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EXHIBIT 10.40.1
FIRST AMENDMENT TO CREDIT AGREEMENT
AND ASSIGNMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND ASSIGNMENT, dated as of
November 20, 2000 (this "First Amendment"), is entered into by and among HORIZON
PERSONAL COMMUNICATIONS, INC., an Ohio corporation (the "Company"), BRIGHT
PERSONAL COMMUNICATIONS SERVICES, LLC, an Ohio limited liability company
("Bright") (each of the Company and Bright, individually a "Borrower" and
collectively, the "Borrowers"), HORIZON PCS, INC., a Delaware corporation (the
"Parent"), those Subsidiaries of the Parent listed on the signature pages hereto
(together with the Parent, individually a "Guarantor" and collectively the
"Guarantors"; the Guarantors, together with the Borrowers, individually a
"Credit Party" and collectively the "Credit Parties"), the lenders identified on
the signature pages hereto as the Existing Lenders (the "Existing Lenders"), the
lenders identified on the signature pages hereto as the New Lenders (the "New
Lenders"), FIRST UNION NATIONAL BANK, as Administrative Agent (the
"Administrative Agent"), WESTDEUTSCHE LANDESBANK GIROZENTRALE, as Syndication
Agent and Arranger (the "Syndication Agent"), and FORTIS CAPITAL CORP., as
Documentation Agent (the "Documentation Agent").
WITNESSETH
WHEREAS, the Borrowers, the Guarantors, the Administrative Agent, the
Syndication Agent, the Documentation Agent and the Existing Lenders are parties
to that certain Credit Agreement dated as of September 26, 2000 (as amended,
modified, supplemented or restated from time to time, the "Credit Agreement";
capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement unless otherwise defined herein);
WHEREAS, the Borrower has requested that the Revolving Committed Amount
be increased by $20,000,000 and the Term Loan A Committed Amount be increased by
$5,000,000; and
WHEREAS, in connection with such increases, the Credit Parties, the
Existing Lenders, the Administrative Agent and the New Lenders have agreed that
the New Lenders shall become parties to the Credit Agreement (as amended hereby)
by way of assignments by the Existing Lenders of certain percentages of their
Commitments and the outstanding Loans and LOC Obligations.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
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SECTION 1
AMENDMENTS
1.1 DEFINITION OF REQUIRED LENDERS. The definition of "Required
Lenders" set forth in Section 1.1 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Required Lenders" shall mean Lenders holding in the aggregate
more than 50% of (a) all Revolving Loans and LOC Obligations then
outstanding at such time plus (b) the aggregate unused Revolving
Commitments at such time (treating for purposes hereof in the case of
Swingline Loans and LOC Obligations, in the case of the Swingline
Lender and the Issuing Lender, only the portion of the Swingline Loans
and the LOC Obligations of the Swingline Lender and the Issuing Lender,
respectively, which is not subject to the Participation Interests of
the other Lenders and, in the case of the Lenders other than the
Swingline Lender and the Issuing Lender, the Participation Interests of
such Lenders in Swingline Loans and LOC Obligations hereunder as direct
obligations) plus (c) with respect to the Term Loan A, (i) until the
date that is eighteen (18) months after the Closing Date, all of the
Term Loan A then outstanding at such time plus the aggregate unused
Term Loan A Commitments and (ii) after the date that is eighteen (18)
months after the Closing Date, all of the Term Loan A then outstanding
at such time plus (d) with respect to the Term Loan B, all of the Term
Loan B then outstanding at such time; provided, however, if any Lender
shall be a Defaulting Lender at such time, then there shall be excluded
from the determination of Required Lenders, Credit Party Obligations
(including Participation Interests) owing to such Defaulting Lender and
such Defaulting Lender's Commitments, or after termination of the
Commitments, the principal balance of the Credit Party Obligations
owing to such Defaulting Lender.
1.2 REVOLVING COMMITTED AMOUNT. Section 2.1(a) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
SECTION 2.1 REVOLVING LOANS.
(a) Revolving Commitment. During the Commitment Period,
subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans ("Revolving Loans") to the
Borrowers from time to time for the purposes hereinafter set forth;
provided, however, that (i) with regard to each Lender individually,
the sum of such Lender's share of outstanding Revolving Loans plus such
Lender's Revolving Commitment Percentage of Swingline Loans plus such
Lender's LOC Commitment Percentage of LOC Obligations shall not exceed
such Lender's Revolving Commitment Percentage of the aggregate
Revolving Committed Amount and (ii) with regard to the Lenders
collectively, the sum of the aggregate amount of outstanding Revolving
Loans plus Swingline Loans plus LOC Obligations shall not exceed the
aggregate Revolving Committed Amount then in effect. For purposes
hereof, the aggregate amount available
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hereunder shall be NINETY-FIVE MILLION DOLLARS ($95,000,000) (as such
aggregate maximum amount may be reduced from time to time as provided
in Section 3.2, the "Revolving Committed Amount"). Revolving Loans may
consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a
combination thereof, as the Borrowers may request, and may be repaid
and reborrowed in accordance with the provisions hereof.
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1.3 TERM LOAN A COMMITTED AMOUNT AND AMORTIZATION SCHEDULE.
Sections 2.4(a) and (b) of the Credit Agreement are hereby amended and restated
in their entirety to read as follows:
SECTION 2.4 TERM LOAN A.
(a) Term Loan A. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set
forth herein, each Lender severally agrees to make available to the
Borrowers from time to time pursuant to Section 2.4(c), or such earlier
date as the Term Loan A Commitments shall have been terminated as
provided herein, such Lender's Term Loan A Commitment Percentage of a
term loan in Dollars (the "Term Loan A") in the aggregate principal
amount of ONE HUNDRED FIVE MILLION DOLLARS ($105,000,000) (the "Term
Loan A Committed Amount") for the purposes hereinafter set forth. The
Term Loan A may consist of Alternate Base Rate Loans or LIBOR Rate
Loans, or a combination thereof, as the Company may request. Amounts
repaid on the Term Loan A may not be reborrowed.
(b) Repayment of Term Loan A. The principal amount of the
Term Loan A shall be repaid in eighteen (18) consecutive fiscal
quarterly installments as follows, unless accelerated sooner pursuant
to Section 10.2:
PRINCIPAL TERM LOAN A
AMORTIZATION PAYMENT PRINCIPAL
DATES AMORTIZATION PAYMENT
-------------------- --------------------
June 30, 2004 $2,625,000
September 30, 2004 $2,625,000
December 31, 2004 $2,625,000
March 31, 2005 $2,625,000
June 30, 2005 $5,250,000
September 30, 2005 $5,250,000
December 31, 2005 $6,562,500
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PRINCIPAL TERM LOAN A
AMORTIZATION PAYMENT PRINCIPAL
DATES AMORTIZATION PAYMENT
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March 31, 2006 $6,562,500
June 30, 2006 $6,562,500
September 30, 2006 $6,562,500
December 31, 2006 $6,562,500
March 31, 2007 $6,562,500
June 30, 2007 $6,562,500
September 30, 2007 $6,562,500
December 31, 2007 $7,875,000
March 31, 2008 $7,875,000
June 30, 2008 $7,875,000
Revolving Commitment $7,875,000
Termination Date
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1.4 REVOLVING COMMITTED AMOUNT REDUCTIONS. Section 3.2(b)(ii) of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
SECTION 3.2 REDUCTION OF REVOLVING COMMITMENTS OR TERM LOAN A
COMMITMENTS.
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(B) MANDATORY REDUCTIONS.
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(ii) The Revolving Committed Amount shall be
reduced in eighteen (18) consecutive fiscal quarterly
installments as follows (and the outstanding Revolving Loans
shall be repaid in an amount necessary to comply with Section
3.3(b)(i)), unless accelerated sooner pursuant to Section
10.2:
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REVOLVING COMMITTED
AMOUNT REDUCTION
DATES AMOUNT OF REDUCTION
-------------------- -------------------
June 30, 2004 $2,375,000
September 30, 2004 $2,375,000
December 31, 2004 $2,375,000
March 31, 2005 $2,375,000
June 30, 2005 $4,750,000
September 30, 2005 $4,750,000
December 31, 2005 $5,937,500
March 31, 2006 $5,937,500
June 30, 2006 $5,937,500
September 30, 2006 $5,937,500
December 31, 2006 $5,937,500
March 31, 2007 $5,937,500
June 30, 2007 $5,937,500
September 30, 2007 $5,937,500
December 31, 2007 $7,125,000
March 31, 2008 $7,125,000
June 30, 2008 $7,125,000
Revolving Commitment $7,125,000
Termination Date
1.5 MANDATORY PREPAYMENTS. Sections 3.3(b)(ii), (iv) and (v) of
the Credit Agreement are hereby amended and restated in their entirety to read
as follows:
SECTION 3.3 PREPAYMENTS.
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(b) Mandatory Prepayments.
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(ii) Asset Dispositions. Within ten (10) Business
Days following any Asset Disposition, the Borrowers shall
prepay the Loans in an aggregate amount equal to one hundred
percent (100%) of the Net Cash Proceeds derived from such
Asset Disposition (such prepayment to be applied as set forth
in clause (vii) below); provided, however, that such Net Cash
Proceeds shall not be required to be so applied to the extent
that the Company delivers to the Administrative Agent a
certificate certifying that the Credit Parties intend to
reinvest such Net Cash Proceeds in replacement assets within
180 days of the receipt of such Net Cash Proceeds and
completes such reinvestment within such 180-day period.
Notwithstanding anything to the contrary contained herein,
after the occurrence and during the continuance of an Event of
Default, the Required Lenders shall have the option to require
such Net Cash Proceeds to be applied immediately to prepay the
Loans in accordance with clause (vii) below.
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(iv) Equity Issuance. Within ten (10) Business
Days following any Equity Issuance, the Borrowers shall prepay
the Loans in an aggregate amount equal to fifty percent (50%)
of the Net Cash Proceeds derived from such Equity Issuance
(such prepayment to be applied as set forth in clause (vii)
below); provided, however, that such Net Cash Proceeds shall
not be required to be so applied to the extent that the
Company (A) delivers to the Administrative Agent a certificate
that the Credit Parties intend to use such Net Cash Proceeds
to (x) redeem up to 35% of the outstanding principal amount of
the Permitted Parent Debt and pay any penalties, premiums or
accrued interest with respect thereto, and/or (y) acquire
additional telecommunications assets within 18 months of the
receipt of such Net Cash Proceeds, so long as such additional
telecommunications assets are useful in its business in
accordance with the provisions of Section 7.10 and as
permitted pursuant to Section 9.4 and (B) uses such Net Cash
Proceeds for the purposes set forth in clause (x) above within
a reasonable period of time and/or for the purposes set forth
in clause (y) above within 18 months of the receipt of such
Net Cash Proceeds. Notwithstanding anything to the contrary
contained herein, after the occurrence and during the
continuance of an Event of Default, the Required Lenders shall
have the option to require such Net Cash Proceeds to be
applied immediately to prepay the Loans in accordance with
clause (vii) below.
(v) Recovery Event. Within ten (10) Business
Days following the receipt of insurance proceeds in connection
with a Recovery Event, the Borrowers shall prepay the Loans in
an aggregate amount equal to one hundred percent (100%) of
such insurance proceeds (such prepayment to be applied as set
forth in clause (vii) below); provided, however, that such
insurance proceeds shall not be required to be so applied to
the extent that the Company delivers to
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the Administrative Agent a certificate certifying that the
Credit Parties intend to reinvest such insurance proceeds in
replacement assets within 180 days of the receipt of such
insurance proceeds and completes such reinvestment within such
180-day period. Notwithstanding anything to the contrary
contained herein, after the occurrence and during the
continuance of an Event of Default, the Required Lenders shall
have the option to require such insurance proceeds to be
applied immediately to prepay the Loans in accordance with
clause (vii) below.
1.6 SCHEDULE 2.1(A). Schedule 2.1(a) to the Credit Agreement is
hereby amended and replaced by the Schedule 2.1(a) attached hereto.
SECTION 2
CLOSING CONDITIONS
2.1 CLOSING CONDITIONS.
This First Amendment shall be effective as of the date first above
written (the "First Amendment Effective Date") at such time as the following
conditions shall have been satisfied (in form and substance reasonably
acceptable to the Administrative Agent):
(a) First Amendment. Receipt by the Administrative Agent
of a copy of this First Amendment duly executed by each of the Credit
Parties, the Existing Lenders and the New Lenders.
(b) Resolutions. Receipt by the Administrative Agent of
copies of resolutions of the Board of Directors of each of the Credit
Parties approving and adopting this First Amendment, the transactions
contemplated herein and authorizing execution and delivery hereof,
certified by a secretary or assistant secretary of such Credit Party to
be true and correct and in force and effect as of the date hereof.
(c) Opinion. Receipt by the Administrative Agent of an
opinion of counsel to the Credit Parties addressed to the
Administrative Agent, the Existing Lenders and the New Lenders, in form
and substance satisfactory to the Administrative Agent.
(d) Notes. Receipt by each New Lender of a Revolving
Note, Term Loan A Note and Term Loan B Note evidencing such New
Lender's Revolving Commitment, Term Loan A Commitment and Term Loan B
Commitment, as applicable, duly-executed by the Borrowers.
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SECTION 3
ASSIGNMENTS AND ASSUMPTIONS
The Existing Lenders hereby sell and assign, without recourse and without
representation or warranty except as expressly set forth herein, to the New
Lenders, and the New Lenders hereby purchase and assume from the Existing
Lenders, effective as of the First Amendment Effective Date, such interests in
the Existing Lenders' rights and obligations under the Credit Agreement
(including, without limitation, the Commitments of the Existing Lenders on the
First Amendment Effective Date and the Loans and LOC Obligations owing to the
Existing Lenders which are outstanding on the First Amendment Effective Date) as
shall be necessary in order to give effect to the reallocations of the Revolving
Committed Amount, the LOC Committed Amount, the Term Loan A Committed Amount and
the Term Loan B Committed Amount and the Commitment Percentages effected by the
amendment to Schedule 2.1(a) to the Credit Agreement pursuant to Section 1.3 of
this First Amendment. By executing this First Amendment below, each of the
Borrowers and the Administrative Agent hereby consent to the foregoing
assignments. From and after the First Amendment Effective Date (a) each of the
New Lenders shall be a party to and be bound by the provisions of the Credit
Agreement (as amended hereby) and, to the extent of the interests assigned
hereby, have the rights and obligations of a Lender thereunder and under the
other Credit Documents and (b) each of the Existing Lenders shall, to the extent
of its interests assigned hereby, relinquish its rights and be released from its
obligations under the Credit Agreement.
Each of the Existing Lenders (i) represents that it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such interest is
free and clear of any adverse claim, (ii) makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Credit Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto, and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrowers or their Subsidiaries or the performance or
observance by the Borrowers or their Subsidiaries of any of their obligations
under the Credit Agreement or any other instrument or document furnished or
executed pursuant thereto.
Each of the New Lenders (A) represents and warrants that it is legally
authorized to enter into this First Amendment, (B) confirms that it has received
a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 6.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this First Amendment; (C) agrees that it
will, independently and without reliance upon the Existing Lenders or any other
Lender or Administrative Agent and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (D) confirms that it is
an Eligible Assignee; (E) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement
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and the other Credit Documents as are delegated to the Administrative Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (F) agrees that it will perform in accordance with their terms all the
obligations which by the terms of the Credit Agreement and the other Credit
Documents are required to be performed by it as a Lender; (G) agrees to hold all
confidential information in a manner consistent with the provisions of Section
12.10(g) of the Credit Agreement; and (H) includes herewith for the
Administrative Agent the two forms required by Section 3.14 of the Credit
Agreement (if not previously delivered).
SECTION 4
MISCELLANEOUS
4.1 AMENDED TERMS. The term "Credit Agreement" as used in each of
the Credit Documents shall hereafter mean the Credit Agreement as amended by
this First Amendment. Except as specifically amended hereby or otherwise agreed,
the Credit Agreement is hereby ratified and confirmed and shall remain in full
force and effect according to its terms.
4.2 REPRESENTATIONS AND WARRANTIES OF CREDIT PARTIES. Each of the
Credit Parties represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this First Amendment.
(b) This First 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 First Amendment.
(d) The representations and warranties set forth in
Article V of the Credit Agreement are, subject to the limitations set
forth therein, true and correct in all material respects as of the date
hereof (except for those which expressly relate to an earlier date).
4.3 ACKNOWLEDGMENT OF GUARANTORS. The Guarantors acknowledge and
consent to all of the terms and conditions of this First Amendment and agree
that this First Amendment and all documents executed in connection herewith do
not operate to reduce or discharge the Guarantors' obligations under the Credit
Documents.
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4.4 CREDIT DOCUMENT. This First Amendment shall constitute a
Credit Document under the terms of the Credit Agreement.
4.5 ENTIRETY. This First Amendment and the other Credit Documents
embody the entire agreement between the parties hereto and supersede all prior
agreements and understandings, oral or written, if any, relating to the subject
matter hereof.
4.6 COUNTERPARTS. This First 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.
4.7 GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH
CAROLINA.
4.8 CONSENT TO JURISDICTION; SERVICE OF PROCESS; ARBITRATION. The
jurisdiction, services of process and arbitration provisions set forth in
Sections 12.5 and 12.6 of the Credit Agreement are hereby incorporated by
reference, mutatis mutandis.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this First Amendment to be duly executed and delivered as of the date first
above written.
BORROWERS: HORIZON PERSONAL COMMUNICATIONS,
INC.
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
BRIGHT PERSONAL COMMUNICATIONS
SERVICES, LLC
By:
--------------------------------
Name:
---------------------------
Title:
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GUARANTORS: HORIZON PCS, INC.
By:
--------------------------------
Name:
---------------------------
Title:
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EXISTING LENDERS: FIRST UNION NATIONAL BANK,
as Administrative Agent and as an
Existing Lender
By:
--------------------------------
Name:
---------------------------
Title:
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EXISTING LENDERS (CONTINUED): WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
as Syndication Agent and Arranger
and as an Existing Lender
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
By:
--------------------------------
Name:
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Title:
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EXISTING LENDERS (CONTINUED): FORTIS CAPITAL CORP.,
as Documentation Agent and as an
Existing Lender
By:
--------------------------------
Name:
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Title:
--------------------------
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EXISTING LENDERS (CONTINUED): COBANK, ACB
By:
--------------------------------
Name:
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Title:
--------------------------
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EXISTING LENDERS (CONTINUED): MOTOROLA CREDIT CORPORATION
By:
--------------------------------
Name:
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Title:
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EXISTING LENDERS (CONTINUED): NATIONAL CITY BANK
By:
--------------------------------
Name:
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Title:
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NEW LENDERS: BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
--------------------------------
Name:
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Title:
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NEW LENDERS (CONTINUED): CIT LENDING SERVICES CORPORATION
By:
--------------------------------
Name:
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Title:
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NEW LENDERS (CONTINUED): IBM CREDIT CORPORATION
By:
--------------------------------
Name:
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Title:
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Schedule 2.1(a)
SCHEDULE OF LENDERS AND
COMMITMENTS
Revolving Revolving LOC LOC Term Loan A Term Loan A
Committed Commitment Committed Commitment Committed Commitment
Lender Amount Percentage Amount Percentage Amount Percentage
------ ------------ ----------- -------------- ----------- ------------ ------------
First Union National Bank $ 15,921,964 16.75996210% $ 1,675,996.21 16.75996210% $ 4,211,370 4.01082857%
Fortis Capital Corp. $ 8,899,286 9.36766947% $ 936,766.95 9.36766947% $ 12,450,714 11.85782285%
Westdeutsche Landesbank $ 9,685,000 10.19473684% $ 1,019,473.68 10.19473684% $ 13,498,333 12.85555524%
Girozentrale, New York
Branch
CoBank, ACB $ 10,168,750 10.70394737% $ 1,070,394.74 10.70394737% $ 14,831,250 14.12500000%
Motorola Credit $ 16,666,667 17.54386000% $ 1,754,386.00 17.54386000% $ 22,222,222 21.16402095%
Corporation
National City Bank $ 8,333,333 8.77192947% $ 877,192.95 8.77192947% $ 11,111,111 10.00000000%
Bank of Tokyo-Mitsubishi $ 7,125,000 7.50000000% $ 750,000.00 7.50000000% $ 7,875,000 7.50000000%
Trust Company
IBM Credit Corporation $ 5,700,000 6.00000000% $ 600,000.00 6.00000000% $ 6,300,000 6.00000000%
CIT Lending Services $ 12,500,000 13.15789474% $ 1,315,789.47 13.15789474% $ 12,500,000 11.90476190%
Corporation
Total: $ 95,000,000 100% $ 10,000,000 100% $105,000,000 100%
Term Loan B Term Loan B
Committed Commitment
Lender Amount Percentage
------ ------------ ------------
First Union National Bank $ 14,866,666 29.73333200%
Fortis Capital Corp. $ 8,650,000 17.30000000%
Westdeutsche Landesbank $ 6,816,667 13.63333400%
Girozentrale, New York
Branch
CoBank, ACB $ 0 0%
Motorola Credit $ 11,111,111 22.22222200%
Corporation
National City Bank $ 5,555,556 11.00000000%
Bank of Tokyo-Mitsubishi $ 0 0%
Trust Company
IBM Credit Corporation $ 3,000,000 6.00000000%
CIT Lending Services $ 0 0%
Corporation
Total: $ 50,000,000 100%
