus Debt Partners CLO Fund V, Ltd. | ||
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| By: Its Collateral Manager, |
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| By: | /s/ Peter R. Bennitt |
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| Name: Peter R. Bennitt |
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| Title: Principal |
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| Callidus Debt Partners CLO Fund VI, Ltd. | |
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| By: Its Collateral Manager, |
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| By: | /s/ Peter R. Bennitt |
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| Name: Peter R. Bennitt |
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| Title: Principal |
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| CIT Lending Services | |
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| By: | /s/ Kenneth R. Geiger |
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| Name: Kenneth R. Geiger |
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| Title: Vice President |
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| Confluent 3 Limited | |
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| By: Morgan Stanley Investment Management Inc. | |
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| By: | /s/ John Hayes |
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|
| Name: John Hayes |
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| Title: Executive Director |
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| COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH | |
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| |
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| By: | /s/ Peter Glawe |
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|
| Name: Peter Glawe |
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|
| Title: Vice President |
| By: | /s/ Andrew Sherman | |
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|
| Name: Andrew Sherman |
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|
| Title: Executive Director |
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| CUNA Mutual Life Insurance Company | |
|
|
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|
|
| By: | /s/ Eric S. Meyer |
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|
| Name: Eric S. Meyer |
|
|
| Title: Director |
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|
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|
|
| By: | /s/ Phuong T. Le |
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|
| Name: Phuong T. Le |
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|
| Title: Vice President |
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| Denali Capital LLC, managing member of | |
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| By: | /s/ David P. Dekker |
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| Name: David P. Dekker |
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|
| Title: Chief Financial Officer |
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| Denali Capital LLC, managing member of | |
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| By: | /s/ David P. Dekker |
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| Name: David P. Dekker |
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|
| Title: Chief Financial Officer |
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| Denali Capital LLC, managing member of | |
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| By: | /s/ David P. Dekker |
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|
| Name: David P. Dekker |
|
|
| Title: Chief Financial Officer |
| Denali Capital LLC, managing member of | ||
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|
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|
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| By: | /s/ David P. Dekker |
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| Name: David P. Dekker |
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|
| Title: Chief Financial Officer |
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|
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| EAGLE LOAN TRUST | |
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|
| By: | /s/ David Frey |
|
|
| Name: David Frey |
|
|
| Title: Managing Director |
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|
|
| Flagship CLO III | |
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|
|
|
|
| By: | /s/ Eric S. Meyer |
|
|
| Name: Eric S. Meyer |
|
|
| Title: Director |
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|
|
| By: | /s/ Phuong T. Le |
|
|
| Name: Phuong T. Le |
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|
| Title: Vice President |
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| Flagship CLO IV | |
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| |
|
| By: | /s/ Eric S. Meyer |
|
|
| Name: Eric S. Meyer |
|
|
| Title: Director |
|
|
|
|
|
| By: | /s/ Phuong T. Le |
|
|
| Name: Phuong T. Le |
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|
| Title: Vice President |
| Flagship CLO V | ||
|
|
|
|
|
| By: | /s/ Eric S. Meyer |
|
|
| Name: Eric S. Meyer |
|
|
| Title: Director |
|
|
|
|
|
| By: | /s/ Phuong T. Le |
|
|
| Name: Phuong T. Le |
|
|
| Title: Vice President |
|
|
|
|
|
| Flagship CLO VI | |
|
|
|
|
|
| By: | /s/ Eric S. Meyer |
|
|
| Name: Eric S. Meyer |
|
|
| Title: Director |
|
|
|
|
|
| By: | /s/ Phuong T. Le |
|
|
| Name: Phuong T. Le |
|
|
| Title: Vice President |
|
|
|
|
|
| THE FOOTHILL GROUP, INC. | |
|
|
|
|
|
| By: | /s/ Dennis R. Ascher |
|
|
| Name: Dennis R. Ascher |
|
|
| Title: SR VP |
|
|
|
|
|
| FOOTHILL CLO I Ltd. | |
|
|
|
|
|
| By: | The Foothill Group, Inc., as attorney-in-fact |
|
|
|
|
|
| By: | /s/ Dennis R. Ascher |
|
|
| Name: Dennis R. Ascher |
|
|
| Title: SR VP |
| Grand Central Asset Trust, ALAD Series | ||
|
|
|
|
|
| By: | /s/ Janet Haack |
|
|
| Name: Janet Haack |
|
|
| Title: As Attorney In Fact |
|
|
|
|
|
| General Electric Capital Corporation | |
|
|
|
|
|
| By: | /s/ Jeffrey A. Skinner |
|
|
| Name: Jeffrey A. Skinner |
|
|
| Title: Duly Authorized Signatory |
|
|
|
|
|
| General Electric Capital Corporation, as Administrator | |
|
|
|
|
|
| By: | /s/ Dwayne L. Coker |
|
|
| Name: Dwayne L. Coker |
|
|
| Title: Duly Authorized Signatory |
|
|
|
|
|
| General Electric Capital Corporation, as Administrator | |
|
|
|
|
|
| By: | /s/ Dwayne L. Coker |
|
|
| Name: Dwayne L. Coker |
|
|
| Title: Duly Authorized Signatory |
|
|
|
|
|
| Grand Central Asset Trust, ALAD Series | |
|
|
|
|
|
| By: | /s/ Janet Haack |
|
|
| Name: Janet Haack |
|
|
| Title: As Attorney In Fact |
|
|
|
|
|
| Harch CLO II Limited | |
|
|
|
|
|
| By: | /s/ Michael E. Lewitt |
|
|
| Name: Michael E. Lewitt |
|
|
| Title: Authorized Signatory |
| Harch CLO III Limited | ||
|
|
|
|
|
| By: | /s/ Michael E. Lewitt |
|
|
| Name: Michael E. Lewitt |
|
|
| Title: Authorized Signatory |
|
|
|
|
|
| Hartford Institutional Trust, on behalf of its Floating Rate Bank Loan Series | |
|
|
|
|
|
|
| By: Hartford Investment Management Company, its Investment Manger |
|
|
|
|
|
| By: | /s/ Francisco Bisseu |
|
|
| Name: Francisco Bisseu |
|
|
| Title: VP |
|
|
|
|
|
| The Hartford Mutual Funds, Inc., on behalf of the Hartford Floating Rate Fund by Hartford Investment Management Company, its sub-advisor, as a lender | |
|
|
|
|
|
| By: | /s/ Francisco Bisseu |
|
|
| Name: Francisco Bisseu |
|
|
| Title: VP |
|
|
|
|
|
| Landmark II CDO Limited | |
|
|
|
|
|
| By: | /s/ Thomas E. Bancroft |
|
|
| Name: Thomas E. Bancroft |
|
|
| Title: Designated Signatory |
|
|
|
|
|
| Landmark X CDO Limited | |
|
|
|
|
|
| By: | /s/ Thomas E. Bancroft |
|
|
| Name: Thomas E. Bancroft |
|
|
| Title: Designated Signatory |
| LaSalle Bank National Association | ||
|
|
|
|
|
| By: | /s/ Anthony M. Buehler |
|
|
| Name: Anthony M. Buehler |
|
|
| Title: First Vice President |
|
|
|
|
|
| MAPS CLO Fund II, Ltd. | |
|
|
|
|
|
| By: | /s/ Peter R. Bennitt |
|
|
| Name: Peter R. Bennitt |
|
|
| Title: Principal |
|
|
|
|
|
| MORGAN STANLEY PRIME INCOME TRUST | |
|
|
|
|
|
| By: | /s/ John Hayes |
|
|
| Name: John Hayes |
|
|
| Title: Executive Director |
|
|
|
|
|
| NAVIGATOR CDO 2004, LTD, as a Lender | |
|
|
|
|
|
| By: | Antares Asset Management Inc., as Collateral Manager |
|
|
|
|
|
| By: | /s/ John Campos |
|
|
| Name: John Campos |
|
|
| Title: Authorized Signatory |
|
|
|
|
|
| NAVIGATOR CDO 2006, LTD, as a Lender | |
|
|
|
|
|
| By: | GE Asset Management Inc., as Collateral Manager |
|
|
|
|
|
| By: | /s/ John Campos |
|
|
| Name: John Campos |
|
|
| Title: Authorized Signatory |
| PANGAEA CLO 2007-1 LTD | ||
|
|
|
|
|
| By: | /s/ Michael P. King |
|
|
| Name: Michael P. King |
|
|
| Title: Senior Managing Director |
|
|
|
|
|
| Prospero CLO I B.V. | |
|
|
|
|
|
| By: | /s/ Eric Hurshman |
|
|
| Name: Eric Hurshman |
|
|
| Title: Attorney-In-Fact |
|
|
|
|
|
| Prospero CLO II B.V. | |
|
|
|
|
|
| By: | /s/ Eric Hurshman |
|
|
| Name: Eric Hurshman |
|
|
| Title: Attorney-In-Fact |
|
|
|
|
|
| QUALCOMM Global Trading, Inc. | |
|
|
|
|
|
| By: | /s/ John Hayes |
|
|
| Name: John Hayes |
|
|
| Title: Executive Director |
|
|
|
|
|
| Schooner CDO, LTD | |
|
| By: Deutsche Investment Management Americas, Inc. | |
|
|
| As Interim Collateral Manager |
|
|
|
|
|
| By: | /s/ Eric S. Meyer |
|
|
| Name: Eric S. Meyer |
|
|
| Title: Director |
|
|
|
|
|
| By: | /s/ Phuong T. Le |
|
|
| Name: Phuong T. Le |
|
|
| Title: Vice President |
|
|
|
|
|
| Stanfield Amage CLO Ltd. | |
| By: Stanfield Capital Partners, LLC | ||
|
|
|
|
|
| By: | /s/ David Frey |
|
|
| Name: David Frey |
|
|
| Title: Managing Director |
|
|
|
|
|
| Stanfield AZURE CLO, Ltd. | |
|
|
|
|
|
| By: | /s/ David Frey |
|
|
| Name: David Frey |
|
|
| Title: Managing Director |
|
|
|
|
|
| Stanfield Bristol CLO, Ltd. | |
|
|
|
|
|
| By: | /s/ David Frey |
|
|
| Name: David Frey |
|
|
| Title: Managing Director |
|
|
|
|
|
| Stanfield Carrera CLO, Ltld. | |
|
|
|
|
|
| By: | /s/ David Frey |
|
|
| Name: David Frey |
|
|
| Title: Managing Director |
|
|
|
|
|
| Stanfield Daytona CLO, Ltd | |
|
|
|
|
|
| By: | /s/ David Frey |
|
|
| Name: David Frey |
|
|
| Title: Managing Director |
| Stanfield McLaren CLO, Ltd. | ||
|
|
|
|
|
| By: | /s/ David Frey |
|
|
| Name: David Frey |
|
|
| Title: Managing Director |
|
|
|
|
|
| Stanfield Modena CLO, Ltd. | |
|
|
|
|
|
| By: | /s/ David Frey |
|
|
| Name: David Frey |
|
|
| Title: Managing Director |
|
|
|
|
|
| Stanfield Vantage CLO, Ltd. | |
|
|
|
|
|
| By: | /s/ David Frey |
|
|
| Name: David Frey |
|
|
| Title: Managing Director |
|
|
|
|
|
| The Sumitomo Trust and Banking Co, Ltd. | |
|
|
|
|
|
| By: | /s/ Elizabeth A. Quirk |
|
|
| Name: Elizabeth A. Quirk |
|
|
| Title: Vice President |
|
|
|
|
|
| WB Loan Funding 1, LLC | |
|
|
|
|
|
| By: | /s/ Diana M. Himes |
|
|
| Name: Diana M. Himes |
|
|
| Title: Vice President |
| Venture III CDO Limited | ||
|
|
|
|
|
| By: | /s/ John J. Wagner |
|
|
| Name: John J. Wagner |
|
|
| Title: Managing Director |
|
|
|
|
|
| Venture IV CDO Limited | |
|
|
|
|
|
| By: | /s/ John J. Wagner |
|
|
| Name: John J. Wagner |
|
|
| Title: Managing Director |
|
|
|
|
|
| Venture V CDO Limited | |
|
|
|
|
|
| By: | /s/ John J. Wagner |
|
|
| Name: John J. Wagner |
|
|
| Title: Managing Director |
|
|
|
|
|
| Venture VII CDO Limited | |
|
|
|
|
|
| By: | /s/ John J. Wagner |
|
|
| Name: John J. Wagner |
|
|
| Title: Managing Director |
|
|
|
|
|
| Venture IX CDO Limited | |
|
|
|
|
|
| By: | /s/ John J. Wagner |
|
|
| Name: John J. Wagner |
|
|
| Title: Managing Director |
| VAN KAMPEN | ||
|
|
|
|
|
| By: | /s/ Christina Jamieson |
|
|
| Name: Christina Jamieson |
|
|
| Title: Managing Director |
|
|
|
|
|
| VAN KAMPEN | |
|
|
|
|
|
| By: | /s/ Christina Jamieson |
|
|
| Name: Christina Jamieson |
|
|
| Title: Managing Director |
ANNEX A
SCHEDULE IV TO THE CREDIT AGREEMENT
CONSOLIDATED EBITDA ADJUSTMENTS
($ in Millions)
|
|
| Fiscal 2007 |
| Fiscal 2008 |
| ||||||||
|
|
| Q3 |
| Q4 |
| Q1 |
| Q2 |
| Q3 |
| Q4 |
|
| Zartic Acquisition Adjustments |
| $2.6 |
| $1.6 |
| $0.8 |
| $0.2 |
| $0.1 |
| $0.0 |
|
| Transaction Adjustments |
| 0.0 |
| 12.5 |
| 0.0 |
| 0.0 |
| 0.0 |
| 0.0 |
|
| Nonrecurring Expenses |
| 0.0 |
| 0.0 |
| 1.6 |
| 1.9 |
| 0.5 |
| 0.1 |
|
| Run Rate Adjustments |
| 0.0 |
| 0.0 |
| 2.4 |
| 2.4 |
| 0.0 |
| 0.0 |
|
| Other Pro Forma Adjustments |
| 0.0 |
| 0.0 |
| (0.4 | ) | (0.2 | ) | 0.0 |
| 0.0 |
|
| Total Adjustments |
| $2.6 |
| $14.2 |
| $4.4 |
| $4.3 |
| $0.7 |
| $0.1 |
|
