1
EXHIBIT 10-B
FOURTH AMENDMENT TO CREDIT AGREEMENT AND
THIRD AMENDMENT TO SECURITY AGREEMENT
THIS AMENDMENT is entered into as of December 12, 1996, between
FOXMEYER HEALTH CORPORATION, a Delaware corporation ("BORROWER"), and CREDIT
LYONNAIS NEW YORK BRANCH, a duly licensed branch under the New York Banking Law
of a foreign banking corporation organized under the Laws of the Republic of
France ("LENDER").
Borrower and Lender are party to the Credit Agreement (as renewed,
extended, and amended, the "CREDIT AGREEMENT") dated as of September 6, 1995,
providing for $20,000,000 term loan and party to the Security Agreement (as
renewed, extended, and amended, the "SECURITY AGREEMENT") dated as of September
6, 1995. Borrower and Lender have agreed, upon the following terms and
conditions, to amend the Credit Agreement and Security Agreement to, among
other things, remove certain financial covenants, include additional
Collateral, establish an interest expense escrow account, and to effect various
other changes described below. Accordingly, for valuable and acknowledged
consideration, Borrower and Lender agree as follows:
1. TERMS AND REFERENCES. Unless otherwise stated in this
amendment (a) terms defined in the Credit Agreement have the same meanings when
used in this amendment and (b) references to "SECTIONS," "SCHEDULES," and
"EXHIBITS" are to the Credit Agreement's sections, schedules, and exhibits.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is
amended as follows effective as of the date of this amendment:
(a) SECTION 1.1 is amended to entirely amend or to add
the following definitions:
ADDITIONAL OBLIGATION means all present and future
(a) indebtedness, obligations, and liabilities of Borrower to
Lender arising directly or indirectly (by way of
reinstatement, participation, or otherwise) under or
evidenced by any past, present, or future agreement,
document, or instrument other than the Loan Documents, (b)
interest accruing on, and attorneys' fees incurred in the
enforcement or collection of, any of the foregoing, (c) costs
incurred by Lender to obtain, preserve, perfect and enforce
the Liens contemplated to secure payment of any of the
foregoing and to maintain, preserve, and collect the property
in which Lender has been granted a Lien to secure such
payment, and (d) renewals, extensions (but Lender has no
obligation whatsoever to extend any of the foregoing),
modifications, and refinancings of any of the foregoing.
▇▇▇▇▇▇ STOCK means the greater of EITHER (i) the
shares of common stock of ▇▇▇▇▇▇, Inc., that Borrower, M&A,
or both are entitled to receive on account of ownership of
the DNL Interest OR (ii) the shares of common stock of
▇▇▇▇▇▇, Inc., that Borrower, M&A, or both actually receive on
account of ownership of the DNL Interest.
COLLATERAL BASE means, at any time, the Collateral
Value of the ▇▇▇▇▇▇ Stock and Publicly-Traded Stock and the
actual amount of cash collateral held in escrow in
FOURTH AMENDMENT
2
each case that is (a) subject to Lender Liens, (b) subject to
no other Liens except Permitted Liens, and (c) subject to no
restrictions on transfer except under general corporate and
securities Laws and (i) solely in respect of Phar-Mor stock,
the LLC Agreement and Proxy, and (ii) solely in respect of
the ▇▇▇▇▇▇ Stock, the Supplementary Agreement dated August
18, 1995, as amended by the Amendment to Supplementary
Agreement dated October 3, 1996, between M&A and DNL Group,
L.L.C.
COLLATERAL-BASE DEFICIENCY means -- at any time and
if positive -- the amount by which (a) 200% times (i) the
unpaid principal balance of the Loan less (ii) the aggregate
amount held in the Interest Expense Escrow Accounts (after
subtracting the amount necessary for the Interest Payment for
the immediately subsequent one-month period) exceeds the
total Collateral Base, or (b) 87.5% times (i) the unpaid
principal balance of the Loan less (ii) the aggregate amount
held in the Interest Expense Escrow Accounts (after
subtracting the amount necessary for the Interest Payment for
the immediately subsequent one-month period) exceeds the
Collateral Base applicable to Publicly-Traded Stock.
COLLATERAL VALUE means:
(a) For the ▇▇▇▇▇▇ Stock and at any time,
either (i) the closing-sale price on the immediately
preceding Business Day as appearing on any
regularly-published reporting or quotation service,
or (ii) the value reasonably determined by Lender in
good faith after taking into account marketability,
applicable restrictions, and other relevant factors.
(b) For Publicly-Traded Stock and at any
time, either (i) the closing-sale price on the
immediately preceding Business Day as appearing on
any regularly-published reporting or quotation
service, or (ii) if not so reported, the value
agreed upon by Borrower and Lender in good faith
after taking into account marketability, applicable
restrictions, and other relevant factors, or (iii)
absent that agreement, as determined by Lender in
its sole discretion.
DNL INTEREST means all present and future right,
title, and interest now owned or subsequently acquired by
Borrower, M&A, or both as a limited partner in DNL Partners,
a Delaware limited partnership ("DNL"), including, but not
limited to, the rights of Borrower, M&A, or both (a) in and
to the ▇▇▇▇▇▇ Stock and (b) under the Assignment dated August
18, 1995, between M&A and DNL Group, L.L.C., and the
Supplementary Agreement dated August 18, 1995, as amended by
the Amendment to Supplementary Agreement dated October 3,
1996, between M&A and DNL Group, L.L.C., together with all of
the following: (i) All present and future increases, profits,
combinations, and reclassifications of, stock dividends,
options, warrants, or subscription, or similar rights issued
in connection with, and substitutes and replacements for, any
portion of the DNL Interest or the ▇▇▇▇▇▇ Stock, whether
arising in connection with any recapitalization,
reclassification, merger, consolidation, conversion, sale of
assets, combination of shares, stock split, or spin-off; and
(ii) all present and future dividends and other cash and
non-cash proceeds of, or distributions
-2- FOURTH AMENDMENT
3
in connection with, any of the foregoing.
INTEREST EXPENSE ESCROW ACCOUNTS means
interest-bearing deposit accounts established by Borrower
with Lender [Account #s 01 26165 0001 01 001 (Non-Dividend)
and 01 26165 0001 02 001(Commingled)] for deposit of proceeds
from the sale (or anything derived from or income produced by
such proceeds) of Other Assets.
INTEREST PAYMENT means the PRODUCT of (a) the SUM of
the three-month Eurodollar Deposit Rate as published in the
Wall Street Journal on the first Business Day of each month
PLUS 2.75% TIMES (b) unpaid principal balance of the Loan.
M&A means M&A Investments, Inc.
NATIONAL STEEL TRUE-UP means the estimated amount
that Borrower anticipates and represents that it will receive
at the time of redemption of the Series B Preferred Stock of
National Steel Corporation, a Delaware corporation.
OTHER ASSETS means those assets which are not
associated with or related to the dividend distributed by
FoxMeyer Corporation on June 19, 1996.
SECURITY AGREEMENT means (a) for Borrower, a
Security Agreement in substantially the form of EXHIBIT B-1,
(b) for ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, a Security Agreement in
substantially the form of EXHIBIT B-2, and (c) for M&A, a
Security Agreement in substantially the form of EXHIBIT B-4.
(b) SECTION 2.4 is entirely amended as follows:
2.4 Collateral-Base Deficiency. If a Collateral-Base
Deficiency ever exists, then, within three Business Days
after demand by Lender, Borrower shall wholly eliminate that
Collateral-Base Deficiency by (a) prepaying principal of the
Loan, (b) pledging additional ▇▇▇▇▇▇ Stock or Publicly-Traded
Stock, as the case may be, to Lender in accordance with
SECTION 4 if that would eliminate the particular
Collateral-Base Deficiency, or (c) any combination of the
foregoing. Lender may become aware of a Collateral-Base
Deficiency and elect in its sole discretion to not make (or
to defer making) demand upon Borrower under this section.
That election by Lender is not a waiver of any
Collateral-Base Deficiency then or subsequently existing and
is revocable in Lender's sole discretion at any time.
(c) A new SECTION 3.7(d) is added and the final two
sentences of SECTION 3.7 are entirely amended as follows:
(d) Borrower shall make a mandatory
prepayment of a percentage of the net proceeds from
the sale of any Other Asset, which percentage shall
be one of the following:
(i) 50%, except to the extent
that either CLAUSE (II) or CLAUSE (III)
below is applicable; or
-3- FOURTH AMENDMENT
4
(ii) 25%, to the extent that (A)
$5,000,000 in prepayments have been made
under this SECTION 3.7(D) and (B) 250% of
the unpaid principal balance of the Loan is
less than the total Collateral Base; or
(iii) 0%, to the extent that (A)
the unpaid principal balance of the Loan is
less than $10,000,000 and (B) 300% of the
unpaid principal balance of the Loan is
less than the total Collateral Base.
All prepayments under this SECTION 3.7(d) shall be
applied in the following order: (1) amounts (if any)
required to be deposited into the Interest Expense
Escrow Accounts; (2) to principal of the Loan in
reduction of the payment of principal of $2,500,000,
due on September 6, 1997; and (3) otherwise as a
prepayment of principal of the Loan.]
Except as stated in CLAUSE (D) above, all partial prepayments
shall be applied to the principal installments on the Note in
inverse order of maturity. All prepayments may be made
without premium or penalty but with all amounts owed under
SECTION 3.14(b) as a result of the prepayment. No prepayment
may be reborrowed under this agreement by Borrower.
(d) The first sentence of SECTION 3.8 is entirely
amended as follows:
All payments and prepayments of principal of, and interest
on, the Note to Lender must be made by Borrower before 2:00
p.m. in federal or other immediately available funds at
Credit Lyonnais New York Branch for the account of Lender
and, unless Lender otherwise first agrees in writing, from
Other Assets or the proceeds of Other Assets; and,
notwithstanding the following provisions, no payments or
prepayments shall, without Lender's consent first being
obtained, be applied to the Additional Obligation until the
Obligation is paid and performed in full.
(e) A new SECTION 3.17 is added as follows:
3.17 Interest Expense Escrow Accounts.
(a) Interest on the Obligation shall be
paid from the Interest Expense Escrow Accounts. As
of December 12, 1996, Borrower shall deposit
approximately $600,000 into the Interest Expense
Escrow Account (Non-Dividend). Thereafter, to the
extent required, Borrower shall make additional
deposits into the Interest Expense Escrow Accounts
such that the balance thereof shall always be equal
to at least the amount required to cover all
Interest Payments that will become due during any
subsequent three month period.
(b) In connection with each deposit into
either of the Interest Expense Escrow Accounts,
Borrower shall deliver to Lender a Funds Source
Certificate in the form of EXHIBIT C-6 attached
designating the account into which the funds should
be deposited and designating the source of such
funds.
-4- FOURTH AMENDMENT
5
(f) The preamble to SECTION 4.1 is entirely amended as
follows:
4.1 Collateral. Borrower shall cause the full
payment and performance of the (i) Obligation to be secured
by Lender Liens on all of the following items and types of
property (together with all cash and noncash proceeds and
other related items and types of property described in the
Security Agreements, the "COLLATERAL"), and (ii) Additional
Obligation to be secured by Lender Liens on all of the
Collateral except any Collateral arising under CLAUSES (b) or
(D) below:
(g) SECTION 4.1(a) (and all references to SECTION
4.1(A)) are entirely deleted and, in the case of SECTION 4.1(A) (but
not the cross references thereto), replaced with the words
"Intentionally Deleted."
(h) SECTIONS 4.1(e), (f), and (g) are entirely amended or
added as follows:
(e) All proceeds owed to Borrower and now or in
the future paid to Borrower from the National Steel True-Up.
(f) All present and future right, title, and
interest owned now or in the future directly or indirectly by
Borrower, M&A, or both in the DNL Interest and the ▇▇▇▇▇▇
Stock.
(g) The Interest Expense Escrow Accounts and all
funds and proceeds now or in the future deposited into those
accounts.
(i) A new SECTION 4.3 is added as follows:
4.3 Further Release Provisions.
(a) If the Obligation has been paid and
performed in full, if the Collateral arising under
SECTIONS 4.1(b) and (d) has been released from all
Lender Liens, and if any Additional Obligation is
outstanding and liquidated (i.e., certain what and
how much is due and payable), then (upon Borrower's
written request and at Borrower's cost and expense)
Lender shall cause the Lender Liens on the
Collateral arising under SECTION 4.1(f) to be
partially released up to the extent that the
Collateral Value of that Collateral at that time
exceeds the Additional Obligation.
(b) Upon Borrower's written request and at
Borrower's cost and expense, Lender shall cause the
Lender Liens on all Collateral to be released if (i)
the Obligation has been fully paid and performed and
(ii) if there is any outstanding liquidated (I.E.,
certain what and how much is due and payable)
Additional Obligation, it has been fully paid and
performed.
(c) As of December 12,1996, none of the
Additional Obligation is outstanding and liquidated
(i.e., certain what and how much is due and
-5- FOURTH AMENDMENT
6
payable).
(j) SECTION 9 (and all cross-references to SECTION 9) are
entirely deleted and, in the case of SECTION 9 (but not the
cross-references thereto), replaced with the words "Intentionally
Deleted."
(k) SECTION 10.1(I) (and all references to SECTION
10.1(I)) are entirely deleted and in the case of SECTION 10.1(I) (but
not the cross-references thereto), replaced with the words
"Intentionally Deleted."
(l) SCHEDULE 8.6 is entirely replaced with AMENDED
SCHEDULE 8.6, and all references to SCHEDULE 8.6 shall refer to the
attached AMENDED SCHEDULE 8.6.
(m) New EXHIBIT B-4 is added to the Credit Agreement in
the form of the attached EXHIBIT B-4.
(n) EXHIBIT C-3 is entirely replaced with AMENDED EXHIBIT
C-3, and all references to EXHIBIT C-3 shall refer to the attached
AMENDED EXHIBIT C-3.
(o) A new EXHIBIT C-6 is added as attached.
3. AMENDMENTS TO SECURITY AGREEMENT.
(a) PARAGRAPH 2 of the Security Agreement is entirely
amended as follows:
2. SECURITY INTEREST. Upon and subject to the terms
and conditions of this agreement and the Credit Agreement and
to secure the prompt, unconditional, and complete payment and
performance of the (a) Obligation when due, Debtor grants to
Secured Party a security interest in the Collateral and
pledges and collaterally transfers and assigns the Collateral
to Secured Party, and (b) Additional Obligation when due,
Debtor grants to Secured Party a security interest in the
Collateral (except any Collateral arising under CLAUSE (C)
below) and pledges and collaterally transfers and assigns the
Collateral (except any Collateral arising under CLAUSE (C)
below) to Secured Party.
(b) The first sentence of PARAGRAPH 3 of the Security
Agreement is entirely amended as follows:
The Security Interest is given as security only for the
purposes described in PARAGRAPH 2 above.
(c) PARAGRAPH 4 of the Security Agreement is amended to
add the following sub-paragraphs as follows:
(d) All present and future right, title, and interest now
owned or subsequently acquired by Debtor as a limited partner in DNL
Partners, a Delaware limited partnership ("DNL"), including but not
limited to the rights of Debtor (i) in and to the ▇▇▇▇▇▇ Stock that
-6- FOURTH AMENDMENT
7
Debtor is entitled to receive, or actually receives, on account of any
ownership of a partnership interest in DNL and (ii) under the
Assignment dated August 18, 1995 between M&A Investments, Inc. ("M&A")
and DNL Group, L.L.C. and the Supplementary Agreement dated August 18,
1995, as amended by the Amendment to Supplementary Agreement dated
October 3, 1996, between M&A and DNL Group, L.L.C., together with all
of the following: (i) all present and future increases, profits,
combinations and reclassifications of, stock dividends, options,
warrants or subscription or similar rights issued in connection with,
and substitutes and replacements for, any portion of any of the
foregoing, whether arising in connection with any recapitalization,
reclassification, merger, consolidation, conversion, sale of assets,
combination of shares, stock split or spin-off; and (ii) all dividends
and other cash and non-cash proceeds of, or distributions in
connection with, any of the foregoing. Debtor shall cause M&A to
execute and deliver to Secured Party, a pledge agreement in favor of
Secured Party granting a direct security interest of M&A's interest in
the foregoing.
(e) All present and future right, title, and interest
owned now or in the future by Debtor in ▇▇▇▇▇▇, Inc.
(f) All proceeds owed to Debtor and now or in the future
paid to Debtor from the National Steel True-Up.
(g) All present and future right, title, and interest
owned now or in the future directly or indirectly by Debtor, M&A, or
both in the DNL Interest and the ▇▇▇▇▇▇ Stock.
(h) The Interest Expense Escrow Accounts and all
funds and proceeds now or in the future deposited into those accounts.
4. CONDITIONS PRECEDENT. PARAGRAPHS 2 and 3 above are not
effective until (a) Lender receives counterparts of this amendment executed by
each party listed below, (b) Borrower provides Lender with a fully executed
Security Agreement in the form of EXHIBIT B-4 (attached) granting of the
security interest described in PARAGRAPHS 2 and 3 of it, (c) Borrower executes
any financing statements and financing statement amendments necessary in
connection with the grant of the additional security interests, (d) Borrower
provides Lender with evidence of the establishment and initial funding of the
Interest Expense Escrow Accounts, (e) Borrower shall cause M&A to provide to
Lender, within ten days of the date of this amendment, an executed Officers'
Certificate, certifying to the Articles of Incorporation, Bylaws, board
resolutions, and incumbency of M&A and provide copies of each of the above, (f)
Borrower remits to Lender an amendment fee equal to $55,875, and (g) Borrower
remits to ▇▇▇▇▇▇ and ▇▇▇▇▇, L.L.P., $27,141.65 for outstanding invoices as of
the date of this amendment in respect of services rendered to Lender under the
Loan Documents.
5. RATIFICATIONS. Borrower (a) ratifies and confirms all
provisions of the Loan Documents as amended by this amendment, (b) ratifies and
confirms that all guaranties, assurances, and Liens granted, conveyed, or
assigned to Lender under the Loan Documents (as they may have been renewed,
extended, and amended) are not released, reduced, or otherwise adversely
affected by this amendment and continue to guarantee, assure, and secure full
payment and performance of the present and future Obligation, and (c) agrees to
perform such acts and duly authorize, execute, acknowledge, deliver, file, and
record such additional documents, and certificates as Lender may request in
order to create, perfect, preserve, and protect those guaranties, assurances,
and Liens.
-7- FOURTH AMENDMENT
8
6. REPRESENTATIONS. Borrower represents and warrants to Lender
that as of the date of this amendment (and except as may have been waived
pursuant to PARAGRAPH 4 above) (a) all representations and warranties in the
Loan Documents are true and correct in all material respects except to the
extent that (i) any of them speak to a different specific date or (ii) the
facts on which any of them were based have been changed by transactions
contemplated or permitted by the Credit Agreement, (b) no Material-Adverse
Event (other than as may exist as a result of the bankruptcy filing by FoxMeyer
Corporation and certain of its subsidiaries), Default or Potential Default
exists, and (c) the consent or approval of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., to this
amendment is not required under any circumstances, including, without
limitation, for the continued effectiveness of the Security Agreement dated as
of September 6, 1995, executed by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., as Pledgor, for the
benefit of Lender as Secured Party.
7. MISCELLANEOUS. All references in the Loan Documents to the
"Credit Agreement" refer to the Credit Agreement as amended by this amendment.
This amendment is a "Loan Document" referred to in the Credit Agreement, and
the provisions relating to Loan Documents in SECTIONS 1 and 11 are incorporated
in this amendment by reference. Except as specifically amended and modified in
this amendment, the Credit Agreement is unchanged and continues in full force
and effect. This amendment may be executed in any number of counterparts with
the same effect as if all signatories had signed the same document. All
counterparts must be construed together to constitute one and the same
instrument. This amendment binds and inures to each of the undersigned and
their respective successors and permitted assigns, subject to SECTION 11.12.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Remainder of page intentionally blank]
-8- FOURTH AMENDMENT
9
EXECUTED as of the date first stated above.
FOXMEYER HEALTH CORPORATION, CREDIT LYONNAIS NEW YORK BRANCH,
as Borrower as Lender
By By
--------------------------------- ----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice (Name)
President and Treasurer -------------------------------
(Title)
------------------------------
SIGNATURE PAGE TO FOURTH AMENDMENT FOURTH AMENDMENT
10
AMENDED SCHEDULE 8.6
PERMITTED DISTRIBUTIONS
1. Redemptions by Borrower of its common stock in exchange for its
securities ("PIK SECURITIES") that (a) do not mature until after the
Stated-Termination Date and (b) either (i) any Distributions paid or
payable on those securities on or before the Stated-Termination Date
are paid in kind (and not in cash) by the issuance of additional
securities of the same class and nature or (ii) are issued at a
discount from face or par value and do not pay any Distributions.
2. Other redemptions by Borrower of its common stock after November 25,
1996, that when aggregated with Borrower's redemption of common stock,
never involves more than $10,000,000 total purchase price.
3. In respect of the 836,000 shares of Borrower's $5 Cumulative
Convertible Preferred Stock that are issued and outstanding as of the
Closing Date (a) dividends in the ordinary course of Borrower's
business payable in accordance with the stated terms of that stock in
effect as of the Closing Date, and (b) redemptions of that stock, in
the ordinary course of Borrower's business, in accordance with the
following-described redemption requirements. Borrower is required to
set aside in trust, when and as appropriated by the Board of Directors
out of funds legally available for the purpose, on or before the next
business day preceding January 15 in each of the years 1993 to 2002,
inclusive, as a sinking fund payment, an amount in cash sufficient to
redeem on each such January 15, 88,000 shares of Borrower's $5
Cumulative Convertible Preferred Stock and on or before January 15,
2003, as a sinking fund payment, an amount in cash sufficient to
redeem on such date, 220,000 shares of $5 Cumulative Convertible
Preferred Stock. Each such sinking fund payment must be applied on
January 15 to the redemption at the redemption price of $50 per share,
plus an amount equal to the dividends accrued and unpaid on such
shares to the date of redemption. The sinking fund requirements set
forth in the preceding sentence are cumulative.
4. In respect of the 4,074,126.54 shares of Borrower's $4.20 Cumulative
Exchangeable Series A Preferred Stock and any additional shares of
that stock that are issuable as dividends thereon (a) dividends in the
ordinary course of Borrower's business payable in accordance with the
stated terms of that stock in effect as of the Closing Date, and (b)
redemptions of that stock in exchange for PIK Securities.
5. Payments by Borrower under the Tax-Sharing Agreement as in effect on
the Closing Date.
6. Dividends in kind by Borrower to its shareholders of the capital stock
of Ben Franklin Retail Stores, Inc., owned as of the Closing Date by
Borrower.
7. Redemption by Borrower of its preferred stock after November 25, 1996,
that, when aggregated with Borrower's redemption of common stock, does
not exceed $10,000,000 total purchase price.
AMENDED SCHEDULE 8.6
11
EXHIBIT B-4
SECURITY AGREEMENT
(M&A Investments, Inc.)
THIS AGREEMENT is executed as of December 12, 1996, by M&A
INVESTMENTS, INC., a Delaware corporation ("PLEDGOR"), for the benefit of
CREDIT LYONNAIS NEW YORK BRANCH, a duly licensed branch under the New York
Banking Law of a foreign banking corporation organized under the Laws of the
Republic of France ("SECURED PARTY").
Secured Party and FoxMeyer Health Corporation ("BORROWER") have
executed the Credit Agreement (as renewed, extended, amended, or restated, the
"CREDIT AGREEMENT") dated as of September 6, 1995. Borrower owns 100% of
Pledgor. Therefore, Pledgor will substantially and directly benefit by that
loan by Secured Party to Borrower. The execution and delivery of this agreement
are integral to transactions contemplated by the Credit Agreement, are
conditions precedent to Secured Party's amendment to the Credit Agreement.
ACCORDINGLY, for adequate and sufficient consideration, Pledgor agrees
with Secured Party as follows:
1. Definitions. Terms defined in the Credit Agreement or the UCC
have the same meanings when used -- unless otherwise defined -- in this
agreement. If the definition given a term in the Credit Agreement conflicts
with the definition given that term in the UCC, then the Credit Agreement
definition controls to the extent allowed by Law. If the definition given a
term in Chapter 9 of the UCC conflicts with the definition given that term in
any other chapter of the UCC, then the Chapter 9 definition controls.
Furthermore, as used in this agreement:
COLLATERAL is defined in PARAGRAPH 4 below.
CREDIT AGREEMENT is defined in the recitals to this agreement.
DEFAULT is defined in PARAGRAPH 8 below.
OBLIGOR means any Person obligated with respect to any of the
Collateral, whether as a party to a contract, an account debtor, issuer of any
securities, or otherwise.
PROCESS AGENT means either (a) CT Corporation, whose address is ▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or (b) M&A Investments, c/o ▇▇. ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECURED OBLIGATION means (a) the "Obligation" and "Additional
Obligation" as defined in the Credit Agreement, (b) all present and future
indebtedness, liabilities, and obligations of Pledgor arising under this
agreement, and (c) all present and future costs, attorneys' fees, and expenses
reasonably incurred by Secured Party to enforce its rights under this agreement
or to enforce Borrower's or any other obligor's payment of any of the
Obligation, including, without limitation (to the extent lawful), all present
and future amounts that would become due but for the operation of Section 502
or 506 or any other provision of Title 11 of the United States Code and all
present and future accrued and unpaid interest (including, without limitation,
all post-petition interest if Borrower or Pledgor voluntarily or involuntarily
becomes subject to any Debtor Law).
SECURED PARTY is defined in the preamble to this agreement and
includes any successors, participants, or assigns under SECTION 11.12 of the
Credit Agreement.
EXHIBIT B-4
12
SECURITY INTEREST means the security interests granted and the
transfers, pledges, and assignments made under PARAGRAPH 2 below, which is a
"Lender Lien," as defined in the Credit Agreement.
UCC means the Uniform Commercial Code as adopted in New York or any
other applicable jurisdiction.
2. SECURITY INTEREST. To secure the prompt, unconditional, and
complete payment and performance of the Secured Obligation when due, Pledgor
grants to Secured Party a security interest in the Collateral and pledges and
collaterally transfers and assigns the Collateral to Secured Party, all upon
and subject to the terms and conditions of this agreement.
3. NO ASSUMPTION OR MODIFICATION. The Security Interest is given
as security only in order to secure the prompt, unconditional, and complete
payment and performance of the Secured Obligation when due. Secured Party does
not assume or may not become liable for Pledgor's liabilities, duties, or
obligations under or in connection with the Collateral. Neither Secured Party's
acceptance of this agreement nor its taking any action in carrying out this
agreement constitutes Secured Party's approval of the Collateral or Secured
Party's assumption of any obligation under or in connection with the
Collateral. This agreement does not affect or modify Pledgor's obligations with
respect to any Collateral.
4. COLLATERAL. The term "COLLATERAL" means the following items
and types of property:
A. Any and all present and future shares of ▇▇▇▇▇▇, Inc.
currently held or in the future received by Pledgor, together with (a)
All present and future increases, profits, combinations, and
reclassifications of, stock dividends, options, warrants, or
subscription or similar rights issued in connection with, and
substitutes and replacements for, any of that stock, whether arising
in connection with any recapitalization, reclassification, merger,
consolidation, conversion, sale of assets, combination of shares,
stock split, or spin-off; and (b) all dividends and other cash and
noncash proceeds of, or distributions in connection with, any of the
foregoing. In connection with such pledge, Pledgor will execute and
will cause DNL Partners to execute the acknowledgment of pledge
substantially in the form attached as ANNEX 1, within 10 days after
the date of this agreement.
B. All present and future right, title, and interest now
owned or subsequently acquired by Pledgor as a limited partner in DNL
Partners, a Delaware limited partnership ("DNL"), including but not
limited to the rights of Pledgor (i) in and to the shares of common
stock of ▇▇▇▇▇▇, Inc. that Pledgor is entitled to receive, or actually
receives, on account of any ownership of a partnership interest in DNL
and (ii) under the Assignment dated August 18, 1995 between Pledgor
and DNL Group, L.L.C. and the Supplementary Agreement dated August 18,
1995, as amended by the Amendment to Supplementary Agreement dated
October 3, 1996, between Pledgor and DNL Group, L.L.C., together with
all of the following: (i) all present and future increases, profits,
combinations and reclassifications of, stock dividends, options,
warrants or subscription or similar rights issued in connection with,
and substitutes and replacements for, any portion of any of the
foregoing, whether arising in connection with any recapitalization,
reclassification, merger, consolidation, conversion, sale of assets,
combination of shares, stock split or spin-off; and (ii) all dividends
and other cash and non-cash proceeds of, or distributions in
connection with, any of the foregoing.
The description of Collateral does not permit any action prohibited by this
agreement or by any other Loan Document.
5. FRAUDULENT CONVEYANCE. Notwithstanding any contrary provision,
Pledgor agrees that, if -- but for the application of this paragraph -- any of
the Secured Obligation or the Security Interest would constitute a preferential
transfer under 11 U.S.C. Section 547, a fraudulent conveyance under 11 U.S.C.
Section 548, or a fraudulent conveyance or transfer under any state fraudulent
conveyance, fraudulent transfer, or similar Law in effect from
EXHIBIT B-4
13
time to time (each a "FRAUDULENT CONVEYANCE"), then the Secured Obligation
and Security Interest remain enforceable to the maximum extent possible without
causing any of the Secured Obligation or the Security Interest to be a
fraudulent conveyance, and this agreement is automatically amended to carry out
the intent of this paragraph.
6. REPRESENTATIONS AND WARRANTIES. Pledgor represents and
warrants to Secured Party that:
a. Organization. Pledgor is a Delaware corporation,
duly organized and existing in good standing under Delaware laws, is
duly qualified and is in good standing in all other states in which it
is doing business, and has the power and authority to own its
properties and assets and to transact the business in which it is
engaged.
b. Authorization and Power. Pledgor has the power and
requisite authority to execute, deliver, and perform this agreement.
Pledgor is duly authorized to execute, deliver, and perform this
agreement.
c. No Conflicts or Consents. Neither the execution and
delivery of, nor the consummation of any of the transactions
contemplated in, nor compliance with the terms and provisions of, this
agreement will contravene or materially conflict with its articles of
incorporation, bylaws, or with the partnership agreement of DNL
Partners or any provision of Law to which Pledgor is subject, or any
judgment, license, order, or permit applicable to Pledgor, or any
indenture, loan agreement, mortgage, deed of trust, or other agreement
or instrument to which Pledgor is a party or by which Pledgor may be
bound or subject. No consent, approval, authorization, or order of any
Governmental Authority or third party is required in connection with
the execution and delivery by Pledgor of, or the consummation of the
transactions contemplated by, this agreement.
d. Solvency. The fair-market value of Pledgor's assets
exceeds its liabilities, Pledgor it has sufficient cash flow to enable
it to pay its debts as they mature, and Pledgor does not have
unreasonably small capital to conduct its businesses.
e. Binding Obligation. This agreement has been duly
executed and delivered by Pledgor and is the legal and binding
obligation of Pledgor, enforceable in accordance with its terms,
except as limited by Debtor Laws and general principles of equity.
f. Lender Lien. This agreement creates a legal, valid,
and binding Lender Lien in and to the Collateral in favor of Secured
Party and enforceable against Pledgor. Once perfected, the Security
Interest will constitute a first-priority Lender Lien on the
Collateral.
g. Additional Collateral. The foregoing representations
and warranties will be true and correct in all respects with respect
to any additional Collateral or additional specific descriptions of
certain Collateral delivered by Pledgor to Secured Party in the
future. The failure of any of these representations or warranties to
be accurate and complete does not impair the Security Interest in any
Collateral.
7. COVENANTS. While Lender is committed to lend or extend credit under
the Credit Agreement and until the Secured Obligation is fully paid and
performed, Pledgor covenants and agrees with Secured Party that, without first
obtaining Secured Party's written consent to the contrary:
a. Other Collateral. Pledgor shall hold in trust (and
not commingle with other assets of Pledgor) for Secured Party all
Collateral that constitutes instruments or documents at any time
received by Pledgor and promptly deliver same to Secured Party unless
Secured Party at its option (which may be evidenced only by a writing
signed by Secured Party stating that Secured Party elects to permit
Pledgor
-3- EXHIBIT B-4
14
to so retain) permits Pledgor to retain the same, but any instruments
or documents so retained shall be marked to state that they are
assigned to Secured Party and each such instrument shall be endorsed
to the order of Secured Party (but the failure of same to be so marked
or endorsed shall not impair the Security Interest thereon).
b. Liens. Pledgor may not create, incur, or suffer or
permit to be created or incurred or to exist any Lien upon or against
any of the Collateral.
c. Distribution of Stock. On or after April 30, 1997, at
the request of Secured Party, Pledgor will cause DNL Partners to (i)
distribute the ▇▇▇▇▇▇ Stock to Pledgor (within 10 days of such
request) and (ii) deliver the ▇▇▇▇▇▇ Stock and blank stock powers
within 15 days of such request to Lender, each as permitted by the
Supplementary Agreement dated August 18, 1995, and the Amendment to
Supplementary Agreement dated October 3, 1996, between Pledgor and DNL
Group, L.L.C.
d. Further Assurances. Pledgor shall from time to time
promptly execute and deliver to Secured Party all such other
assignments, certificates, supplemental documents, and financing
statements, and do all other acts or things as Secured Party may
reasonably request in order to more fully create, evidence, perfect,
continue, and preserve the priority of the Security Interest.
8. DEFAULT. The term "DEFAULT" means the occurrence of any one
or more of the following events ("DEFAULT"):
a. Credit Agreement. The occurrence of a Default as
defined in the Credit Agreement.
b. Covenants. Pledgor fails or refuses to perform,
observe, or comply with any agreement, covenant, or provision in this
agreement, and that failure or refusal continues for ten days after
written notice to Pledgor.
c. Receivers, etc. Pledgor (i) applies for or consents
to the appointment of a receiver, trustee, custodian, intervenor or
liquidator of itself or of all or a substantial part of its assets,
(ii) files a voluntary petition in bankruptcy, admits in writing that
it is unable to pay its debts as they become due, or generally does
not pay its debts as they become due, (iii) makes a general assignment
for the benefit of creditors, (iv) files a petition or answer seeking
reorganization of an arrangement with creditors or to take advantage
of any bankruptcy or insolvency laws, (v) files an answer admitting
the material allegations of, or consents to, or defaults in answering,
a petition filed against it in any bankruptcy, reorganization or
insolvency proceeding, or (vi) takes corporate action for the purpose
of effecting any of the foregoing.
d. Debtor Laws. An involuntary petition or complaint is
filed against Pledgor seeking bankruptcy or reorganization of Pledgor
or the appointment of a receiver, custodian, trustee, intervenor or
liquidator of Pledgor, or all or substantially all of its assets, and
such petition or complaint shall not have been dismissed within 60
days of the filing thereof; or an order, order for relief, judgment or
decree is entered by any court of competent jurisdiction or other
competent authority approving a petition or complaint seeking
reorganization of Pledgor or appointing a receiver, custodian,
trustee, intervenor or liquidator of Pledgor, or of all or
substantially all of its assets.
9. REMEDIES UPON DEFAULT. While a Default exists, Secured Party
is entitled to exercise any one or more of the following rights.
a. Rights. Subject to PARAGRAPH 11(L) below, Secured
Party may exercise any and all rights available to a secured party
under the UCC, in addition to any and all other rights afforded by
this agreement and the other Loan Documents, at law, in equity, or
otherwise, including, without limitation
-4- EXHIBIT B-4
15
(i) applying by appropriate judicial proceedings for appointment of a
receiver for Collateral, (ii) applying to the Secured Obligation any
cash held by Secured Party under this agreement, and (iii) foreclosing
the Security Interest and any other Liens Secured Party may have or
otherwise realize upon any and all of the rights Secured Party may
have in and to Collateral.
b. Securities. In connection with the sale of any
Collateral that is securities, Secured Party is authorized, but not
obligated, to limit prospective purchasers to the extent deemed
necessary or desirable by Secured Party to render such sale exempt
from the registration requirements of the Securities Act and any
applicable state securities Laws, and no sale so made in good faith by
Secured Party may be deemed not to be "commercially reasonable"
because so made.
c. Other Sales. Secured Party's sale of less than all
Collateral does not exhaust Secured Party's rights under this
agreement in respect of the Collateral not sold. Secured Party is
specifically empowered to make successive sales until all Collateral
is sold. If the proceeds of a sale of less than all Collateral is less
than the Secured Obligation, then this agreement and the Security
Interest remain in full force and effect as to the unsold portion of
the Collateral just as though no sale had been made. In the event any
sale under this agreement is not completed or is, in Secured Party's
opinion, defective, that sale does not exhaust Secured Party's rights
under this agreement, and Secured Party is entitled to cause a
subsequent sale or sales to be made. All statements of fact or other
recitals made in any ▇▇▇▇ of sale or assignment or other instrument
evidencing any foreclosure sale under this agreement -- whether about
nonpayment of the Secured Obligation, the occurrence of any Default,
Secured Party's having declared all of the Secured Obligation to be
due and payable, notice of time, place, and terms of sale and the
properties to be sold having been duly given, or any other act or
thing having been duly done by Secured Party -- shall be taken as
prima facie evidence of the truth of the facts so stated and recited.
Secured Party may appoint or delegate any one or more Persons as agent
to perform any act or acts necessary or incident to any sale held by
Secured Party, including the sending of notices and the conduct of
sale, but such acts must be done in the name and on behalf of Secured
Party.
d. Application of Proceeds. Secured Party shall apply
the proceeds of any sale or other disposition of Collateral in the
following order: (i) Payment of all its reasonable expenses incurred
in retaking, holding, and preparing any Collateral for disposition, in
arranging for such disposition, and in actually disposing of the same
(all of which are part of the Secured Obligation); (ii) repayment of
amounts reasonably expended by Secured Party under ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇;
(▇▇▇) payment of the balance of the Secured Obligation in the order
and manner specified in the Credit Agreement; and (iv) delivery either
(A) to Pledgor or (B) as a court of competent jurisdiction may direct.
10. OTHER RIGHTS.
a. Collateral in Secured Party's Possession. Except for
Secured Party's own fraud, gross negligence, or willful misconduct,
the risk of accidental loss or damage to, or diminution in value of,
any Collateral is on Pledgor. Secured Party has no duty to fix or
preserve rights against any Obligors in respect of any Collateral and
is never liable for any failure to use diligence to collect any amount
payable in respect of any Collateral (other than to account to Pledgor
for what Secured Party may actually collect or receive).
b. Certain Proceeds. Notwithstanding any contrary
provision in this agreement, the Security Interest in the profits,
stock dividends, options, warrants, subscription or similar rights,
dividends and other cash and noncash proceeds, and other distributions
that are described in PARAGRAPH 4 (the "Collateral Proceeds") may only
be enforced while a Default exists. If any Collateral Proceeds (while
a Default exists) or any other Collateral (whether a Default exists or
not) are received by Pledgor, Pledgor shall hold it in trust for
Secured Party's benefit and shall immediately deliver it to Secured
Party (accompanied by proper instruments of assignment or stock or
bond powers executed by Pledgor in
-5- EXHIBIT B-4
16
accordance with Secured Party's instructions) to be held subject to
the terms of this agreement. Any cash proceeds of any Collateral that
come into Secured Party's possession (including, without limitation,
insurance proceeds) may, at Secured Party's option, be applied in
whole or in part to the Secured Obligation (to the extent then due),
be fully or partially released to or under the written instructions of
Pledgor for any general or specific purpose, or be fully or partially
retained by Secured Party as additional Collateral. Any cash
Collateral in Secured Party's possession may be invested by Secured
Party in certificates of deposit issued by Secured Party or any other
state or national bank having combined capital and surplus greater
than $100,000,000 or in securities issued or guaranteed by the United
States of America or any of its agencies. Secured Party is never
obligated to make any investment and never has any liability to
Pledgor for any loss that may result from any investment in accordance
with this CLAUSE (B) or non-investment. All interest and other amounts
earned from any investment may be dealt with by Secured Party in the
same manner as other cash Collateral.
11. MISCELLANEOUS.
a. Term. This agreement terminates when Lender does not
have any commitment to lend or extend credit under the Credit
Agreement and the Secured Obligation is fully paid and performed.
b. No Release. Neither the Security Interest, Pledgor's
obligations, nor Secured Party's rights under this agreement are
released, diminished, impaired, or adversely affected by the
occurrence of any one or more of the following events: (i) The taking
or accepting of any other security or assurance for any Secured
Obligation; (ii) any release, surrender, exchange, subordination, or
loss of any security or assurance at any time existing in connection
with any Secured Obligation; (iii) the modification of, amendment to,
or waiver of compliance with any terms of any other Loan Document
without the consent of Pledgor except as required in that Loan
Document; (iv) any present or future insolvency, bankruptcy, or lack
of corporate or trust power of any party at any time liable for the
payment of any Secured Obligation; (v) except as specifically required
by any other Loan Document, any renewal, extension, or rearrangement
of the payment of any Secured Obligation (either with or without
notice to or consent of any Pledgor) or any adjustment, indulgence,
forbearance, or compromise that may be granted or given by Secured
Party to Pledgor; (vi) any neglect, delay, omission, failure, or
refusal of Secured Party to take or prosecute any action in connection
with any Agreement, document, guaranty, or instrument evidencing,
securing, or assuring the payment of any Secured Obligation; (vii) any
failure of Secured Party to notify any Pledgor of renewal, extension,
or assignment of any Secured Obligation, or the release of any
security under any other document or instrument, or of any other
action taken or refrained from being taken by Secured Party against
Pledgor, or any new Agreement between Secured Party, and Pledgor, it
being understood that, except as expressly required by the Credit
Agreement, Secured Party is not required to give Pledgor any notice of
any kind under any circumstances whatsoever with respect to or in
connection with the Secured Obligation, including, without limitation,
notice of acceptance of this agreement or any Collateral ever
delivered to or for the account of Secured Party under this agreement;
(viii) the illegality, invalidity, or unenforceability of any Secured
Obligation against any third party obligated with respect to it by
reason of the fact that the Secured Obligation, or the interest paid
or payable with respect to any of it, exceeds the amount permitted by
Law, the act of creating any of it is ultra ▇▇▇▇▇, or the officers,
partners, or trustees creating any of it acted in excess of their
authority, or for any other reason; or (ix) if any payment by any
party obligated with respect to any Secured Obligation is held to
constitute a preference under applicable Laws or for any other reason
Secured Party is required to refund any payment on any Secured
Obligation or pay the amount of it to someone else.
c. Releases. When the Secured Obligation is fully paid
and performed or when any of the Collateral is permitted to be
released under Section 4.2 of the Credit Agreement, Secured Party
shall execute and deliver to Pledgor such releases and do all other
acts or things as may be required to release the Security Interest in
that portion of the Collateral to be released at that time, including,
without
-6- EXHIBIT B-4
17
limitation, returning to Pledgor all stock certificates evidencing any
Collateral being released. For purposes of enforcing the right to
obtain partial releases in accordance with the terms of the Loan
Documents, Pledgor is hereby made a third-party beneficiary of the
provisions of Sections 4.2(c), (d), or (e) of the Credit Agreement.
d. Waivers. To the maximum extent lawful, except to the
extent expressly otherwise provided in this agreement or in any other
Loan Document, Pledgor waives (i) any right to require Secured Party
to proceed against any other Person, to exhaust rights in Collateral,
or to pursue any other right that Secured Party may have; (ii) with
respect to the Secured Obligation, presentment and demand for payment,
protest, notice of protest and nonpayment, notice of acceleration, and
notice of intent to accelerate; and (iii) all rights of marshaling in
respect of any Collateral.
e. Financing Statement. Secured Party may at any time
file this agreement (or a carbon, photographic, or other reproduction
of this agreement) as a financing statement, but the failure of
Secured Party to do so does not impair the validity or enforceability
of this agreement.
f. Information. Except as otherwise provided by Law,
Secured Party's charge for furnishing each statement of account or
each list of Collateral is $10.00.
g. Loan Document. This agreement is a Loan Document and
is subject to the applicable provisions of SECTIONS 1 and 11 of the
Credit Agreement, all of which are incorporated in this agreement by
reference the same as if set forth in this agreement verbatim. For
purposes of the notice provisions of Section 11.2 of the Credit
Agreement incorporated into this agreement, Pledgor's address and
telecopier number are stated beside its signature on this agreement.
h. Amendments, Etc. No amendment, waiver, or discharge
to or under this agreement is valid unless it is in writing and is
signed by the party against whom it is sought to be enforced and is
otherwise in conformity with the requirements of SECTION 11.10 of the
Credit Agreement.
i. ENTIRETY. THIS AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
j. Governing Law. The Laws of the State of New York
and of the United States of America govern the rights and duties of
the parties to this agreement and the validity, construction,
enforcement, and interpretation of this agreement.
k. Forum, Consent to Service and Jurisdiction, and Jury
Trial. Any Litigation against Pledgor with respect to this agreement
or any judgment entered by any court in respect of this agreement may
be brought in New York courts or in the United States courts located
in the Borough of Manhattan in New York City as Lender in its sole
discretion may elect. Pledgor hereby submits to the non-exclusive
jurisdiction of those courts for the purpose of any Litigation.
Pledgor hereby agrees that service of all writs, process, and
summonses in any Litigation brought in New York may be brought upon
Process Agent, and Pledgor irrevocably appoints Process Agent as
Pledgor's true and lawful attorney-in-fact in Pledgor's name, place,
and stead to accept that service of all of those writs, process, and
summonses. Pledgor irrevocably consents to the service of process in
any Litigation in those courts by the mailing it by registered or
certified mail, postage prepaid, to Pledgor's address for purposes of
notices under this agreement. Pledgor hereby irrevocably waives any
objections which it may now or in the future have to the laying of
venue of any Litigation arising out of or relating to this agreement
brought in any court located in the Borough of Manhattan, New York
City, and further irrevocably waives any claim that any such
Litigation brought in that court has been brought in an inconvenient
-7- EXHIBIT B-4
18
forum. PLEDGOR WAIVES, TO THE FULLEST EXTENT LAWFUL TO DO SO, ITS
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT.
l. Nonrecourse Obligation. This agreement is nonrecourse
to Pledgor. Secured Party agrees to look solely to Borrower and others
obligated for the payment of any of the Secured Obligation and any
other assurances or security for the payment of any of the Secured
Obligation, including, without limitation, the Collateral, and not to
seek any personal judgment or other recourse against Pledgor or any of
its assets (other than the Collateral) for any of the Secured
Obligation.
m. Parties. This agreement binds and inures to Secured
Party, Pledgor, and their respective successors and assigns. The
rights and obligations of Secured Party under this agreement may be
transferred together along with any assignment of the Secured
Obligation. The Credit Agreement contains provisions governing
assignments of the Secured Obligation and of rights and obligations
under this agreement.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE FOLLOWS.
-8- EXHIBIT B-4
19
EXECUTED as of the date first stated above.
M&A Investments, Inc. M&A INVESTMENTS, INC., as Pledgor
-----------------------------
-----------------------
Telephone ( ) -
--- --- ----
Telecopier ( ) - By
--- --- ---- ------------------------------
Attention: , , President
-------------- --------------
CREDIT LYONNAIS NEW YORK BRANCH,
as Secured Party
By
-------------------------------
(Name)
---------------------------
(Title)
--------------------------
SIGNATURE PAGE TO SECURITY AGREEMENT EXHIBIT B-4
