AMENDMENT NO. 4 TO THE
CREDIT AGREEMENT
Dated as of April 28, 2000
AMENDMENT NO. 4 TO THE CREDIT AGREEMENT among Telespectrum Worldwide,
Inc., a Delaware corporation (the "BORROWER"), the banks, financial institutions
and other institutional lenders parties to the Credit Agreement referred to
below (collectively, the "LENDERS"), Banque Nationale de Paris, as collateral
agent (the "AGENT") and Bank of America, N.A., as administrative agent (the
"ADMINISTRATIVE AGENT") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Agent and the Administrative Agent
have entered into a Credit Agreement dated as of June 30, 1999 ( as amended,
supplemented or otherwise modified through the date hereof, the "CREDIT
AGREEMENT"). Capitalized terms not otherwise defined in this Amendment have the
same meanings as specified in the Credit Agreement.
(2) The Borrower, the Required Lenders and all the Revolving Credit
Lenders (as defined below) have agreed to amend the Credit Agreement as
hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
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effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended as follows:
(a) The following definitions in Section 1.01 are hereby amended as
follows:
(i) in the definition of "ADVANCE" add "a Term D Advance, a
Revolving Credit Advance," after "a Term C Advance,";
(ii) in the definition of "APPLICABLE MARGIN" (A) add "or Term D
Facility" after "Term A Facility", and (B) add "or Revolving Credit
Facility" after "Working Capital Facility";
(iii) in the definition of "APPROPRIATE LENDER" add ", Term D
Facility, Revolving Credit Facility" after "Term C Facility";
(iv) in the definition of "BORROWING" add "a Term D Borrowing, a
Revolving Credit Borrowing," after "Term C Borrowing,";
(v) in the definition of "COMMITMENT" add "a Term D Commitment, a
Revolving Credit Commitment," after "Term C Commitment,";
(vi) in the definition of "FACILITY" add "a Term D Facility, a
Revolving Credit Facility," after "Term C Facility,";
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(vii) in the definition of "LEVERAGE RATIO" add "and Revolving
Credit Advances" in each place after "Working Capital Advances";
(viii) in the definition of "NOTE" add ", a Term D Note, a
Revolving Credit Note" after "Term C Note";
(ix) the definition of "PRO RATA SHARE" is amended in full to
read as follows:
""PRO RATA SHARE" of any amount means, with respect to any
Revolving Credit Lender, Working Capital Lender, Term A Lender, Term B
Lender, Term C Lender or Term D Lender at any time, the product of
such amount times a fraction the numerator of which is the amount of
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such Revolving Credit Lender's Revolving Credit Commitment, the
Working Capital Lender's Working Capital Commitment, the Term A
Lender's Term A Commitment, the Term B Lender's Term B Commitment, the
Term C Lender's Term C Commitment or the Term D Lender's Term D
Commitment at such time and the denominator of which is the Revolving
Credit Facility, the Working Capital Facility, the Term A Facility,
the Term B Facility, the Term C Facility or the Term D Facility,
respectively, at such time.";
(x) in the definition of "REQUIRED LENDERS", subsection (c) is
amended in full to read as follows:
"(c) the aggregate unused Commitments under the Term A Facility,
the Term B Facility, the Term C Facility, the Term D Facility and the
Revolving Credit Facility";
(xi) the definition of "TERM ADVANCE" is amended in full to read
as follows:
""TERM ADVANCE" means a Term A Advance, a Term B Advance, a Term
C Advance or a Term D Advance.";
(xii) the definition of "TERM COMMITMENT" is amended in full to
read as follows:
""TERM COMMITMENT" means a Term A Commitment, a Term B
Commitment, a Term C Commitment or a Term D Commitment.";
(xiii) the definition of "TERM LENDER" is amended in full to
read as follows:
""TERM LENDER" means a Term A Lender, a Term B Lender, a Term C
Lender or a Term D Lender.";
(xiv) in the definition of "TERMINATION DATE" add "the Term D
Facility, the Revolving Credit Facility," after "Term A Facility,".
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(b) Add the following new definitions in the appropriate alphabetical
order in Section 1.01:
"REVOLVING CREDIT ADVANCE" has the meaning specified in Section
2.01(g).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any
Revolving Credit Lender at any time, the amount set forth opposite
such Lender's name on Schedule I hereto under the caption "Revolving
Credit Commitment" or, if such Lender has entered into one or more
Assignment and Acceptances, set forth for such Lender in the Register
maintained by the Agent pursuant to Section 8.07(d) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments
at such time.
"REVOLVING CREDIT LENDER" means any Lender that has a Revolving
Credit Commitment.
"REVOLVING CREDIT NOTE" means a promissory note of the Borrower
payable to the order of any Revolving Credit Lender, in substantially
the form of Exhibit A-5 hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from the Working Capital
Advances made by such Lender to the extent required to be issued
pursuant to Section 2.15.
"TERM D ADVANCE" has the meaning specified in Section 2.01(h).
"TERM D BORROWING" means a borrowing consisting of simultaneous
Term D Advances of the same Type made by the Term D Lenders.
"TERM D COMMITMENT" means, with respect to any Term D Lender, the
amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Term D Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, the aggregate set forth
for such Lender in the Register maintained by the Agent pursuant to
Section 8.07(d) as such Lender's "Term D Commitment".
"TERM D FACILITY" means, at any time, the aggregate amount of the
Term D Lenders' Term D Commitments at such time.
"TERM D LENDER" means any Lender that has a Term D Commitment.
"TERM D NOTE" means a promissory note of the Borrower payable to
the order of any Term D Lender, in substantially the form of Exhibit
A-6 hereto,
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evidencing the indebtedness of the Borrower to such Lender resulting
from the Term D Advance made by such Lender to the extent required to
be issued pursuant to Section 2.15.
"TERM FACILITIES" means the Term A Facility, the Term B Facility,
the Term C Facility or the Term D Facility.
(c) A new Section 2.01(g) is added as follows:
"(g) The Revolving Credit Advances. Each Revolving
Credit Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances (each a "REVOLVING CREDIT
ADVANCE") to the Borrower from time to time on any Business Day during
the period from the date hereof until the Termination Date in an
amount for each such Advance not to exceed such Lender's unused
Revolving Credit Commitment at such time. Each Revolving Credit
Borrowing shall be in an aggregate amount of $500,000 or an integral
multiple of $100,000 in excess thereof and shall consist of Revolving
Credit Advances made simultaneously by the Revolving Credit Lenders
ratably according to their Revolving Credit Commitments. Within the
limits of each Revolving Credit Lender's unused Revolving Credit
Commitment in effect from time to time, the Borrower may borrow under
this Section 2.01(g), prepay pursuant to Section 2.06(a) and reborrow
under this Section 2.01(g)."
(d) A new Section 2.01(h) is added as follows:
"(h) The Term D Advances. Each Term D Lender severally
agrees, on the terms and conditions hereinafter set forth, to make a
single advance (a "TERM D ADVANCE") to the Borrower on the Business
Day that the conditions to effectiveness of Amendment No. 4 to this
Agreement have been met in an amount not to exceed such Lender's Term
D Commitment at such time; provided, that the proceeds thereof shall
immediately be applied to repay Advances under the Working Capital
Facility. The Term D Borrowing shall consist of Term D Advances made
simultaneously by the Term D Lenders ratably according to their Term D
Commitments. Amounts borrowed under this Section 2.01(h) and repaid or
prepaid may not be reborrowed."
(e) Section 2.02(c)(ii) is amended by adding ", the Term C Advances,
the Term D Advances, the Revolving Credit Advances" after "the Term B
Advances".
(f) Section 2.04(a) is amended by:
(i) adding "and Term D Lenders" after "Term C Lenders";
(ii) adding, in each case, "and Term D Advances" after "Term C
Advances";
(iii) adding a new column to read in full as follows:
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"Date Term D Loan
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June 30, 2000 375,000
September 30, 2000 375,000
December 31, 2000 375,000
March 31, 2001 468,750
June 30, 2001 468,750
September 30, 2001 468,750
December 31, 2001 468,750"; and
(iv) adding "and Term D Facility" after "Term C Facility".
(g) A new Section 2.04(e) is added as follows:
"(e) Revolving Credit Advances. The Borrower shall repay
to the Agent for the ratable account of the Revolving Credit Lenders
on the Termination Date the aggregate outstanding principal amount of
the Revolving Credit Advances then outstanding."
(h) A new Section 2.04(f) is added as follows:
"(f) Term D Advances. The Borrower shall repay to the
Agent for the ratable account of the Term D Lenders on the
Termination Date the aggregate outstanding principal amount of the
Term D Advances then outstanding."
(i) Section 2.05(a) is amended by adding "the Term D Commitments, the
Revolving Credit Commitments," after "the Term C Commitments,".
(j) A new Section 2.05(b)(vi) is added as follows:
"(vi) The Revolving Credit Facility shall be
automatically and permanently reduced on each date on which prepayment
thereof is required to be made pursuant to Section 2.06(b)(i) or (ii)
in an amount equal to amount remaining (if any) after the prepayment
in full of Revolving Credit Advances. "
(k) A new Section 2.05(b)(vii) is added as follows:
"(vii) On the date of the Term D Borrowing, after giving effect
to such Term D Borrowing, and from time to time thereafter upon each
repayment or prepayment of the Term D Advances, the aggregate Term D
Commitments of the Term D Lenders shall be automatically and
permanently reduced, on a pro rata basis, by an amount equal to the
amount by which the aggregate Term D Commitments immediately prior to
such reduction exceed the aggregate unpaid principal amount of the
Term D Advances then outstanding."
(l) Section 2.06(a) is amended by adding "or Revolving Credit Advance"
after "Working Capital Advance".
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(m) Sections 2.06(b)(i) and 2.06(b)(ii) are each amended by adding at
the end of the clause beginning with the word "second" the following "and
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the Revolving Credit Facility as set forth in clause (viii) below".
(n) Section 2.06(b)(iii) is amended in full as follows:
"(iii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of Revolving Credit Advances comprising
part of the same Borrowings or, if none are then outstanding, the
Working Capital Advances comprising part of the same Borrowings, the
Swing Line Advances and the Letter of Credit Advances equal to the
amount by which (A) the sum of the aggregate principal amount of (x)
the Working Capital Advances and Revolving Credit Advances, (y) the
Swing Line Advances and (z) the Letter of Credit Advances then
outstanding plus the aggregate Available Amount of all Letters of
Credit then outstanding exceeds (B) the lesser of (1) the sum of the
Working Capital Facility and the Revolving Credit Facility and (2) the
Loan Value of Eligible Receivables on such Business Day (as determined
based on the most recent Borrowing Base Certificate delivered to the
Lender Parties hereunder)."
(o) A new Section 2.06(b)(viii) is added as follows:
"(viii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of Revolving Credit Advances comprising
part of the same Borrowings equal to the amount by which Revolving
Credit Advances exceed $1,000,000 if such amount, or any greater
amount, is available to be drawn under the Working Capital Facility."
(p) Section 2.06(c) is amended in full as follows:
"(c) Term B, Term C and Term D Opt-out. With respect to any
---------------------------------
prepayment of the Term Advances, the Agent shall ratably pay the Term
A Lenders, the Term B Lenders, the Term C Lenders and the Term D
Lenders; provided, however, that any Term B Lender, Term C Lender or
Term D Lender, at its option, to the extent that, in the case of such
a Term B Lender any Term A Advances or, in the case of such a Term C
Lender, any Term B Advances, or, in the case of such a Term D Lender,
any Term C Advances, are then outstanding, may elect not to accept
such prepayment (any such Lender being a "DECLINING LENDER"), in which
event the provisions of the next sentence shall apply. Any Term B
Lender, Term C Lender or Term D Lender may elect not to accept its
ratable share of the prepayment referred to in any Prepayment Notice
by giving written notice to the Agent not later than 11:00 A.M. (New
York City time) on the Business Day immediately preceding the
scheduled Prepayment Date. On the Prepayment Date, (i) an amount
equal to that portion of the Prepayment Amount available to prepay
Term D Lenders (less any amounts that would otherwise be payable to
Term D Lenders that are Declining Lenders) shall be applied
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to prepay Term D Advances owing to Term D Lenders other than to Term D
Lenders that are Declining Lenders and any amounts that would
otherwise have been applied to prepay Term D Advances owing to Term D
Lenders that are Declining Lenders shall instead be applied ratably to
prepay, first, the remaining Term A Advances, second, the remaining
Term B Advances (other than Term B Advances owing to Term B Lenders
that are Declining Lenders), and third, the remaining Term C Advances
(other than Term C Advances owing to Term C Lenders that are Declining
Lenders), (ii) an amount equal to that portion of the Prepayment
Amount available to prepay Term C Lenders (less any amounts that would
otherwise be payable to Term C Lenders that are Declining Lenders)
shall be applied to prepay Term C Advances owing to Term C Lenders
other than to Term C Lenders that are Declining Lenders and any
amounts that would otherwise have been applied to prepay Term C
Advances owing to Term C Lenders that are Declining Lenders shall
instead be applied ratably to prepay, first, the remaining Term A
Advances, and second, the remaining Term B Advances (other than Term B
Advances owing to Term B Lenders that are Declining Lenders), and
(iii) an amount equal to that portion of the Prepayment Amount
available to prepay Term B Lenders (less any amounts that would
otherwise be payable to Term B Lenders that are Declining Lenders)
shall be applied to prepay Term B Advances owing to Term B Lenders
other than Term B Lenders that are Declining Lenders and any amounts
that would otherwise have been applied to prepay Term B Advances owing
to Term B Lenders that are Declining Lenders shall instead be applied
ratably to prepay the remaining Term A Advances, in the case of each
of clauses (i) and (ii) hereof as provided in Sections 2.06(a) and
(b); provided further that on prepayment in full of Term Advances
owing to Term Lenders other than Declining Lenders, the remainder of
any Prepayment Amount shall be applied ratably to prepay Term Advances
owing to Declining Lenders.
(q) Section 2.08(a) is amended by adding "or unused Revolving Credit
Commitment" after "Unused Working Capital Commitment".
(r) Section 2.15(a) is amended by:
(i) adding ", Term D Note, Revolving Credit Note" after "Term C
Note";
(ii) adding ", the Term D Commitment, the Working Capital
Commitment" after " Term C Commitment'.
(s) Section 2.15(d) is amended by adding ", Term D Notes, Revolving
Credit Notes" after "Term C Notes".
(t) Section 3.02(iii) is amended by adding ", Revolving Credit
Advance" after "Working Capital Advance," and by adding " plus Revolving
Credit Advances" after "Working Capital Advances".
(u) A new Section 3.02(iv) is added as follows:
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"(iv) for each Revolving Credit Advance, the aggregate Unused
Working Capital Commitments of the Working Capital Lenders is less
than $1,000,000;".
(v) Section 7.05(a) is amended by adding "and (e) their respective
unused Revolving Credit Commitments" after "(d) their respective Unused
Working Capital Commitments".
(w) Schedule I is replaced in full by Schedule I in the form attached
hereto.
(q) New Exhibits X-0, X-0, B and G are added in the form of each such
Exhibit attached hereto.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
---------------------------
effective as of the date first above written (the "EFFECTIVE DATE") when, and
only when, the following conditions precedent have been satisfied:
(a) The Agent shall have received on or before the Effective Date, in
form and substance satisfactory to the Agent and in sufficient copies for each
Lender Party:
(i) counterparts of this Amendment executed by the Borrower and
the Required Lenders and each Revolving Credit Lender or, as to any of
the Lenders, advice satisfactory to the Agent that such Lender has
executed this Amendment;
(ii) the consent attached hereto executed by each Guarantor (the
"CONSENT");
(iii) certified copies of (i) the resolutions of the Board of
Directors of (A) the Borrower approving this Amendment and the matters
contemplated hereby, and (B) each Guarantor approving the Consent and
the matters contemplated thereby, and (ii) all documents evidencing
other necessary corporate action and governmental approvals, if any,
with respect to this Amendment, the Consent and the matters
contemplated hereby and thereby;
(iv) a certificate of the Secretary or an Assistant Secretary of
each Loan Party certifying the names and true signatures of the
officers of such Persons authorized to sign this Amendment and the
Consent and the other documents to be delivered hereunder; and
(v) a favorable opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel
for the Borrower, as to the due execution, validity and enforceability
of this Amendment, the Loan Documents (as amended by this Amendment),
and the Consent and as to such other matters as any Lender through the
Agent may reasonably request.
(b) All governmental and third party consents and approvals necessary
in connection with the transactions contemplated hereby shall have been obtained
(without the imposition of any conditions that are not acceptable to the
Lenders) and shall remain in effect,
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and no law or regulation shall be applicable in the reasonable judgement of the
Lenders that restrains, prevents or imposes materially adverse conditions upon
the transactions contemplated hereby.
(c) On the Effective Date, the following statements shall be true and
the Agent shall have received a certificate signed by a duly authorized officer
of the Borrower, dated the Effective Date, stating that:
(i) the representations and warranties contained in Section 4.01
of the Credit Agreement are correct on and as of the Effective Date;
and
(ii) no Default exists under the Credit Agreement.
(d) The Borrower shall have paid to the Agent for the account of each
Lender that executes this Amendment an amendment fee equal to 0.25% on the sum
of the Commitments of each such Lender.
(e) The Borrower shall have paid all costs and expenses required under
Section 5 hereof.
This Amendment is subject to the provisions of Section 8.01 of the
Credit Agreement.
SECTION 3. Representations and Warranties of the Borrower. The
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Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction indicated in the
recital of parties to this Amendment.
(b) The execution, delivery and performance by the Borrower of this
Amendment and the Loan Documents, as amended hereby, to which it is or is
to be a party, and the consummation of the transactions contemplated
hereby, are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action and do not (i) contravene the
Borrower's charter or by-laws, (ii) violate any law, rule or regulation
(including, without limitation, Regulation X of the Board of Governors of
the Federal Reserve System), or any order, writ, judgment, injunction,
decree, determination or award, (iii) conflict with or result in the breach
of, or constitute a default under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting
any Loan Party, any of its Subsidiaries or any of their properties or (iv)
except for the Liens created under Loan Documents, result in or require the
creation or imposition of any Lien upon or with respect to any of the
properties of any Loan Party or any of its Subsidiaries.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery or performance by
the Borrower of this Amendment or any of the Loan Documents, as amended
hereby, to which it is or is to be a party.
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(d) This Amendment has been duly executed and delivered by the
Borrower. This Amendment and each of the other Loan Documents, as amended
hereby, to which the Borrower is a party are legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance
with their respective terms.
(e) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any
Environmental Action, pending or threatened before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect (other than as set forth on Schedule 4.01(j) to the Credit
Agreement) or (ii) purports to affect the legality, validity or
enforceability of this Amendment or any of the other Loan Documents, as
amended hereby, or the consummation of any of the transactions contemplated
hereby.
(f) The representations and warranties contained in each Loan Document
are true and correct on and as of the date of the Amendment, other than any
such representations or warranties that, by their terms, refer to a
specific date other than the date of this Amendment, in which case as of
such specific date.
(g) No Defaults exists under the Credit Agreement.
SECTION 4. Reference to and Effect on the Credit Agreement and the
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Loan Documents. (a) On and after the effectiveness of this Amendment, each
--------------
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the Notes and each of the other Loan Documents to "the Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement, as amended by
this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall continue to
be in full force and effect and are hereby in all respects ratified and
confirmed. Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therein do and shall continue to
secure the payment of all Obligations of the Loan Parties under the Loan
Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. Costs and Expenses. The Borrower agrees to pay on demand
------------------
all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Agent) in accordance with the terms of Section 8.04 of the Credit Agreement.
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SECTION 6. Execution in Counterparts. This Amendment may be executed
-------------------------
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
-------------
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
TELESPECTRUM WORLDWIDE, INC.
By_____________________
Title:
11
BANQUE NATIONALE DE PARIS,
as Agent and as Lender
By_____________________
Title:
By_____________________
Title:
BANK OF AMERICA, N.A.
as Administrative Agent and as Lender
By_____________________
Title:
BANKBOSTON, N.A.
By_____________________
Title:
IBJ WHITEHALL BANK & TRUST
COMPANY
By_____________________
Title:
XXX XXXXXX PRIME RATE
INCOME TRUST
By_____________________
Title: Senior Vice President & Director
XXX XXXXXX SENIOR FLOATING
RATE FUND
By_____________________
Title: Senior Vice President & Director
XXX XXXXXX SENIOR
INCOME TRUST
By_____________________
Title: Senior Vice President & Director
XXXXX FARGO BANK, N.A.
By_____________________
Title:
FIRST SOURCE FINANCIAL LLP
By First Source Financial, Inc.,
its agent /manager
By_____________________
Title:
KZH ING-1 LLC
By_____________________
Title:
KZH ING-2 LLC
By_____________________
Title:
KZH ING-3 LLC
By_____________________
Title:
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors LLC,
as Collateral Manager
By_____________________
Title:
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By_____________________
Title:
FIRST DOMINION FUNDING III
By_____________________
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By_____________________
Title:
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