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EXHIBIT 10.20
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT made this 24th day of May, 1999
(the "FIRST AMENDMENT"), among NATG HOLDINGS, LLC, a Delaware limited liability
company (the "BORROWER"); NORTH AMERICAN TEL-COM GROUP, INC., a Florida
corporation ("NATC"); ORIUS CORP., a Delaware corporation ("ORIUS"); MICH-COM
CABLE SERVICES INCORPORATED, a Michigan corporation; CABLEMASTERS CORP., a
Pennsylvania corporation; CHANNEL COMMUNICATIONS, INC., a Kansas corporation;
EXCEL CABLE CONSTRUCTION, INC., a Florida corporation; U.S. Cable, INC., a
Wisconsin corporation; CATV Subscriber Services, Inc., a North Carolina
corporation; STATE WIDE CATV, INC., a New York corporation; Burn-Techs, Inc., a
Florida corporation; DAS-CO of Idaho, Inc., an Idaho corporation; Xxxxxx
Underground Cable, Inc., a Missouri corporation; Network Cabling Services, Inc.,
a Texas corporation; Copenhagen Utilities & Construction, Inc., an Oregon
corporation; and Texel Corporation, a Virginia corporation ("Texel") (the
foregoing entities, excluding the Borrower, are each referred to individually as
a "GUARANTOR" and collectively and jointly and severally as the "GUARANTORS"),
the BANKS (as hereinafter defined), XXXXXXX XXXXX & CO., XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED, as Joint Lead Arranger and Syndication Agent
(hereinafter referred in such capacities as the "SYNDICATION AGENT") and PNC
BANK, NATIONAL ASSOCIATION, in its capacity as Joint Lead Arranger and
Administrative Agent for the Banks under this Agreement (hereinafter referred to
in such capacities as the "ADMINISTRATIVE AGENT").
WHEREAS, the Borrower, the Guarantors (other than Texel), the
Banks, the Administrative Agent and the Syndication Agent are parties to a
Credit Agreement dated as of February 26, 1999 (the "ORIGINAL CREDIT
AGREEMENT"); and
WHEREAS, pursuant to a stock purchase agreement dated as of
May 24, 1999, the Borrower has acquired all of the capital stock of Texel, and
WHEREAS, Texel has agreed to become a party to the Original
Credit Agreement as a Guarantor under the Original Credit Agreement as amended
hereby; and
WHEREAS, the Borrower, the Guarantors, the Banks, the
Administrative Agent and the Syndication Agent wish to amend the Original Credit
Agreement in certain respects including increasing the principal amount of Term
Loan A to $72,000,000 and increasing the principal amount of Term Loan B to
$58,000,000.
NOW, THEREFORE, in consideration of the premises and covenants
contained herein and intending to be legally bound hereby, the Borrower, the
Guarantors, the Administrative Agent, and the Syndication Agent and the Banks
agree as follows:
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1. DEFINITIONS. Capitalized terms used herein but not defined
or amended herein shall have the meanings set forth in the Original Credit
Agreement.
2. ADDITIONAL DEFINITIONS. The following definitions are
hereby added to Section 1.1 of the Credit Agreement:
AFFIRMATION AND JOINDER TO SECURITY AGREEMENT shall
mean the Affirmation and Joinder to Security Agreement dated as of May 24, 1999
executed by the Borrower, the Guarantors and the Administrative Agent in
substantially the form of EXHIBIT 1.1(S)(2) to the First Amendment and delivered
to the Administrative Agent for its benefit and for the benefit of the Banks.
AFFIRMATION AND JOINDER TO SUBSIDIARY GUARANTY AND
SURETYSHIP AGREEMENT shall mean the Affirmation and Joinder to Subsidiary
Guaranty and Suretyship Agreement dated as of May 24, 1999 executed by the
Subsidiary Guarantors and the Administrative Agent in substantially the form of
EXHIBIT 1.1(G)(3) to the First Amendment and delivered to the Administrative
Agent for its benefit and for the benefit of the Banks.
AFFIRMATION OF NATC PLEDGE AGREEMENT shall mean the
Affirmation of NATC Pledge Agreement dated as of May 24, 1999 executed by NATC
and the Administrative Agent in substantially the form of EXHIBIT 1.1(P)(5) to
the First Amendment and delivered to the Administrative Agent for its benefit
and for the benefit of the Banks.
AMENDMENT CLOSING DATE shall mean May 24, 1999.
AMENDMENT DOCUMENTS shall mean the First Amendment,
each Amended and Restated Term Note A and Amended and Restated Term Note B (each
as described in Section 3.1 hereof), the Affirmation and Joinder to Security
Agreement, the Affirmation and Joinder to Subsidiary Guaranty and Suretyship
Agreement, the Affirmation of NATC Pledge Agreement, the First Amendment to
Borrower Pledge Agreement, and the Orius Affirmation.
AMENDMENT TRANSACTIONS shall mean consummation of the
Texel Acquisition, repayment of the Existing Texel Debt and the additional
extensions of credit under the Original Credit Agreement as amended by the First
Amendment.
EXISTING TEXEL DEBT shall mean all Indebtedness of
Texel which is not Permitted Indebtedness.
FIRST AMENDMENT shall mean the First Amendment to
Credit Agreement dated as of May 24, 1999.
FIRST AMENDMENT TO BORROWER PLEDGE AGREEMENT shall
mean the First Amendment to Borrower Pledge Agreement dated as of May 24, 1999
in substantially the form of Exhibit 1.1(P)(4) to the First Amendment executed
by the Borrower and the Administrative Agent and delivered by the Borrower to
the Administrative Agent for its benefit and the benefit of the Banks.
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ORIUS AFFIRMATION shall mean the Affirmation of Orius
Guaranty and Orius Pledge Agreement dated as of May 24, 1999 in substantially
the form of EXHIBIT 1.1(G)(4) to the First Amendment executed by Orius and the
Administrative Agent and delivered to the Administrative Agent for its benefit
and for the benefit of the Banks.
TEXEL ACQUISITION shall mean the acquisition by
Borrower of 100% of the common stock of Texel with an aggregate cash
consideration of not greater than $26,250,000 and all under terms and conditions
acceptable to the Agents.
TEXEL ACQUISITION AGREEMENT shall mean the Stock
Purchase Agreement dated as of May 24, 1999 among the Borrower, Orius and E.
Xxxxx Xxxxxxxxxx.
3. AMENDMENT TO DEFINITIONS.
(a) The following definitions in the Original Credit
Agreement are hereby amended and restated as follows:
AGREEMENT shall mean the Original Credit Agreement,
as amended by the First Amendment, as the same may be amended, restated,
supplemented or modified from time to time, including all schedules and
exhibits.
BALANCE SHEET ADJUSTMENT PAYMENTS shall mean payments
related to balance sheet adjustments made by Borrower (i) to the Sellers under
the Acquisition Agreement related to the acquisition of Copenhagen, (ii) to the
Sellers under the Acquisition Agreement related to the acquisition of DAS-CO,
and (iii) to the seller under the Texel Acquisition Agreement.
BORROWER PLEDGE AGREEMENT shall mean the Borrower
Pledge Agreement dated as of February 26, 1999 executed by the Borrower, as
amended by the First Amendment to Borrower Pledge Agreement.
BORROWER'S COMPLIANCE CERTIFICATE shall mean the form
of Compliance Certificate described in Section 8.3.4 and in the form attached as
Exhibit 8.3.4 of the First Amendment.
EXCESS CASH FLOW shall be computed as of the close of
each fiscal year by taking the difference between Consolidated Cash Flow from
Operations for such fiscal year and Fixed Charges for such fiscal year and
adding to such difference decreases in Working Capital in such fiscal year or
subtracting from such difference increases in Working Capital in such fiscal
year and subtracting from the resulting subtotal (x) cash consideration paid in
connection with Permitted Acquisitions in such year, (y) cash payments made with
respect to Earn Out Obligations in such year and (z) for 1999, $2,000,000
reflecting the portion of the cash consideration paid in the Texel Acquisition
which was not funded with increases in the Term Loan under the First Amendment.
All determinations of Excess Cash Flow shall be based on the immediately
preceding fiscal year. For purposes of calculating Excess Cash Flow for 1999,
the change in Working Capital will be computed based on the balance sheet of the
Borrower and its
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Subsidiaries as of the Closing Date immediately following consummation of the
Transactions (and, with respect to Texel, its balance sheet as of the Amendment
Closing Date immediately following consummation of the Amendment Transactions)
and the audited balance sheet of the Borrower and its Subsidiaries as of
December 31, 1999.
FIRST PRIORITY FACILITIES shall mean Term Loan A
(including increases therein pursuant to the First Amendment), Term Loan B
(including increases therein pursuant to the First Amendment), and the Revolving
Credit Facility and any additional extensions of credit hereunder consented by
the Required Banks to be a part of the First Priority Facility.
GUARANTORS shall have the meanings given in the
recitals to the First Amendment.
NATC PLEDGE AGREEMENT shall mean the NATC Pledge
Agreement dated as of February 26, 1999 executed and delivered by NATC to the
Administrative Agent for the benefit of the Banks, as affirmed by the
Affirmation of NATC Pledge Agreement.
ORIUS GUARANTY AGREEMENT shall mean the Orius
Guaranty and Suretyship Agreement dated as of February 26, 1999 executed and
delivered by Orius to the Administrative Agent for the benefit of the Banks, as
affirmed by the Orius Affirmation.
ORIUS PLEDGE AGREEMENT shall mean the Orius Pledge
Agreement dated as of February 26, 1999 executed and delivered by Orius to the
Administrative Agent for the benefit of the Banks, as affirmed by the Orius
Affirmation.
SECURITY AGREEMENT shall mean the Security Agreement
dated as of February 26, 1999 executed by the Borrower and the Guarantors, as
amended by the Affirmation and Joinder to Security Agreement.
SUBSIDIARY GUARANTY AGREEMENT shall mean the
Subsidiary Guaranty and Suretyship Agreement dated as of February 26, 1999
executed by each Subsidiary Guarantor (other than Texel), as amended and
affirmed by the Affirmation and Joinder to Subsidiary Guaranty and Suretyship
Agreement.
TERM LOAN A COMMITMENT shall mean initially the
commitment of the Banks with respect to $72,000,000 of Term Loan A as set forth
in SCHEDULE 1.1(B) to the First Amendment and thereafter as modified by
assignments under Assignment Agreements.
TERM LOAN B COMMITMENT shall mean initially the
commitment of the Banks with respect to $58,000,000 of Term Loan B as set forth
in SCHEDULE 1.1(B) to the First Amendment and thereafter as modified by
assignments under Assignment Agreements.
TERM NOTES shall mean collectively and TERM NOTE
shall mean separately all of the Term Notes of the Borrower to each of the
Banks, as applicable, in the form of EXHIBIT 1.1(T)(1), EXHIBIT 1.1(T)(2),
EXHIBIT 1.1(T)(3) to the original Credit Agreement and EXHIBITS 1.1(T)(4) and
1.1(T)(5) to the First Amendment evidencing Term Loan A, Term Loan B, and Term
Loan C, together with all amendments, extensions, renewals, replacements,
refinancings or refunds thereof in whole or in part.
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WORKING CAPITAL shall mean (a) current assets
(excluding cash) of Orius, the Borrower and its Subsidiaries as determined on a
consolidated basis, (b) less the sum of (x) current liabilities of Orius, the
Borrower and its Subsidiaries determined on a consolidated basis (including the
principal balance of the Revolving Credit Loans and current maturities of the
Term Loans), and (y) any obligation classified as a current asset owed to the
Borrower or any Subsidiary of the Borrower by an Affiliate of the Borrower or by
a Subsidiary of such Affiliate, provided that the Working Capital as of the
beginning of a fiscal year (i) with respect to Texel shall be deemed to be as
set forth on its balance sheet as of the Amendment Closing Date immediately
following consummation of the Amendment Transactions, and (ii) with respect to
each Permitted Acquisition during such fiscal year shall be an amount agreed to
among the Borrower and the Agents at the time of such Permitted Acquisition
pursuant to Section 8.2.6(vii) hereof.
(b) The definition of "Permitted Investments" set
forth in Section 1.1 of the Original Credit Agreement is amended to add new
subpart (v) as follows:
(v) the Texel Acquisition.
(c) The definition of "Permitted Liens" set forth in
Section 1.1 of the Original Credit Agreement is amended to amend and restate
subpart (xii) as follows:
(xii) Liens on certain inventory (and the
proceeds thereof) as specified in
various security agreements between
Channel Communications, Inc. and TCI
Atlantic, Inc., TCI Great Lakes, Inc.
and TCI Central, Inc., existing on the
Amendment Closing Date, PROVIDED that
the obligations being secured under
such security agreements do not exceed
$7,000,000 in the aggregate at any
time on or after the Closing Date, and
provided that such liens are released
and discharged promptly following
completion of the contracts existing
on the Amendment Closing Date between
Channel Communications, Inc. and such
entities which relate to such security
agreements.
4. JOINDER. Texel hereby joins the Original Credit Agreement,
as amended hereby, as a Guarantor.
5. AMENDMENT TO REVOLVING CREDIT COMMITMENT. Section 2.8 of
the Original Credit Agreement is hereby amended and restated as follows:
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2.8. USE OF PROCEEDS.
The proceeds of the Revolving Credit Loans shall be
used for general corporate purposes, the Specified
Acquisitions, the Texel Acquisition, Permitted
Acquisitions and in accordance with Section 8.1.11
[Use of Proceeds].
6. AMENDMENT TO TERM LOAN COMMITMENT AND TERM LOAN REPAYMENT.
(a) Section 3.1 of the Original Credit Agreement is
hereby amended and restated as follows:
Subject to the terms and conditions hereof, and
relying upon the representations and warranties
herein set forth, each Bank severally agrees to make
a term loan (the "Term Loan") to the Borrower on the
Closing Date (or with respect to increases in Term
Loan Commitments effective under the First Amendment,
on the Amendment Closing Date) in such principal
amount as the Borrower shall request up to, but not
exceeding such Bank's Term Loan Commitment. The Term
Loan shall consist of Term Loan A in principal amount
of $72,000,000 to be evidenced by a Term Note A
issued to each Bank which does not increase its Term
Loan A Commitment pursuant to the First Amendment and
by an Amended and Restated Term Note A issued to each
Bank which does increase its Term Loan A Commitment
pursuant to the First Amendment (collectively, "Term
Loan A"), Term Loan B in principal amount of
$58,000,000 to be evidenced by a Term Note B issued
to each Bank which does not increase its Term Loan B
Commitment pursuant to the First Amendment and by an
Amended and Restated Term Note B issued to each Bank
which does increase its Term Loan B commitment
pursuant to the First Amendment (collectively, "Term
Loan B"), and Term Loan C in principal amount of
$15,000,000 to be evidenced by Term Note C ("Term
Loan C").
The increase in Term Loan A and Term Loan B pursuant
to the First Amendment shall constitute a part of the
First Priority Facility.
(b) The third sentence of Section 3.2 of the Original
Credit Agreement is hereby amended and restated as follows:
The Banks shall have no obligation to make Term Loans
hereunder after the Amendment Closing Date and the
Term Loan proceeds to be disbursed on the Amendment
Closing Date shall consist of
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$12,000,000 with respect to Term Loan A and
$13,000,000 with respect to Term Loan B.
(c) Section 3.3 of the Original Credit Agreement is
hereby amended and restated as follows:
3.3 TERM LOAN NOTES.
The Obligation of the Borrower to repay the unpaid
principal amount of the Term Loans made by each Bank, together with interest
thereon, shall be evidenced by the Term Notes payable to the order of each Bank
in an aggregate face amount equal to the Term Loan of such Bank. The principal
amount of the Term Loans shall be payable as follows:
Repayment Date Term Loan a Term Loan B Term Loan C
-------------- ----------- ----------- -----------
June 30, 1999 $ 1,500,000 $ 200,000 $ 50,000
September 30, 1999 3,100,000 200,000 50,000
December 31, 1999 3,100,000 200,000 50,000
March 31, 2000 3,100,000 150,000 37,500
June 30, 2000 3,300,000 150,000 37,500
September 30, 2000 3,300,000 150,000 37,500
December 31, 2000 3,300,000 150,000 37,500
March 31, 2001 3,750,000 150,000 37,500
June 30, 2001 3,750,000 150,000 37,500
September 30, 2001 3,900,000 150,000 37,500
December 31, 2001 3,900,000 150,000 37,500
March 31, 2002 4,500,000 150,000 37,500
June 30, 2002 4,500,000 150,000 37,500
September 30, 2002 4,500,000 150,000 37,500
December 31, 2002 4,500,000 150,000 37,500
March 31, 2003 4,500,000 150,000 37,500
June 30, 2003 4,500,000 150,000 37,500
September 30, 2003 4,500,000 150,000 37,500
December 31, 2003 4,500,000 150,000 37,500
March 31, 2004 0 13,500,000 37,500
June 30, 2004 0 13,500,000 37,500
September 30, 2004 0 13,500,000 37,500
December 31, 2004 0 14,500,000 37,500
March 31, 2005 0 0 3,525,000
June 30, 2005 0 0 3,525,000
September 30, 2005 0 0 3,525,000
December 31, 2005 0 0 3,525,000
---------------------- --------------------- ---------------------
$ 72,000,000 $ 58,000,000 $ 15,000,000
====================== ===================== =====================
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(d) Section 3.4 of the Original Credit Agreement is
hereby amended and restated as follows:
3.4 USE OF PROCEEDS.
The proceeds of the Term Loans made on the Closing
Date shall be used for the Specified Acquisitions, to
repay the Existing Bank Indebtedness and in
accordance with Section 8.1.11. [Use of Proceeds].
The proceeds of the Term Loans made on the Amendment
Closing Date shall be used to finance the Texel
Acquisition, to repay the Existing Texel Debt and in
accordance with Section 8.1.11. [Use of Proceeds].
7. AMENDMENT TO PROVISIONS REGARDING SALE OF DEBT OR EQUITIES.
The last sentence of Section 5.5.3 of the Original
Credit Agreement is amended and restated as follows:
"EXCLUDED ISSUANCE" shall mean the Orius Preferred
Stock issued to HIG on the Closing Date, common stock issued by Orius
in connection with the Specified Acquisitions, the Texel Acquisition or
any Permitted Acquisition, common stock issued by Orius in connection
with the conversion of the Orius Preferred Stock, sale of Orius common
stock in connection with the NATC Reorganization, and, additional
Series A Preferred Stock or Series B Preferred Stock of Orius issued
pursuant to payment in kind features of such stock, and, to the extent
such proceeds do not exceed $2,500,000 from the Closing Date to the
date of exercise, common stock of Orius issued in connection with the
exercise of employee stock options.
8. REPRESENTATIONS AND WARRANTIES. The Loan Parties (including
Texel), jointly and severally, hereby represent and warrant to the Agents and
each of the Banks as follows:
(a) Except as described in the Supplemental Schedules
attached hereto (the "Supplemental Schedules"), all representations,
warranties and covenants made by the Loan Parties to the Banks and the
Agents that are set forth in the Original Credit Agreement or any other
Loan Document are true and correct on and as of the date hereof with
the same effect as though such representations, warranties and
covenants had been made on and as of the date hereof (except
representations and warranties which expressly relate solely to an
earlier date and time, which representations and warranties were true
and correct on and as of the specific dates and times referred to
therein).
(b) No event or condition exists which, with the
giving of notice or the passage of time, or both, would constitute a
Potential Default or an Event of Default
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under any of the Loan Documents as amended or affirmed in connection
with this First Amendment and the other Amendment Documents.
(c) The Supplemental Schedules attached hereto and
Section 9 hereof set forth (i) all disclosure information with respect
to Texel called for under Article 6 of the Original Credit Agreement
(and, subject to disclosure in such Supplemental Schedules and Section
9 hereof, Texel is hereby deemed to make and give all representations
and warranties to the Agents and each of the Banks as set forth in
Section 6 of the Original Credit Agreement as amended hereby), and (ii)
all information with respect to the other Loan Parties which must be
amended or updated from the disclosure schedules to the Original Credit
Agreement in order to make the representations and warranties of such
Loan Parties true and correct on the date hereof (except
representations and warranties which expressly relate solely to an
earlier date and time, which representations and warranties were true
and correct on and as of the specific dates and times referred to
therein).
(d) The execution and delivery of this First
Amendment and the consummation of the transactions contemplated hereby
and by any other documents executed by the Loan Parties required to be
delivered to the Agent in connection with this First Amendment have
been duly and validly authorized by the Loan Parties and all such
documents together constitute the legal, valid and binding agreement of
the Loan Parties, enforceable against the Loan Parties in accordance
with their respective terms, except to the extent that enforceability
of any of such document may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforceability of creditors' rights generally or general equitable
principles.
9. AMENDMENT TO REPRESENTATIONS REGARDING FINANCIAL STATEMENTS
Section 6.1.9 of the Original Credit Agreement is
hereby amended and restated as follows:
(i) HISTORICAL STATEMENTS. The Borrower has
delivered to the Agents copies of financial statements of each
Subsidiary of the Borrower (including each Target and Texel),
all as described in SCHEDULE 6.1.9 attached hereto, including
audited financial statements of the Borrower and its
Subsidiaries for the period ended December 31, 1998 (the
"Annual Statements"), and (ii) unaudited interim combined
financial statements of Borrower and its Subsidiaries (and
each Target and Texel), including unaudited financial
statements of Borrower and its Subsidiaries for the three
month period ended March 31, 1999 as certified by an officer
of Borrower (the "Interim Statements") (the Annual and Interim
Statements being collectively referred to as the "Historical
Statements"). The Historical Statements were compiled from the
books and records maintained by each Loan Party's management,
and fairly represent the consolidated financial condition of
each Loan Party as of their dates and the results of
operations for the fiscal periods then ended and have been
prepared in accordance with GAAP
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consistently applied, subject (in the case of the Interim
Statements) to normal year-end audit adjustments and the lack
of footnotes.
(ii) FINANCIAL PROJECTIONS. The Borrower has
delivered to the Agents financial projections of the Borrower
and its subsidiaries, including the financial projections
related to the Specified Acquisitions and the Texel
Acquisition, for the period through December 31, 2005 derived
from various assumptions of the Borrower's management and pro
forma consolidated Historical Statements based on the
Historical Statements of the Borrower and its subsidiaries,
including those acquired in the Specified Acquisitions and the
Texel Acquisition (the "Financial Projections").
10. AMENDMENTS TO COVENANTS
(a) Section 8.1.11 of the Original Credit Agreement
is hereby amended and restated as follows:
8.1.11 USE OF PROCEEDS.
The Loan Parties will use the Letters of Credit and
the proceeds of the Loans only for (i) general
corporate purposes and for working capital, (ii) to
finance the Specified Acquisitions and the Texel
Acquisition, (iii) to repay the Existing Bank
Indebtedness and the Existing Texel Debt, (iv) to
finance Permitted Acquisitions. The Borrower may
reloan to NATC a portion of the proceeds of the Term
Loan sufficient to allow NATC to repay the Existing
Bank Indebtedness provided such loan is treated as an
intercompany loan on the books and records of the
parties and is not evidenced by a promissory note.
(b) Section 8.1.13 of the Original Credit Agreement
is hereby amended and restated as follows:
8.1.13 INTEREST RATE PROTECTION
Within thirty (30) calendar days of the Amendment
Closing Date, the Borrower shall enter into or have
entered into one or more Interest Rate Protection
Agreements with terms of not less than three years
from the Closing Date covering 50% of the principal
amount of the Term Loans, all in form and substance
acceptable to the Agents (collectively the "Interest
Rate Protection Agreement"). If one or more of the
Banks is a party to such Interest Rate Protection
Agreement, the Interest Rate Protection Agreement
shall be considered a Loan Document and such Bank(s)
shall be entitled to share in the security granted by
the Borrower hereunder and under the Loan Documents.
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(c) Section 8.2.6(vi) of the Original Credit
Agreement is hereby amended and restated as follows:
(i) the Borrower shall demonstrate (x)
compliance immediately prior to the consummation of
the proposed Permitted Acquisition with the covenants
contained in this Section 8.2 after giving pro forma
effect to such Permitted Acquisition, (y) that the
business which is the subject of the Permitted
Acquisition has had a positive Consolidated Cash Flow
from Operations for the four fiscal quarters
immediately preceding consummation of the Permitted
Acquisition, and (z) that following consummation, and
taking into account any Revolving Credit Loans to be
incurred in connection with such Permitted
Acquisition, Borrower will have at least $5,000,000
in unused borrowing availability in the Revolving
Credit Loans, such demonstrations to be set forth in
a certificate in form and substance acceptable to the
Agents, delivered to the Agents by Borrower at least
five (5) Business Days prior to such Permitted
Acquisition;
(d) Section 8.2.14 of the Original Credit Agreement
is hereby amended to add new subpart (ix):
(ix) Orius can issue common stock as
provided in the Texel Acquisition Agreement.
(e) Section 8.2.16 of the Original Credit Agreement
is hereby amended and restated as follows:
8.2.16 CAPITAL EXPENDITURES AND LEASES.
Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, (i) make any
payments in any fiscal year on account of the
purchase or lease of any assets which if purchased
would constitute fixed assets or which if leased
would constitute a capitalized lease which would
cause the aggregate of such payments by the Loan
Parties and their Subsidiaries in such fiscal year to
exceed $12,000,000, or (ii) any payments in any
fiscal year on account of the rental or lease of real
or personal property of any other Person under
operating leases (i.e. non-Capital Leases) which
would cause the aggregate of such payments by the
Loan Parties and their Subsidiaries in such fiscal
year to exceed $5,000,000. All such capital
expenditures and leases shall be made under usual and
customary terms and in the ordinary course of
business. Acquisition of capital assets as part of a
Permitted Acquisition or the Texel Acquisition shall
not be considered in calculating compliance with this
Section 8.2.16.
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(f) Section 8.2.17 of the Original Credit Agreement
is hereby amended and restated as follows:
8.2.17 MINIMUM FIXED CHARGE COVERAGE RATIO;
CALCULATION OF FINANCIAL COVENANTS FOR 1999-2000
The Loan Parties shall not permit the Fixed Charge
Coverage Ratio, calculated as of the end of each
fiscal quarter for the four fiscal quarters then
ended (with first measurement date as of June 30,
1999), to be less than 1.00 to 1 as of the end of any
fiscal quarter ending on or before December 31, 1999,
less than 1.05 to 1 as of the end of any fiscal
quarter ending after December 31, 1999, but on or
before December 31, 2001, less than 1.10 to 1 as of
the end of any fiscal quarter ended after December
31, 2001 but on or before December 31, 2002, or less
than 1.15 to 1 as of the end of any fiscal quarter
ending after December 31, 2002. For purposes of
calculating compliance with financial statement
covenants set forth in Sections 8.2.17, 8.2.18,
8.2.19 and 8.2.20 and the applicable Level set forth
on the Pricing Grid with respect to specified periods
ending in 1999 and 2000, the following shall apply:
Consolidated Cash Flow from Operations for periods
prior to June 30, 1999 shall be deemed to be as
follows:
Cash Flow from Operations
-------------------------
Calendar Quarter ended September 30, 1998 $12,775,000
Calendar Quarter ended December 31, 1998 $12,775,000
Calendar Quarter ended March 31, 1999 $12,775,000
For the fiscal quarter ended June 30, 1999,
Consolidated Cash Flow from Operations will be based
upon books and records of Orius and its Subsidiaries
for such quarter with, solely as to Texel,
adjustments of the type reflected in projections
prepared by PricewaterhouseCoopers with respect to
Texel and supplied by Borrower to the Agents.
As of the end of the fiscal quarter ended June 30,
1999, Fixed Charges and interest expense shall each
be determined (with appropriate proforma adjustments
as if Texel had been acquired by the Borrower on
March 1, 1999 and become a Loan Party on that date)
by multiplying the respective aggregate amounts for
the Loan Parties determined for the month of March
1999 and the second calendar quarter of 1999 (other
than, in the calculation of Fixed Charges, repayments
of principal required under Section 3.1 hereof) by 3
and, for purposes of determining Fixed Charges at
such date, adding to the sum determined in the
preceding clause
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repayments of principal required under Section 3.1
hereof to be made on June 30, 1999 multiplied by 4.
As of the end of the fiscal quarter ended September
30, 1999, Fixed Charges and interest expense shall
each be determined by multiplying the respective
aggregate amounts for the Loan Parties determined for
the month of June 1999 and the third calendar quarter
of 1999 (other than, in the calculation of Fixed
Charges, repayments of principal required under
Section 3.1 hereof) by 3 and, for purposes of
determining Fixed Charges at such date, adding to the
sum determined in the preceding clause repayments of
principal under Section 3.1 hereof required to be
made on June 30, 1999 and September 30, 1999
multiplied by 2.
As of the end of the fiscal year ended December 31,
1999, Fixed Charges and interest expense shall each
be determined by multiplying the aggregate amounts
for the Loan Parties for the last seven calendar
months of 1999 (other than, in the calculation of
Fixed Charges. repayments of principal required under
Section 3.1 hereof) by 1.714286 and, for purposes of
determining Fixed Charges at such date, adding to the
sum determined in the preceding clause repayments of
principal under Section 3.1 hereof required to be
made on June 30, 1999, September 30, 1999 and
December 31, 1999 multiplied by 1.3333333.
As of the end of the fiscal quarter ended March 30,
2000, Fixed Charges and interest expense shall each
be determined by multiplying the aggregate amounts
for the Loan Parties for the last seven calendar
months of 1999 and the first calendar quarter of 2000
(other than, in the calculation of Fixed Charges,
repayments of principal required under Section 3.1
hereof) by 1.2 and, for purposes of determining
Fixed Charges at such date, adding to the sum
determined in the preceding clause repayments of
principal under Section 3.1 hereof required to be
made on June 30, 1999, September 30, 1999, December
31, 1999 and March 30, 2000.
(g) Section 8.2.20 of the Original Credit Agreement
is hereby amended and restated as follows:
8.2.20 MINIMUM CONSOLIDATED CASH FLOW FROM
OPERATIONS.
The Loan Parties shall not, at any time, permit the
Consolidated Cash Flow from Operations of the
Borrower and its Subsidiaries calculated as of the
end of the four fiscal quarters then ended (with the
first measurement date as of June 30, 1999) to be
less than:
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14
Minimum Consolidated Cash Flow
Four Quarters Ended from Operations
--------------------------------------------------------------------------
June 30, 1999 $49,250,000
September 30, 1999 $47,250,000
December 31, 1999 $45,500,000
March 31, 2000 $45,500,000
June 30, 2000 $47,250,000
September 30, 2000 $49,000,000
December 31, 2000 $50,500,000
March 31, 2001 $52,000,000
June 30, 2001 $53,750,000
September 30,2001 $55,250,000
December 31, 2001 $56,750,000
March 31, 2002 $58,250,000
June 30, 2002 $59,750,000
September 30, 2002 $61,250,000
December 31, 2002 $62,750,000
March 31, 2003 $64,500,000
June 30, 2003 $66,000,000
September 30, 2003 $67,500,000
December 31, 2003 $69,000,000
March 31, 2004 $70,750,000
June 30, 2004 $72,500,000
September 30, 2004 $74,250,000
December 31, 2004 $76,000,000
March 31, 2005 $78,000,000
June 30, 2005 $79,750,000
September 30, 2005 $81,750,000
December 31, 2005 $83,750,000
11. AMENDMENT TO SECTION 10.15. Section 10.15 of the Original
Credit Agreement is amended and restated as follows:
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15
10.15 AGENTS' FEES.
The Borrower shall pay to the Agents the Fees (the
"Agents' Fees") under the terms of a letter dated
January 29, 1999 and a letter dated May 5, 1999 among
the Borrower, PNC Bank and Xxxxxxx Xxxxx, each as
amended from time to time (collectively, the "Fee
Letter").
12. EFFECTIVENESS. The effectiveness of this First Amendment
and the obligation of each Bank to make the extensions of credit contemplated
hereby are subject to the performance by each of the Loan Parties of its
Obligations to be performed hereunder and under the Original Credit Agreement at
or prior to the making of any such additional extensions of credit and to the
satisfaction of the following further conditions on or before the Amendment
Closing Date:
(a) AMENDMENT DOCUMENTS. Each of the Loan Parties, as
applicable, shall have executed and delivered to the Administrative
Agent for its benefit and the benefit of the Banks the Amendment
Documents to which each is a party (including an Amended and Restated
Term Note A for each Bank increasing its Term Loan A Commitment
hereunder and an Amended and Restated Term Note B for each Bank
increasing its Term Loan B Commitment hereunder), together with all
appropriate financing statements and appropriate stock powers and
certificates evidencing the capital stock of Texel, all pursuant to
documentation and on terms and conditions satisfactory to the Agents
and the Lenders.
(b) SATISFACTION OF CONDITIONS. All conditions to
making additional Loans as set forth in Section 7.2 of the Original
Credit Agreement shall have been satisfied, with the test of each such
condition being determined as if the amendments to the Original Credit
Agreement made hereby were in force and effect and after giving effect
to the Amendment Transactions and after giving effect to the extensions
of credit contemplated hereby.
(c) OFFICER'S CERTIFICATE. Each of the Loan Parties
shall deliver to the Administrative Agent a certificate in the form
described in Section 7.1.1 of the Original Credit Agreement, but for
purposes of such certificate the amendments to the Original Credit
Agreement made hereby shall be deemed to be in full force and effect
and the representations and warranties of the Loan Parties shall apply
both before and immediately after giving effect to the Amendment
Transactions and the extensions of credit contemplated hereby.
(d) SECRETARY'S CERTIFICATE. Each of the Loan Parties
(other than Texel) shall deliver to the Administrative Agent for the
benefit of the Banks a certificate dated as of the Amendment Closing
Date signed by the Secretary or Assistant Secretary of such Loan Party
certifying with respect to the Amendment Documents as described in
Sections 7.1.2(i) and 7.1.2(ii) of the Original Credit Agreement,
together with a good standing certificate from such Loan Party's state
of formation, and that no changes in such entities' articles, by-laws
or other organizational documents has occurred since the Closing Date.
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16
Texel shall deliver to the Administrative Agent for the benefit of the
Banks a certificate in the form described in Section 7.1.2 of the
Original Credit Agreement certifying with respect to matters as
described in Section 7.1.2 of the Original Credit Agreement, together
with certificates from the appropriate state officials as to the
continued existence and good standing of Texel in Virginia and each
state where it is qualified to do business.
(e) SOLVENCY CERTIFICATE. The Borrower shall have
delivered to the Agents a certificate from the Chief Financial Officer
or the Chief Executive Officer of Borrower in form and substance
satisfactory to the Agents with respect to the solvency (on a
consolidated basis) of the Borrower and, with respect to such officer's
certificate, each Loan Party, in each case both before and immediately
after giving effect to the Amendment Transactions and after giving
effect to the extensions of credit contemplated hereby.
(f) OPINION OF COUNSEL. There shall be delivered to
the Administrative Agent for the benefit of each Bank a written opinion
of Akerman Senterfitt & Xxxxxx, P.A., counsel for the Loan Parties (who
may rely on the opinions of such other counsel as may be acceptable to
the Agents), New York local counsel, Virginia local counsel and other
counsel acceptable to the Agents to Loan Parties which are not Florida
or New York corporations dated the Amendment Closing Date and in form
and substance satisfactory to the Agents and their counsel.
(g) LEGAL DETAILS. All legal details and proceedings
in connection with the transactions contemplated by the Amendment
Transactions, including this First Amendment and the other Amendment
Documents shall be in form and substance satisfactory to the Agents and
counsel for the Agents, and the Administrative Agent shall have
received all such other counterpart originals or certified or other
copies of such documents and proceedings in connection with such
transactions, in form and substance satisfactory to the Agents and said
counsel, as the Agents or said counsel may reasonably request.
(h) FEES AND EXPENSES. All accrued fees and expenses
(including the fees and expenses of Xxxxxxxxxxx & Xxxxxxxx LLP, Xxxxxx
Xxxxxx & Xxxxxxx and any local counsel to the Agents) of the Agents and
the Banks in connection with the Original Credit Agreement and
Amendment Documents and all fees specified in the Fee Letter shall have
been paid.
(i) CONSENTS. All material consents required to
effectuate the transactions contemplated hereby as set forth on
SCHEDULE 6.1.13 shall have been obtained.
(j) NO MATERIAL ADVERSE CHANGE. There shall not have
occurred a Material Adverse Change of Borrower or Texel, in each case
together with its subsidiaries taken as a whole, as the case may be
(and before and after giving effect to the Amendment Transactions)
since (x) with respect to Borrower, November 30, 1998, and (y) with
respect to Texel, December 31, 1998.
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17
(k) NO VIOLATION OF LAWS. The making of the
additional extensions of credit contemplated hereby and the
consummation of the Amendment Transactions shall not contravene any Law
applicable to any Loan Party or any of the Banks.
(l) NO ACTIONS OR PROCEEDINGS. No action, proceeding,
investigation, regulation or legislation shall have been instituted,
threatened or proposed before any court, governmental agency or
legislative body to enjoin, restrain or prohibit, or to obtain damages
in respect of, this Agreement, the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby or the
Amendment Transactions, that has or which have a reasonable likelihood
of restraining, preventing or imposing materially burdensome conditions
on any of the Amendment Transactions contemplated by the Original
Credit Agreement as amended by this First Amendment or any of the other
Loan Documents or Amendment Documents.
(m) INSURANCE POLICIES; CERTIFICATES OF INSURANCE;
ENDORSEMENTS. The Loan Parties shall have delivered evidence acceptable
to the Agents that adequate insurance in compliance with Section 8.1.3
[Maintenance of Insurance] of the Original Credit Agreement with
respect to each of the Loan Parties, including Texel, is in full force
and effect and that all premiums then due thereon have been paid,
together with a certified copy of each Loan Party's casualty insurance
policy or policies evidencing coverage satisfactory to the Agents, with
additional insured, mortgagee and lender loss payable special
endorsements attached thereto in form and substance satisfactory to the
Administrative Agent and its counsel naming the Administrative Agent,
as additional insured, mortgagee and lender loss payee.
(n) FILING CONFIRMATION. The Agents shall have
received (1) verbal confirmation of all filings with respect to any
recordation or filing necessary to perfect the Lien of the
Administrative Agent for its benefit and for the benefit of the Banks
on the Collateral or other satisfactory evidence of such recordation
and filing and (2) evidence in a form acceptable to the Agents that
such Lien constitutes a Prior Security Interest in favor of the
Administrative Agent for its benefit and for the benefit of the Banks.
(o) CONSUMMATION OF TEXEL ACQUISITION. All material
documentation, including without limitation, any tax sharing agreement,
employment agreement or other financing arrangement with respect to or
in connection with the Texel Acquisition shall be in form and substance
reasonably satisfactory to the Agents. In addition to the requirements
of Section 12(q) hereof, the Agents shall have received (i) evidence
satisfactory to them of the prior or simultaneous consummation of the
Texel Acquisition, (ii) letters from Texel's counsel in the Texel
Acquisition permitting the Agents and the Banks to rely upon its
opinion letter delivered to the Borrower in connection with the Texel
Acquisition, and (iii) from the Borrower a certificate signed by the
Chief Executive Officer or Chief Financial Officer of the Borrower
certifying that:
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(i) The consummation of the Texel
Acquisition have occurred or are occurring simultaneously with
the making of the additional extensions of credit contemplated
hereby;
(ii) The execution and delivery of the Texel
Acquisition documents, related agreements, and the
consummation of the Texel Acquisition, did not and will not
violate any statute or regulation of the United States or of
any state or other applicable jurisdiction, or any order,
judgment or decree of any court or governmental body, or
result in a breach of, or constitute a default under, any
agreement, indenture, order or decree affecting the Borrower
or Texel.
(iii) All of the representations and
warranties of the Borrower and, to the best of the knowledge
of the Borrower, the other parties to the Texel Acquisition
Agreement, contained in the Texel Acquisition Agreement are
true and correct in all material respects as of the date of
closing of the consummation of the Texel Acquisition; and
(iv) The consummation of the Texel
Acquisition complied in all respects with all applicable legal
requirements, and all necessary governmental, regulatory,
shareholder and other consents and approvals required for the
consummation of the Texel Acquisition were, prior to the
consummation thereof, duly obtained and in full force and
effect.
(p) LANDLORD'S WAIVER. The Loan Parties shall have
delivered an executed Landlord's Waiver from the lessor for each of the
leased locations described in Schedule 7.1.14.
(q) CONSUMMATION OF AMENDMENT TRANSACTIONS. The Board
of Directors or all of the shareholders of each Loan Party shall have
authorized and approved the Amendment Transactions, and the Agents
shall have received satisfactory evidence of the same. Each of the
Amendment Transactions (other than extensions of credit under the
Original Credit Agreement as amended by the First Amendment) shall have
been consummated in all material respects in accordance with the terms
hereof and the terms of documentation therefor (without the waiver or
amendment of any material condition unless consented to by the Agents
and the Banks) that are in form and substance reasonably satisfactory
to the Agents and the Banks (with any condition therein requiring the
satisfaction or consent of any person other than the Agents or the
Banks being deemed to require the satisfaction or consent of the Agents
and the Banks). Each of the parties thereto shall have complied in all
material respects with all covenants set forth in the Texel Acquisition
Agreement (without the waiver or amendment of any of the terms thereof
unless consented to by the Agents and the Banks).
(r) REFINANCINGS. All liens in respect of the
Existing Texel Debt (except such liens which constitute Permitted
Liens) shall have been released and the Agents shall have received
evidence thereof satisfactory to the Agents and "pay off"
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letters satisfactory to the Agents with respect to the Existing Texel
Debt (except any Existing Texel Debt which constitutes Permitted
Indebtedness).
(s) INDEBTEDNESS. After giving effect to Amendment
Transactions and the other transactions contemplated hereby, each Loan
Party and its Subsidiaries shall have outstanding no Indebtedness to
any person other than the Borrower or its Subsidiaries or preferred
stock (or direct or indirect guarantee or other credit support in
respect thereof) outstanding other than the Permitted Indebtedness and
preferred stock of Orius described on Schedule 6.1.2.
(t) PRO FORMA BALANCE SHEET/APPLICATION OF FUNDS. The
Agents and the Banks shall have received satisfactory evidence
(including satisfactory supporting schedules and other data) that after
giving effect on a pro forma basis to the Amendment Transactions in
compliance with Regulation S-X under the Securities Act of 1933 and
otherwise acceptable to the Agents and the Banks, Borrower is in
compliance with each covenant set forth in Section 8.2.16 through
8.2.20 inclusive, of the Original Credit Agreement, as amended hereby,
as of the end of the fiscal quarter most recently ended prior to the
Amendment Closing Date.
(u) LIEN SEARCH. The Agents and the Banks shall have
received the results of a recent lien, tax and judgment search in each
of the jurisdictions and offices where assets of Texel with a value of
$25,000 or more (excluding registered motor vehicles) are located or
recorded, and such search shall reveal no liens on any of their assets
except for liens permitted by the Loan Documents or liens to be
discharged in connection with the transactions contemplated hereby.
(v) FINANCIAL STATEMENTS. The Borrower shall have
delivered to the Agents and the Banks (i) audited financial statements
of Orius and its subsidiaries for the year ended December 31, 1998,
(ii) unaudited financial statements of Orius and its Subsidiaries for
the three months ended March 31, 1999, certified by an officer of
Orius, and (iii) a pro forma consolidated balance sheet of Orius and
its subsidiaries dated as of the date of the most recently available
financial statements after giving effect to the Amendment Transactions,
which balance sheet shall be consistent in all material respects with
the sources and uses and the forecast each previously provided to the
Agents and the Banks. The sources and uses to effect the Amendment
Transactions shall not differ in any material respect from those
previously provided to the Agents and the Banks. Borrower shall also
have provided such other financial information as the Bank or the
Agents may request in connection with the Amendment Transactions.
(w) NO VIOLATION OF LAW. No law or regulation shall
be applicable in the judgment of the Agents and the Banks that
restrains, prevents or imposes material adverse conditions upon any
component of the Amendment Transactions or the financing hereof,
including the additional extensions of credit contemplated hereby.
(x) INFORMATION. The Agents and the Banks shall have
received all material information from Texel concerning potential
environmental liabilities and
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compliance with environmental laws, and shall have received all Phase I
reports they shall have reasonably requested.
(y) The terms, conditions and structure of the Texel
Acquisition and the Texel Acquisition Agreement, including any
amendments thereto (and the documentation therefor) shall be in form
and substance satisfactory to the Agents in their respective sole
discretion. The Agents and the Lenders shall have received copies,
certified by Borrower, of all filings made with any governmental
authority in connection with the Amendment Transactions.
(z) CONTINGENT AND OTHER LIABILITIES. The Agents and
the Banks shall be satisfied as to the amount and nature of all tax,
ERISA, employee retirement benefit, and other contingent liabilities to
which Texel may be subject, and the plans of Texel with respect
thereto.
(aa) STRUCTURE AND ORGANIZATION. The Agents and the
Banks shall be satisfied (in their reasonable judgment) with the
proposed and actual capitalization and corporate and organizational
structure of each Loan Party and its Subsidiaries (after giving effect
to the Amendment Transactions), including as to direct and indirect
ownership and as to the terms of the indebtedness and capital stock of
each Loan Party and its Subsidiaries.
(bb) DUE DILIGENCE REPORTS. The Agents and the Banks
shall have received final preacquisition reports of
PricewaterhouseCoopers LLP with respect to Texel that are satisfactory
to them in all respects and not different in any material respect from
the draft preacquisition reports provided prior to May 5, 1999.
(cc) BUSINESS PLAN. The Agents and the Banks shall
have received a reasonably satisfactory business plan or budget for
Borrower and its Subsidiaries after giving effect to the Amendment
Transactions for the 1999 fiscal year.
(dd) YEAR 2000. The Agents and the Banks shall be
satisfied (in their reasonable judgment) with all arrangements and
preparations by Texel with respect to the Year 2000 issue.
13. COUNTERPARTS. This First Amendment may be executed in one
or more counterparts by any party hereto in separate counterparts, each of which
when so executed and delivered to the other party shall be deemed an original.
All such counterparts together shall constitute one and the same instrument.
14. WAIVERS. This First Amendment shall not, except as
expressly set forth above, serve to waive, supplement or amend the Original
Credit Agreement, which Original Credit Agreement shall remain in full force and
effect as amended hereby.
15. GOVERNING LAW. This First Amendment shall be deemed to be
a contract under the Laws of the State of New York and for all purposes shall be
governed by and construed
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21
and enforced in accordance with the internal laws of the State of New York
without regard to its conflict of laws principles.
-21-
22
IN WITNESS WHEREOF, the parties hereto have executed and delivered this First
Amendment as of the date and year first above written.
BORROWER:
ATTEST: NATG HOLDINGS, LLC
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
GUARANTORS:
ATTEST: ORIUS CORP.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
NORTH AMERICAN TEL-COM GROUP, INC.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
MICH-COM CABLE SERVICES INCORPORATED
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
CABLEMASTERS CORP.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
CHANNEL COMMUNICATIONS, INC.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
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23
ATTEST: EXCEL CABLE CONSTRUCTION, INC.
By:
----------------------------------- ---------------------------
Title:
-------------------------
ATTEST: U.S. CABLE, INC.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
ATTEST: CATV SUBSCRIBER SERVICES, INC.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
ATTEST: STATE WIDE CATV, INC.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
ATTEST: BURN-TECHS, INC.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
ATTEST: DAS-CO of Idaho, Inc.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
ATTEST: XXXXXX UNDERGROUND CABLE, INC.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
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24
ATTEST: NETWORK CABLING SERVICES, INC.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
ATTEST: COPENHAGEN UTILITIES &
CONSTRUCTION, INC.
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
ATTEST: TEXEL CORPORATION
By:
----------------------------------- ---------------------------
Title:
-------------------------
[Seal]
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PNC BANK, NATIONAL ASSOCIATION,
as a Bank and as Administrative Agent
By:
---------------------------
Title:
-------------------------
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED,
as Syndication Agent
By:
---------------------------
Title:
-------------------------
XXXXXXX XXXXX CAPITAL
CORPORATION, as a Bank
By:
---------------------------
Title:
-------------------------
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