EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
AND
CONSENT AND WAIVER
This FIRST AMENDMENT TO CREDIT AGREEMENT AND CONSENT AND WAIVER (this
"Amendment") is entered into as of April 8, 1999 among DAVEL FINANCING COMPANY,
L.L.C., a Delaware limited liability company (the "Borrower"); DAVEL
COMMUNICATIONS, INC., a Delaware corporation (the "Parent") and the Domestic
Subsidiaries of the Borrower and the Parent as Guarantors, the Lenders party
hereto and NATIONSBANK, N.A., as Administrative Agent for the Lenders (the
"Administrative Agent"). Capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Credit Agreement (as defined below).
RECITALS
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WHEREAS, the Borrower, the Guarantors, the Lenders, the Administrative
Agent, BancBoston Xxxxxxxxx Xxxxxxxx, Inc., as Syndication Agent and The Chase
Manhattan Bank, as Documentation Agent entered into that certain Credit
Agreement, dated as of December 23, 1998 (as it may be amended or modified from
time to time, the "Credit Agreement");
WHEREAS, the Borrower has informed the Lenders that it anticipates being
unable to meet certain financial covenants in the future;
WHEREAS, the Borrower has requested that the Lenders amend and/or waive
certain terms and provisions of the Credit Agreement, including, without
limitation, the financial covenants;
WHEREAS, the Borrower has requested that the Lenders consent to certain
actions it has taken or may take in the future; and
WHEREAS, the Lenders have agreed to do so, on the terms and subject to the
conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
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1. Waivers.
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Subject to the conditions set forth herein, the Lenders hereby agree as
follows:
(a) The Lenders waive compliance, for the fiscal quarter ending March
31, 1999, with the financial covenants set forth in Section 7.2(a), (b) and
(c) of the Credit Agreement.
(b) The Lenders waive any Event of Default that exists as a result of
the Credit Parties acquisition of the assets of (i) Vend Lease Company,
Inc. for an aggregate purchase price of $2,698,087 pursuant to an asset
purchase agreement dated as of January 20, 1999 and (ii) Reliable
Payphones, Inc. for an aggregate purchase price of $2,502,716 pursuant to
an asset purchase agreement dated as of March 3, 1999; provided, however,
it is understood and agreed that the cash portion of the aggregate purchase
price for each such asset acquisition shall decrease the applicable cash
consideration limit contained in clause (h) of the definition of Permitted
Acquisitions set forth in Section 1.1 of the Credit Agreement.
(c) The Lenders waive the requirement set forth in Section 7.1(a) of
the Credit Agreement with respect to delivery of the annual financial
statements of the Credit Parties and their Subsidiaries for the fiscal year
ending December 31, 1998 within 90 days of the end of such fiscal year;
provided that such annual financial statements shall be delivered no later
than April 15, 1999. Failure to deliver such annual financial statements on
or before April 15, 1999 shall constitute an Event of Default.
Each of the above waivers are one-time waivers and shall not (i) be
construed to be a waiver of any other term or provision of the Credit Documents
or any other Default or Event of Default that may exist or (ii) be deemed to be
an agreement to waive future compliance with the terms of the Credit Documents
or waive any Default or Event of Default that may occur in the future.
2. Amendments.
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(a) Applicable Percentage. The definition of "Applicable Percentage"
set forth in Section 1.1 of the Credit Agreement is amended by adding a new
paragraph at the end of such definition to read as follows:
Notwithstanding anything in this definition to the contrary, for the
period between April 1, 1999 and June 30, 2000, the Applicable Percentages
for Eurodollar Loans (Revolving Loans and Term Loans) at each Pricing Level
set forth above, shall be .25% higher than the Applicable Percentages shown
in the pricing grid set forth above.
(b) Dial-Around Receivables. The Credit Agreement is amended by
adding the following definition to Section 1.1 of the Credit Agreement to
read as follows:
"Dial-Around Receivables" means those certain accounts receivable (in
the approximate aggregate amount of $7,000,000) owing to the Credit Parties
from long distance carriers in connection with the dial-around calls made
from November 1996 through October 1997.
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(c) Permitted Acquisitions. Clause (h) of the definition of
Permitted Acquisitions in the Credit Agreement is amended and restated in
its entirety to read as follows:
(h) the cash consideration for (i) all such Acquisitions during the
period from January 1, 1999 to June 30, 2000, shall not exceed $6,000,000
in the aggregate and (ii) all such Acquisitions during any twelve month
period beginning on or after July 1, 2000, shall not exceed $15,000,000
individually and $30,000,000 in the aggregate.
(d) Mandatory Prepayments. Section 3.3(b)(iii) of the Credit
Agreement is amended and restated in its entirety to read as follows:
(iii) Asset Sales. Immediately upon receipt by a Credit Party or any
of its Subsidiaries of proceeds from (A) any Asset Disposition or (B) the
collection of any of the Dial-Around Receivables, the Borrower shall
forward an amount equal to 100% of the Net Cash Proceeds of such Asset
Disposition or such collection of Dial-Around Receivables to the Lenders as
a prepayment of the Loans (to be applied as set forth in Section 3.3(c)
below).
(e) Conditions to Borrowing. A new clause (e) is added to Section
5.2 to the Credit Agreement to read as follows:
(e) Required Lenders Consent. During the period from April 1, 1999
to June 30, 2000, if after giving effect to the making of a Loan (and the
application of the proceeds thereof) or to the issuance of a Letter of
Credit, as the case may be, the sum of the Revolving Loans outstanding plus
LOC Obligations outstanding exceeds $50,000,000, the Lenders shall not be
obligated to make the Loan nor shall the Issuing Lender be required to
issue a Letter of Credit unless the Required Lenders consent to the making
of such Loan or the issuance of such Letter of Credit.
(f) Information Covenants. A new clause (l) is added to Section 7.1
of the Credit Agreement to read as follows:
(l) Within 30 days after the end of each month (beginning with March
1999), the Borrower shall provide to the Lenders a report showing the total
coin volume and the individual coin volume by phone for the prior month,
together with a comparison of such total coin volume and individual coin
volume for the same month during the prior fiscal year, in each case in a
form reasonably acceptable to the Administrative Agent.
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(g) Financial Covenants. Section 7.2 of the Credit Agreement is
amended and restated in its entirety to read as follows:
7.2 Financial Covenants.
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(a) Leverage Ratio. The Leverage Ratio, as of the last day of each
fiscal quarter of the Borrower, shall be less than or equal to the ratio
shown below for the period corresponding thereto:
Period Ratio
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April 1, 1999 through June 30, 1999 7.75 to 1.0
July 1, 1999 through September 30, 1999 6.75 to 1.0
October 1, 1999 through December 31, 1999 5.75 to 1.0
January 1, 2000 through March 31, 2000 4.75 to 1.0
April 1, 2000 through June 30, 2000 4.25 to 1.0
July 1, 2000 and thereafter 3.50 to 1.0
(b) Interest Coverage Ratio. The Interest Coverage Ratio, for the
twelve month period ending on the last day of each fiscal quarter of the
Borrower, shall be greater than or equal to the ratio shown below for the
period corresponding thereto:
Period Ratio
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April 1, 1999 through June 30, 1999 1.20 to 1.0
July 1, 1999 through September 30, 1999 1.30 to 1.0
October 1, 1999 through December 31, 1999 1.60 to 1.0
January 1, 2000 through March 31, 2000 2.00 to 1.0
April 1, 2000 through June 30, 2000 2.25 to 1.0
July 1, 2000 through September 30, 2000 3.25 to 1.0
October 1, 2000 through December 31, 2000 3.50 to 1.0
January 1, 2001 through December 31, 2001 3.75 to 1.0
January 1, 2002 and thereafter 4.00 to 1.0
(c) Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio,
for the twelve month period ending on the last day of each fiscal quarter
of the Borrower, shall be greater than or equal to the ratio shown below
for the period corresponding thereto:
Period Ratio
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April 1, 1999 to June 30, 1999 .50 to 1.0
July 1, 1999 to September 30, 1999 .65 to 1.0
October 1, 1999 to December 31, 1999 .80 to 1.0
January 1, 2000 to March 31, 2000 1.05 to 1.0
April 1, 2000 and thereafter 1.10 to 1.0
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(h) Capital Expenditures. Section 8.14 of the Credit Agreement is
amended and restated in its entirety to read as follows:
Section 8.14 Capital Expenditures.
The Credit Parties will not permit Capital Expenditures (a) for the
fiscal year ending December 31, 1999 to exceed, in the aggregate,
$11,000,000, (b) for the fiscal year ending December 31, 2000 to exceed, in
the aggregate, $13,000,000 and (c) for any fiscal year thereafter to
exceed, in the aggregate, $20,000,000 plus, in any year, up to $5,000,000
of any amounts permitted to be but not used for Capital Expenditures during
the most recent fiscal year.
3. Consent. Notwithstanding anything in the Credit Documents to the contrary,
including Section 8.8 of the Credit Agreement, the Lenders hereby consent to a
one time payment, not to exceed $110,000, to holders of preferred share purchase
rights of the Parent in connection with the redemption of a rights plan.
4. Conditions Precedent. The effectiveness of this Amendment is subject to
receipt by the Administrative Agent of the following:
(a) copies of this Amendment duly executed by the Credit Parties and
the Required Lenders;
(b) certified copies of resolutions or authorization of each Credit
Party approving and adopting this Amendment, the transactions contemplated
herein and authorizing execution and delivery hereof; and
(c) an opinion or opinions from counsel to the Credit Parties, in
form and substance satisfactory to the Administrative Agent, addressed to
the Administrative Agent on behalf of the Lenders and dated as of the date
hereof.
5. Amendment Fee. The Borrower agrees to pay, on or before April 12, 1999, to
the Administrative Agent for the account of each Lender that executes this
Amendment on or before April 12, 1999, a fee equal to the product of each such
Lender's Commitment multiplied by .35%; provided, however, the Borrower shall
have no obligation to pay any such fee until this Amendment has been approved by
the Required Lenders.
6. Good Standing Certificates. Within 30 days after the date hereof, the
Borrower shall deliver to the Adminstrative Agent copies of certificates of good
standing, existence or their equivalent with respect to each Credit Party
certified as of a recent date by the appropriate Governmental Authorities of the
state or other jurisdiction of such Credit Party's formation.
5
7. Ratification of Credit Agreement. The term "Credit Agreement" as used in
each of the Credit Documents shall hereafter mean the Credit Agreement as
amended and modified by this Amendment. Except as herein specifically agreed,
the Credit Agreement, as amended by this Amendment, is hereby ratified and
confirmed and shall remain in full force and effect according to its terms,
including, without limitation, the liens granted pursuant to the Collateral
Documents.
8. Authority/Enforceability. Each of the Credit Parties, the Administrative
Agent and the Lenders represents and warrants as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such
Person and constitutes such Person's legal, valid and binding obligations,
enforceable in accordance with its terms, except as such enforceability may
be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors'
rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in
equity).
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority or
third party is required in connection with the execution, delivery or
performance by such Person of this Amendment.
9. No Default. The Credit Parties represent and warrant to the Lenders that
(a) the representations and warranties of the Credit Parties set forth in
Section 6 of the Credit Agreement (as amended by this Amendment) are true and
correct in all material respects as of the date hereof, (b) after giving effect
to this Amendment, no event has occurred and is continuing which constitutes a
Default or an Event of Default and (c) that they have no claims, counterclaims,
offsets, credits (other than any credit for overpayment of interest or fees
under the Credit Documents of which the Credit Parties have no knowledge as of
the date hereof (each an "Overpayment Credit")) or defenses to their obligations
under the Credit Documents or to the extent they have any they (other than any
Overpayment Credit) are hereby released in consideration of the Lenders entering
into this Amendment.
10. Counterparts/Telecopy. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of
executed counterparts of this Amendment by telecopy shall be effective as an
original and shall constitute a representation that an original shall be
delivered.
11. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered and this Amendment shall be
effective as of the date first above written.
BORROWER:
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DAVEL FINANCING COMPANY, L.L.C.,
a Delaware limited liability company
By: DAVEL COMMUNICATIONS, INC.,
its sole managing member
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
PARENT GUARANTOR: DAVEL COMMUNICATIONS, INC.,
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a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
SUBSIDIARY GUARANTORS: DAVEL COMMUNICATIONS GROUP, INC.,
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an Illinois corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New York corporation
PEOPLES TELEPHONE COMPANY, INC.,
a New Hampshire corporation
PEOPLES COLLECTORS, INC.,
a Delaware corporation
PTC CELLULAR, INC.,
a Delaware corporation
PTC SECURITY SYSTEMS, INC.,
a Florida corporation
TELINK TELEPHONE SYSTEMS, INC.,
a Georgia corporation
SILVERADO COMMUNICATIONS CORP.,
a Colorado corporation
PEOPLES ACQUISITION CORP.,
a Pennsylvania corporation
TELALEASING ENTERPRISES, INC.,
an Illinois corporation
ADTEC COMMUNICATIONS, INC.,
a Florida corporation
INTERSTATE COMMUNICATIONS, INC.,
a Georgia corporation
T.R.C.A., INC.,
an Illinois corporation
DAVELTEL, INC.,
an Illinois corporation
DAVEL MEXICO, LTD.,
an Illinois corporation
COMMUNICATIONS CENTRAL INC.,
a Georgia corporation
CENTRAL PAYPHONE SERVICES, INC.,
a Georgia corporation
COMMUNICATIONS CENTRAL
OF GEORGIA, INC.,
a Georgia corporation
INVISION TELECOM, INC.,
a Georgia corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Treasurer of each of the
above-referenced Subsidiary Guarantors
LENDERS:
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NATIONSBANK, N.A.,
individually in its capacity as a Lender, in its
capacity as the Administrative Agent and Collateral
Agent, and in its capacity as the Issuing Lender
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Managing Director
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C.
CREDIT AGREEMENT AND CONSENT AND WAIVER
BANKBOSTON, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C.
CREDIT AGREEMENT AND CONSENT AND WAIVER
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C.
CREDIT AGREEMENT AND CONSENT AND WAIVER
PARIBAS
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Managing Director
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By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C.
CREDIT AGREEMENT AND CONSENT AND WAIVER
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C.
CREDIT AGREEMENT AND CONSENT AND WAIVER
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C.
CREDIT AGREEMENT AND CONSENT AND WAIVER
FLEET BANK, N.A.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C.
CREDIT AGREEMENT AND CONSENT AND WAIVER
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C.
CREDIT AGREEMENT AND CONSENT AND WAIVER
LASALLE NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: First Vice President-Leveraged Finance
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C.
CREDIT AGREEMENT AND CONSENT AND WAIVER
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C
CREDIT AGREEMENT AND CONSENT AND WAIVER
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President, Manager
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Senior Relationship Manager
SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C
CREDIT AGREEMENT AND CONSENT AND WAIVER
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C.
CREDIT AGREEMENT AND CONSENT AND WAIVER
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Authorized Signatory
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By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
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Title: Authorized Signatory
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C
CREDIT AGREEMENT AND CONSENT AND WAIVER
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C
CREDIT AGREEMENT AND CONSENT AND WAIVER
KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Authorized Agent
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C
CREDIT AGREEMENT AND CONSENT AND WAIVER
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management Company, Inc.
its Managing Member
By: /s/ Xxxxxxxxx X. XxXxxxxxx
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Name: Xxxxxxxxx X. XxXxxxxxx
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Title: Principal
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CYPRESSTREE INSTITUTIONAL FUND, LLC
By: CypressTree Investment Management Company, Inc.
its Managing Member
By: /s/ Xxxxxxxxx X. XxXxxxxxx
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Name: Xxxxxxxxx X. XxXxxxxxx
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Title: Principal
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NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management Company, Inc.
as Portfolio Manager
By: /s/ Xxxxxxxxx X. XxXxxxxxx
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Name: Xxxxxxxxx X. XxXxxxxxx
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Title: Principal
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C
CREDIT AGREEMENT AND CONSENT AND WAIVER
XXXXX XXXXX SENIOR INCOME TRUST
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ Xxxxx X. Page
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Name: Xxxxx X. Page
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C
CREDIT AGREEMENT AND CONSENT AND WAIVER
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By: /s/ Xxxxx X. Page
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Name: Xxxxx X. Page
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C
CREDIT AGREEMENT AND CONSENT AND WAIVER
OXFORD STRATEGIC INCOME FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ Xxxxx X. Page
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Name: Xxxxx X. Page
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Title: Vice President
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C
CREDIT AGREEMENT AND CONSENT AND WAIVER
XXX XXXXXX SENIOR FLOATING RATE FUND
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President & Director
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SIGNATURE PAGE TO FIRST AMENDMENT TO DAVEL FINANCING COMPANY, L.L.C
CREDIT AGREEMENT AND CONSENT AND WAIVER
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By:
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Name:
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Title:
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By:
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Name:
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Title:
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