EXHIBIT 10.1.1
EXECUTION COPY
AMENDMENT NO. 1 TO THE
CREDIT AGREEMENT
Dated as of July 22, 2005
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT among Cricket
Communications, Inc., a Delaware corporation (the "Borrower"), Leap Wireless
International, Inc., a Delaware corporation ("Holdings"), as parent guarantor,
the banks, financial institutions and other institutional lenders parties to the
Credit Agreement referred to below (collectively, the "Lenders") and Bank of
America, N.A., as agent (the "Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, Holdings, the Lenders and the Agent have entered
into a Credit Agreement dated as of January 10, 2005 (the "Credit Agreement").
Capitalized terms not otherwise defined in this Amendment have the same meanings
as specified in the Credit Agreement.
(2) The Borrower has requested that the Required Lenders agree to
amend the Credit Agreement and the Security Agreement dated as of January 10,
2005 from the Grantors referred to therein in favor of the Agent for the benefit
of the Secured Parties (the "Security Agreement") to increase the amount
permitted to be invested in Designated Entities and to effect certain other
amendments.
(3) The Required Lenders are, on the terms and conditions stated
below, willing to grant the request of the Borrower and the Borrower and the
Required Lenders have agreed to amend the Credit Agreement as hereinafter set
forth.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3, hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is amended by adding
thereto the following additional definitions, in the appropriate
alphabetical position:
" "ANB 1" means Alaska Native Broadband 1, LLC, a Delaware limited
liability company, and its successors."
" "ANB 1 LICENSE" means Alaska Native Broadband 1 License, LLC, a
Delaware limited liability company, and its successors."
" "ANB CRICKET CREDIT AGREEMENT" means the credit agreement dated as
of December 22, 2004 among ANB 1 License, as borrower, ANB 1, as guarantor
and the Borrower, as lender, as amended by Amendment No. 1 dated as of
January 26, 2005 and by Amendment No. 2 dated as of June 24, 2005, and as
further amended or supplemented from time to time to the extent permitted
by Section 7.18."
" "ANB ENTITY" means ANB 1 or ANB 1 License and "ANB ENTITIES" means
ANB 1 and ANB 1 License, collectively."
" "CONTROLLED JOINT VENTURE ENTITY" means a Joint Venture Entity as
to which Holdings or any of its Subsidiaries owns a majority of the Equity
Interests having ordinary voting power for the election of directors,
managers or other governing body (other than securities or interests
having such power only by reason of the happening of a contingency)."
" "JOINT VENTURE ENTITY" means a corporation, partnership, joint
venture, limited liability company or other business entity in which
Holdings or any of its Subsidiaries makes any Investment as permitted by
Section 7.03(n), of which more than zero percent but less than 100% of the
shares of securities or other ownership interests having ordinary voting
power for the election of directors, managers or other governing body
(other than securities or interests having such power only by reason of
the happening of a contingency) are owned by Holdings or any of its
Subsidiaries; provided, however, that any entity that is a Subsidiary of
the Borrower on July 22, 2005 shall not be included in the term "Joint
Venture Entity"."
" "PERMITTED ANB UNSECURED INVESTMENT" means any of
(a) any Disposition permitted under any of Sections 7.05(o), 7.05(p)
and 7.05(q) that constitutes an Investment, to the extent that the
aggregate amount of all such Investments does not exceed $10,000,000
outstanding at any time,
(b) any Investment of the type permitted by clause (y) of Section
7.03(l),
(c) any Investment of the type permitted by clause (z) of Section
7.03(l),
(d) any Permitted Guarantee with respect to obligations of ANB 1 or
ANB 1 License, and
(e) one or more Investments in ANB 1 or ANB 1 License that in the
aggregate do not exceed $5,000,000 at any time."
" "PERMITTED GUARANTEES" means one or more Guarantees or assumptions
of Indebtedness or other liabilities or obligations of (a) ANB 1 or ANB 1
License that are otherwise permitted under Section 7.03(l), in an
aggregate amount not in excess of $20,000,000 at any time or (b) of Joint
Venture Entities, Designated Entities or Disqualified Subsidiaries that
are otherwise permitted under Section 7.03(n), in an aggregate amount not
in excess of $5,000,000 at any time."
(a) Section 1.01 is further amended as follows:
(i) the definition of "Consolidated EBITDA" is amended by
inserting after the phrase "Holdings and its Subsidiaries" where it occurs
in each of the eighth and sixteenth lines thereof the following:
"(including any Designated Entities and Joint
2
Venture Entities that are required under GAAP to be consolidated with
Holdings and its Subsidiaries)";
(ii) the definition of "Consolidated Fixed Charge Coverage
Ratio" is amended by inserting after the phrase "Holdings and its
Subsidiaries" where it occurs in the penultimate line thereof the
following: "(including any Designated Entities and Joint Venture Entities
that are required under GAAP to be consolidated with Holdings and its
Subsidiaries)";
(iii) the definition of "Consolidated Funded Indebtedness" is
amended by (A) inserting after the phrase "Holdings and its Subsidiaries"
where it occurs in each of the second and twelfth lines thereof the
following: "(including any Designated Entities and Joint Venture Entities
that are required under GAAP to be consolidated with Holdings and its
Subsidiaries)" and (B) inserting at the end of such definition,
immediately before the period, the following: "or Section 7.03(n)";
(iv) the definition of "Consolidated Interest Charges" is
amended by inserting after the phrase "Holdings and its Subsidiaries"
where it occurs in the seventh line thereof the following: "(including any
Designated Entities and Joint Venture Entities that are required under
GAAP to be consolidated with Holdings and its Subsidiaries)";
(v) the definition of "Consolidated Interest Coverage Ratio"
is amended by inserting after the phrase "Holdings and its Subsidiaries"
where it occurs in the third line thereof the following: "(including any
Designated Entities and Joint Venture Entities that are required under
GAAP to be consolidated with Holdings and its Subsidiaries)";
(vi) the definition of "Consolidated Leverage Ratio" is
amended by inserting after the phrase "Holdings and its Subsidiaries"
where it occurs in the third line thereof the following: "(including any
Designated Entities and Joint Venture Entities that are required under
GAAP to be consolidated with Holdings and its Subsidiaries)";
(vii) the definition of "Consolidated Net Income" is amended
by inserting after the phrase "Holdings and its Subsidiaries" where it
occurs in the second line thereof the following: "(including any
Designated Entities and Joint Venture Entities that are required under
GAAP to be consolidated with Holdings and its Subsidiaries)";
(viii) the definition of "Consolidated Senior Secured Leverage
Ratio" is amended by inserting after the phrase "Holdings and its
Subsidiaries" where it occurs in the third line thereof the following:
"(including any Designated Entities and Joint Venture Entities that are
required under GAAP to be consolidated with Holdings and its
Subsidiaries)";
(ix) the definition of "Disqualified Subsidiary" is amended by
inserting after the phrase "that was formerly a Designated Entity" the
phrase "or a Joint Venture Entity";
3
(x) the definition of "Excess Cash Flow" is amended by (A)
inserting after the phrase "Holdings and its Subsidiaries" where it occurs
in each of the fifth, ninth, eleventh and twelfth lines thereof the
following: "(including any Designated Entities and Joint Venture Entities
that are required under GAAP to be consolidated with Holdings and its
Subsidiaries)" and (B) substituting for the phrase "Sections 7.03(k) and
7.03(l)" in clause (j) thereof the phrase "Sections 7.03(k), 7.03(l) and
7.03(n)";
(xi) the definition of "Investment" is amended by substituting
for the phrase "Guarantees of a Designated Entity or assumptions of debt
of a Designated Entity" where it appears in clause (b) thereof the phrase
"Guarantees of Designated Entity or a Joint Venture Entity or assumptions
of debt of a Designated Entity or a Joint Venture Entity"; and
(xii) the definition of "Subsidiary" is amended by (A)
substituting for the word "and" where it appears immediately before clause
(y) thereof a comma, (B) amending and restating clause (y) thereof in its
entirety to read as follows: "until such time as Holdings beneficially
owns, directly or indirectly, shares of securities or other ownership
interests having the power to elect a majority of the directors, managers
or other governing body (other than securities or interests having such
power only by reason of the happening of a contingency) of an ANB Entity,
such ANB Entity" and (B) inserting the following immediately before the
period at the end of such definition: "and (z) until such time as Holdings
beneficially owns, directly or indirectly, 100% of the Equity Interests of
a Joint Venture Entity, Designated Entity or former Designated Entity in
which Holdings or any of it Subsidiaries makes any Investment pursuant to
Section 7.03(n), each such Joint Venture Entity, Designated Entity or
former Designated Entity".
(b) Section 2.04(b)(ii) is amended by inserting in place of the
phrase "Section 7.05(a), (b), (c), (d), (f), (g), (h) or (i)(x)" where it
appears therein the following: "Section 7.05(a), (b), (c), (d), (f), (g),
(h), (i)(x), (n), (o), (p), (q), (r), (s), (t), (u) or (v)".
(c) The first sentence of Section 2.13(a) is amended and restated in
its entirety to read as follows:
"Provided there exists no Default, upon notice to the Administrative Agent
(which shall promptly notify the Lenders), the Borrower may from time to
time, request an increase in the Term B or Revolving Credit Commitments by
an amount (for all such requests after July 22, 2005) not exceeding
$300,000,000; provided that (i) up to three such requests for increases
which are in respect of the Revolving Credit Facility may be in minimum
amounts of $5,000,000 each and (ii) any other such request for an increase
shall be in a minimum amount of $50,000,000."
(d) Section 4.02(a) is amended by inserting the following language
at the end of such Section, immediately before the period: ", and all
references in Sections 5.05(a) and (b) to Holdings and its Subsidiaries
shall be deemed to refer to Holdings and its Subsidiaries and any
Designated Entities and Joint Venture Entities that are required under
GAAP, during the period covered by the relevant financial statements, to
be consolidated with Holdings and its Subsidiaries".
4
(e) The last sentence of Section 5.05(b) is deleted in its entirety.
(f) Section 5.05(d) is amended by inserting after the words
"Holdings and its Subsidiaries" where they appear in the second line
thereof the following: "(including any Designated Entities and Joint
Venture Entities that are required under GAAP to be consolidated with
Holdings and its Subsidiaries)".
(g) Section 6.01 is amended as follows:
(i) the first paragraph of Section 6.01 is amended to delete
from the end of such paragraph the phrase "and in sufficient copies for
each Lender";
(ii) Section 6.01(a) is amended by inserting after the phrase
"Holdings and its Subsidiaries" where it appears in the second line
thereof the following: "(including Designated Entities and Joint Venture
Entities that are required under GAAP to be consolidated with Holdings and
its Subsidiaries)";
(iii) Section 6.01(b) is amended by inserting after the phrase
"Holdings and its Subsidiaries" where it appears in each of the third and
eleventh lines thereof the following: "(including Designated Entities and
Joint Venture Entities that are required under GAAP to be consolidated
with Holdings and its Subsidiaries)"; and
(iv) Section 6.01(c) is amended by inserting after the phrase
"Holdings and its Subsidiaries" where it appears in the fifth line thereof
the following: "(including Designated Entities and Joint Venture Entities
that are required under GAAP to be consolidated with Holdings and its
Subsidiaries)".
(h) Section 6.02 is amended as follows:
(i) the first paragraph of Section 6.02 is amended to delete
from the end of such paragraph the phrase "and in sufficient copies for
each Lender"; and
(ii) the second paragraph of Section 6.02 is amended by
substituting for the phrase "Holdings shall notify the Administrative
Agent and each Lender" where it appears in clause (ii) of the proviso to
such paragraph the following: "Holdings shall notify the Administrative
Agent, which shall notify to each Lender,".
(i) The first paragraph of Section 6.03 is amended by substituting
for the phrase "notify the Administrative Agent and each Lender" where it
appears therein the following: "notify the Administrative Agent, which
shall notify each Lender"
(j) Section 6.22 is amended and restated in its entirety to read as
follows:
"6.22. Designated Entities, Joint Venture Entities and Disqualified
Subsidiaries Separateness. Comply with the following:
(i) (A) Holdings and its Subsidiaries (other than a Disqualified
Subsidiary) will, to the extent that any such Subsidiary has one or more
deposit accounts, maintain
5
their own deposit account or accounts, separate from those of each
Designated Entity, each Joint Venture Entity and each Disqualified
Subsidiary, with commercial banking institutions and will not commingle
their funds with any Designated Entity, and Joint Venture Entity or any
Disqualified Subsidiary; and (B) each Disqualified Subsidiary and each
Controlled Joint Venture Entity, to the extent that any such Disqualified
Subsidiary or Controlled Joint Venture Entity has one or more deposit
accounts, will maintain its own deposit account or accounts, separate from
those of each Designated Entity and each of Holdings and each of its other
Subsidiaries, with commercial banking institutions and will not commingle
its funds with any Designated Entity or Holdings or any of its other
Subsidiaries;
(ii) (A) Holdings and its Subsidiaries (other than a Disqualified
Subsidiary) will maintain a separate address from the address of each
Designated Entity, each Joint Venture Entity and each Disqualified
Subsidiary, or to the extent any Designated Entity, Joint Venture Entity
or Disqualified Subsidiary may have offices in the same location as any of
Holdings and its other Subsidiaries, maintain a fair and appropriate
allocation of overhead costs among them, with each such entity bearing its
fair share of such expense; and (B) each Disqualified Subsidiary and each
Controlled Joint Venture Entity will maintain a separate address from the
address of each Designated Entity and each of Holdings and its other
Subsidiaries, or to the extent any Disqualified Subsidiary or Controlled
Joint Venture Entity may have offices in the same location as any
Designated Entity or any of Holdings and its other Subsidiaries, maintain
a fair and appropriate allocation of overhead costs among them, with each
such entity bearing its fair share of such expense;
(iii) each Disqualified Subsidiary and each Controlled Joint Venture
Entity will issue separate financial statements prepared not less
frequently than quarterly and prepared in accordance with GAAP (except for
the omission of certain footnotes and other presentation items required by
GAAP with respect to audited financial statements), which financial
statements need not be separately audited or reviewed by an independent
accounting firm;
(iv) each Disqualified Subsidiary and each Controlled Joint Venture
Entity will be a corporation or limited liability company and each
Disqualified Subsidiary and each Controlled Joint Venture Entity will
conduct its affairs in accordance with its certificate of incorporation or
formation and by-laws or limited liability company agreement (or similar
constitutive documents) and observe all necessary, appropriate and
customary company (or corporate) formalities, including, but not limited
to, holding all regular and special members' and board of managers' (or
stockholders' and directors' or other similar Persons') meetings
appropriate to authorize all company (or corporate) action, keeping
separate and accurate minutes of its meetings, passing all resolutions or
consents necessary to authorize actions taken or to be taken, and
maintaining accurate and separate books, records and accounts, including,
but not limited to, payroll and intercompany transaction accounts, to the
extent applicable;
(v) (A) no Disqualified Subsidiary or Controlled Joint Venture
Entity will
6
assume or guarantee any of the liabilities of, or pledge any of its assets
for the benefit of any of, Holdings and its other Subsidiaries or any
Designated Entity, (B) each of Holdings and its Subsidiaries (other than a
Disqualified Subsidiary) will not assume or guarantee any of the
liabilities of, or pledge any of its assets for, the benefit of any
Designated Entity, Joint Venture Entity or Disqualified Subsidiary or hold
out its credit as being available to satisfy the obligations of any
Designated Entity, Joint Venture Entity or Disqualified Subsidiary (which
shall be deemed not to refer to any disclosure by Holdings and its
Subsidiaries of Investments or obligations that Holdings or its
Subsidiaries are permitted to make in or incur with respect to Designated
Entities, Joint Venture Entities and Disqualified Subsidiaries in
compliance with this Agreement), other than with respect to Permitted
Guarantees and (C) no Disqualified Subsidiary or Controlled Joint Venture
Entity will hold out the credit of Holdings and its other Subsidiaries as
being able to satisfy the obligations of such Disqualified Subsidiary or
Controlled Joint Venture Entity (which shall be deemed not to refer to any
disclosure by a Disqualified Subsidiary or Controlled Joint Venture Entity
of Investments or obligations that Holdings or its Subsidiaries are
permitted to make in or incur with respect to Disqualified Subsidiaries
and Controlled Joint Venture Entities in compliance with this Agreement),
other than with respect to Permitted Guarantees;
(vi) (A) Holdings and each of its Subsidiaries (other than a
Disqualified Subsidiary) will not authorize the use of its name or
trademarks or service marks by any Disqualified Subsidiary, Designated
Entity or Joint Venture Entity except pursuant to a written license
agreement; (B) each Disqualified Subsidiary and Controlled Joint Venture
Entity will not authorize the use of its name or trademarks or service
marks by any Designated Entity except pursuant to a written license
agreement; and (C) each Designated Entity, Disqualified Subsidiary and
Joint Venture Entity may use the same domain name for electronic mail as
Holdings and its Subsidiaries;
(vii) (A) None of Holdings or any of its Subsidiaries (other than a
Disqualified Subsidiary) will conduct a material amount of its own
business with suppliers of goods and services, lenders or purchasers of
securities in the name of Designated Entities, Joint Venture Entities or
Disqualified Subsidiaries, provided, however, that Holdings and its
Subsidiaries may provide services and, to the extent permitted under
Section 7.05, inventory, equipment and other property, to Designated
Entities, Joint Venture Entities and Disqualified Subsidiaries and may
conduct the business of Designated Entities, Joint Venture Entities and
Disqualified Subsidiaries by or on behalf of such Designated Entities,
Joint Venture Entities or Disqualified Subsidiaries, as applicable, under
a management or services agreement so long as, except as permitted under
Section 6.22(vi), any material business so conducted is conducted in the
name of such Designated Entity, Joint Venture Entity or Disqualified
Subsidiary, as applicable and (B) except as permitted under Section
6.22(vi), no Disqualified Subsidiary or Controlled Joint Venture Entity
will conduct a material amount of its own business with suppliers of goods
and services, lenders or purchasers of securities in the name of Holdings
or any of its other Subsidiaries or any Designated Entity; and
(viii) If Holdings or any of its Subsidiaries obtains actual
knowledge that any Designated Entity or Joint Venture Entity has
represented or indicated to any supplier of
7
goods and services to, lender to or purchaser of securities of such
Designated Entity or Joint Venture Entity that the credit of Holdings and
its Subsidiaries is available to satisfy the obligations of such
Designated Entity or Joint Venture Entity (which shall be deemed not to
refer to any disclosure by a Designated Entity or Joint Venture Entity of
Investments or obligations that Holdings or its Subsidiaries are permitted
to make in or incur with respect to Designated Entities and Joint Venture
Entities in compliance with this Agreement), other than in respect of
Permitted Guaranties, then Holdings and its Subsidiaries shall take such
action as shall be reasonable in the circumstances, which may include
providing written notice to any Person to whom such representation or
indication was made, to make clear that the credit of Holdings and its
Subsidiaries is not available to satisfy the obligations of such
Designated Entity or Joint Venture Entity, other than in respect of
Permitted Guaranties."
(k) A new Section 6.24 is added to the Credit Agreement, to read as
follows:
"6.24 Perfection of ANB Enitity Security. As promptly as
practicable, take, and use commercially reasonable efforts to cause each
ANB Entity to take, all action reasonably necessary or, in the reasonable
judgment of the Administrative Agent, desirable to perfect the security
interest of any Loan Party in substantially all of the assets (but
excluding FCC Licenses and non-owned real property interests) of such ANB
Entity securing Indebtedness owed by such ANB Entity to such Loan Party."
(l) Section 7.01(i) is amended by substituting for the figure
"$50,000,000" where it appears therein the figure "$100,000,000".
(m) Section 7.02(a) is amended as follows:
(i) Section 7.02(a)(C) is amended by (A) inserting after the
phrase "Holdings and its Subsidiaries" where it appears in clause (y)
thereof the following: "(including any Designated Entities and Joint
Venture Entities that are required under GAAP to be consolidated with
Holdings and its Subsidiaries)" and (B) substituting for the phrase
"delivered to the Administrative Agent and the Lenders" the phrase
"delivered to the Administrative Agent"; and
(ii) Section 7.02(a)(D) is amended by (A) inserting after the
phrase "Holdings and its Subsidiaries" where it appears in clause (y)
thereof the following: "(including any Designated Entities and Joint
Venture Entities that are required under GAAP to be consolidated with
Holdings and its Subsidiaries)" and (B) substituting for the phrase
"delivered to the Administrative Agent and the Lenders" the phrase
"delivered to the Administrative Agent".
(n) Section 7.02(b)(D) is amended by substituting for the figure
"$50,000,000" where it appears therein the figure "$100,000,000".
(o) Section 7.02(b)(F) is amended and restated in its entirety to
read as follows:
8
"(F) Indebtedness of any Disqualified Subsidiary owed to
Persons other than Loan Parties and existing at the time such
Disqualified Subsidiary becomes a wholly owned Subsidiary of
Holdings pursuant to Section 7.03(k), so long as such Indebtedness
(x) does not exceed $150,000,000 in the aggregate for all such
Indebtedness of Designated Entities and Joint Venture Entities that
become Disqualified Subsidiaries owed to Persons other than Loan
Parties and (y) other than with respect to Permitted Guarantees, is
non-recourse to Holdings and its other Subsidiaries, and any
refinancings, refundings, renewals or extensions thereof, provided
that (1) the amount of such Indebtedness is not increased at the
time of such refinancing, refunding, renewal or extension, (2) the
direct or any contingent obligor with respect thereto is not changed
(and other than with respect to Permitted Guarantees, such
Indebtedness remains non-recourse to Holdings and its other
Subsidiaries) and (3) the Liens securing such Indebtedness do not
extend to the assets of Holdings or any of its other Subsidiaries;".
(p) Section 7.02(b)(G) is amended by substituting for the phrase
"Designated Entities or Disqualified Subsidiaries" where it appears
therein the phrase "ANB Entities".
(q) Section 7.02(b) is further amended as follows: (i) the word
"and" is deleted from clause (H) of such Section, (ii) a new clause (I) is
added to such Section to read as follows: "Indebtedness constituting
Permitted Guarantees;" (iii) the existing clause (I) is redesignated (J),
(iv) the period at the end of such new clause (J) is replaced with the
following: "; and" and (v) a new clause (K) is added to such Section to
read as follows:
"(K) To the extent permitted under Section 7.03(n),
obligations to make Investments in or loans to or to acquire Equity
Interests in Joint Venture Entities or Designated Entities or
Disqualified Subsidiaries and obligations to pay any management,
origination or other similar fees to third parties in connection
therewith.".
(r) Section 7.03 is amended as follows:
(i) Section 7.03(k)(C) is amended by inserting after the words
"other than" in the first parenthetical therein the following: "Permitted
Guarantees or".
(ii) Section 7.03(k)(D) is amended by inserting at the end
thereof the following: "provided that the requirements of this clause (D)
shall not apply to an acquisition by the Borrower of the remaining portion
of the Equity Interests of ANB 1 that the Borrower does not own as of July
22, 2005 for a purchase price not exceeding $2,000,000, if at the time of
such acquisition ANB 1 and ANB 1 License do not owe to any Persons other
than Loan Parties Indebtedness in an aggregate amount in excess of
$5,000,000".
(iii) Section 7.03(k)(E) is amended by (A) inserting after the
phrase "Holdings and its Subsidiaries" where it appears therein the
parenthetical "(including any Designated Entities and Joint Venture
Entities that are required under GAAP to be
9
consolidated with Holdings and its Subsidiaries)" and (B) substituting for
the phrase "the Administrative Agent and the Lenders" the phrase "the
Administrative Agent".
(iv) Section 7.03(k)(F) is amended and restated in its
entirety to read as follows:
"(F) If such newly-acquired Subsidiary is a Disqualified Subsidiary,
the sole consideration paid for the acquisition of the remaining Equity
Interests of such former Designated Entity or Joint Venture Entity shall
be common stock of Holdings or Qualified Preferred Stock (or any
combination thereof) plus, at the option of Holdings, (i) if such entity
is an ANB Entity, an amount in cash not in excess of that portion of the
$325,000,000 permitted (in accordance with clause (y) of Section 7.03(l))
to be invested in ANB Entities that is at such time available to be so
invested, or (ii) if such entity is a former Designated Entity or Joint
Venture Entity other than an ANB Entity, an amount in cash not in excess
of that portion of the $60,000,000 permitted to be invested in Designated
Entities, Joint Venture Entities and Disqualified Subsidiaries pursuant to
Section 7.03(n) that is at such time available to be so invested; and".
(v) The first paragraph of Section 7.03(l) is amended and
restated in its entirety to read as follows:
"(l) (w) Investments (other than Guarantees or assumptions of debt
which are not Permitted Guarantees) by Holdings and its Subsidiaries in ANB
Entities, (x) commitments to lend to or invest in ANB Entities (excluding for
purposes of the calculation under this Section 7.03(l) commitments to purchase
Equity Interests of an ANB Entity to the extent that such obligations are by
their terms permitted to be satisfied with common stock of Holdings or Qualified
Preferred Stock (or any combination thereof)), (y) that portion of all put
obligations to purchase Equity Interests of ANB Entities that is not by its
terms permitted to be satisfied with common stock of Holdings or Qualified
Preferred Stock (or any combination thereof) (which portion shall not exceed
$15,000,000 in amount at any time) and (z) payments of or obligations to pay
management, origination or other similar fees in connection with any of the
foregoing, in an aggregate amount for all such Investments and other obligations
referred to in clauses (w), (x), (y) and (z) outstanding at any time not to
exceed in the aggregate $325,000,000 (which amount shall (i) be permanently
reduced by amounts of the type referred to in clause (z) once any such amount
has been paid to a Person other than a Loan Party and (ii) be calculated without
giving effect to any capitalized interest on obligations owed by any ANB Entity
to a Loan Party); provided that, except for Permitted ANB Unsecured Investments,
amounts invested pursuant to this Section 7.03(l) after July 22, 2005 must be in
the form of Investments consisting of loans to ANB 1 or ANB 1 License, or
Investments resulting in contractual obligations of ANB 1 or ANB 1 License to a
Loan Party, in each case that are secured by substantially all of the assets of
ANB 1 and ANB 1 License to the extent required by Section 6.24; provided,
further that, with respect to each Investment made or other obligation incurred
pursuant to this Section 7.03(l):".
(vi) Section 7.03(l)(A) is amended by (A) inserting
immediately before the phrase "future obligations to invest in or to lend"
the phrase "in respect of Permitted Guarantees and", (B) substituting for
the figure "$100,000,000" where it appears therein the figure
"$325,000,000", (C) substituting for the phrase "a Designated Entity or a
10
Disqualified Subsidiary" where it appears therein the phrase "an ANB
Entity" and (D) by inserting at the end of the second parenthetical
therein the following: "and any capitalized interest on obligations owed
by any ANB Entity to a Loan Party".
(vii) Section 7.03(l)(D) is amended by (A) inserting after the
figure "$100,000,000" where it appears in subclause (1) thereof the
following parenthetical: "(or, in the case of an Investment in ANB 1 or
ANB 1 License at a time when ANB 1 and ANB 1 License do not owe to any
Persons other than Loan Parties Indebtedness in an aggregate amount in
excess of $5,000,000, $50,000,000)"; (B) by inserting after the phrase
"Holdings and its Subsidiaries" where it appears in subclause (3) thereof
the following parenthetical: "(including any Designated Entities and Joint
Venture Entities that are required under GAAP to be consolidated with
Holdings and its Subsidiaries)" and (C) substituting for the phrase "the
Administrative Agent and the Lenders" where it appears therein the phrase
"the Administrative Agent".
(viii) Section 7.03(l) is further amended by (i) deleting the
word "and" from the end of subclause (C) thereof and (ii) adding the
following subclause (E) thereto:
"(E) (1) Each of the Loan Parties shall comply with the
requirements of Section 6.12(b) as they relate to any Equity Interests,
notes or other property received by such Loan Party in connection with any
Investment under this Section 7.03(l), and (2) any Investment consisting
of a loan or advance to an ANB Entity (x) shall be secured by a perfected
security interest in substantially all of the assets of such ANB Entity to
the extent required by Section 6.24 and (y) shall be evidenced by a
promissory note, and all such promissory notes shall constitute Pledged
Debt and shall, together with all related collateral, be pledged as
security for the Obligations of the holder thereof under the Loan
Documents and delivered to the Administrative Agent;".
(s) Section 7.03 is further amended by substituting for the
period at the end of clause (m) thereof the following: "; and" and by
inserting the following new clause (n):
"(n) (w) Investments (other than Guarantees or assumptions of debt
which are not Permitted Guarantees) by Holdings and its Subsidiaries in
Designated Entities, Joint Venture Entities or Disqualified Subsidiaries (other
than an ANB Entity), (x) commitments to lend to or invest in Designated
Entities, Joint Venture Entities or Disqualified Subsidiaries (other than an ANB
Entity) (excluding for purposes of the calculation under this Section 7.03(n)
commitments to purchase Equity Interests of a Designated Entity, Joint Venture
Entity or Disqualified Subsidiary to the extent that such obligations are by
their terms permitted to be satisfied with common stock of Holdings or Qualified
Preferred Stock (or any combination thereof)), (y) that portion of all put
obligations to purchase Equity Interests of Designated Entities, Joint Venture
Entities or Disqualified Subsidiaries (other than ANB Entities) that is not by
its terms permitted to be satisfied with common stock of Holdings or Qualified
Preferred Stock (or any combination thereof) (which portion shall not exceed
$15,000,000 in amount at any time) and (z) payments of or obligations to pay
management, origination or other similar fees in connection with any of the
foregoing, in an aggregate amount for all such Investments and other obligations
referred to in clauses (w), (x), (y) and (z) outstanding at any time not to
exceed in the aggregate
11
$60,000,000 (which amount shall (i) be permanently reduced by amounts of the
type referred to in clause (z) once any such amount has been paid to a Person
other than a Loan Party and (ii) be calculated without giving effect to any
capitalized interest on obligations owed by any Designated Entity, Joint Venture
Entity or Disqualified Subsidiary to a Loan Party); provided that, with respect
to each Investment made pursuant to this Section 7.03(n):
(i) Holdings or the relevant Subsidiary shall comply with the
requirements of Section 6.12(b) as they apply to any Equity Interests or
other property obtained by them in connection with such Investment;
(ii) the lines of business of the Person in which such
Investment is made shall be substantially one or more of the same lines of
business as described in Section 7.07;
(iii) such Investment shall not include or result in any
contingent liabilities that could reasonably be expected to be material to
the business, financial condition, operations or prospects of Holdings and
its Subsidiaries, taken as a whole (as determined in good faith by the
board of directors (or the persons performing similar functions) of
Holdings or such Subsidiary if the board of directors is otherwise
approving such transaction and, in each other case, by a Responsible
Officer), other than in respect of Permitted Guarantees and future
obligations to invest in or to lend to or purchase Equity Interests of a
Joint Venture Entity or a Designated Entity (other than ANB 1 or ANB 1
License) or a Disqualified Subsidiary if and to the extent that any such
entity becomes a Disqualified Subsidiary, and obligations to pay any
management, origination or other similar fees to third parties in
connection therewith, that do not in the aggregate when taken together
with all other outstanding Investments and obligations of a type referred
to in this Section 7.03(n) (excluding obligations to the extent that they
are permitted by their terms to be satisfied with common stock of Holdings
or Qualified Preferred Stock (or any combination thereof) and any
capitalized interest on obligations owed by any such Joint Venture Entity,
Designated Entity or Disqualified Subsidiary to a Loan Party) exceed
$60,000,000;
(iv) immediately before and immediately after giving effect to
such Investment, the Loan Parties shall have an aggregate amount of
$100,000,000 in any combination of available cash, Cash Equivalents held
by Loan Parties free and clear of all Liens other than the Liens created
under the Collateral Documents and bankers' or similar liens and unused
Revolving Credit Commitments which are then available to be drawn in
accordance with the requirements of Section 4.02;
(v) (1) immediately before and immediately after giving pro
forma effect to any such Investment, no Default shall have occurred and be
continuing and (2) immediately after giving effect to such Investment,
Holdings and its Subsidiaries (including any Designated Entities and Joint
Venture Entities that are required under GAAP to be consolidated with
Holdings and its Subsidiaries) shall be in pro forma compliance with all
of the covenants set forth in Section 7.10, such compliance to be
determined on the basis of the most recently ended Measurement Period for
which financial information has been delivered to the Administrative Agent
pursuant to Section
12
6.01(a) or (b) as though such Investment had been consummated as of the
first day of such Measurement Period; and
(vi) except for Investments of the type permitted by Section
7.05(s), (t), (u) or (v), and except for Permitted Guarantees, Holdings
shall have delivered to the Administrative Agent, on behalf of the
Lenders, at least five Business Days prior to the date on which any such
Investment is to be consummated, a certificate of a Responsible Officer,
in form and substance reasonably satisfactory to the Administrative Agent,
certifying that all of the requirements set forth in this clause (n) have
been satisfied or will be satisfied on or prior to the consummation of
such Investment and demonstrating the calculations used to determine such
compliance."
(t) Section 7.05 is amended as follows:
(i) by substituting for the phrase "former Designated Entity"
where it appears in the parenthetical to clause (f) thereof the phrase
"Disqualified Subsidiary";
(ii) by (A) substituting for the word "and" immediately before
subclause (y) of clause (i) thereof a comma and (B) adding to the end of
such clause (i) the following "and (z) of Equity Interests in any Joint
Venture Entity or Designated Entity".
(iii) by amending and restating the first parenthetical in
clause (l) thereof in its entirety to read as follows: "(when taken
together with any cash received in transactions under Section 7.05(k) or
Section 7.05(r))".
(iv) by (A) deleting the word "and" from the end of clause (l)
thereof, (B) substituting for the period at the end of clause (m) thereof
a semi-colon and (C) adding the following additional clauses to such
Section:
"(n) non-exclusive licenses or sublicenses of
intellectual property to ANB 1 License;
(o) Dispositions of inventory to ANB 1 License for a
sale price not less than the cost thereof for sale or use by
ANB 1 License in the ordinary course of business; provided
that to the extent that the consideration received from ANB 1
License is not cash, the amount of such non-cash consideration
shall constitute an Investment that is subject to the
limitations set forth in Section 7.03(l);
(p) Dispositions of property or equipment to ANB 1
License by Holdings or any of its Subsidiaries for fair market
value in connection with providing services to ANB 1 License
under a management or services agreement, provided the
aggregate fair market value for all such equipment and
property disposed of is not in excess of $5,000,000 in the
aggregate in any fiscal year; provided, further that to the
extent that the consideration received from ANB 1 License is
not cash, the amount of
13
such non-cash consideration shall constitute an Investment
that is subject to the limitations set forth in Section
7.03(l);
(q) subleases of cell sites, switch sites, retail sites
and administrative sites to ANB 1 License at rents not less
than the rents paid by Holdings or its Subsidiaries under the
corresponding primary leases for such sites, provided that (i)
the aggregate annual rents under all primary leases subject to
such subleases do not exceed $20,000,000 and (ii) any amount
not paid by ANB 1 or ANB 1 License in cash by such time as the
rent is due under the terms of the corresponding primary lease
shall constitute an Investment that is subject to the
limitations set forth in Section 7.03(l);
(r) Dispositions of property transferred in exchange
for, or contributed in respect of the issuance of, Equity
Interests or other consideration from any Joint Venture
Entity, Designated Entity or Disqualified Subsidiary in which
Holdings or any of its Subsidiaries makes an Investment of the
type permitted by Section 7.03(n); provided, that the amount
of the fair market value of the property so Disposed of shall
constitute an Investment that is subject to the limitations
set forth in Section 7.03(n); and provided, further, that any
cash received in a transfer or exchange under this Section
7.05(r) shall be deemed to be the fair market value of assets
Disposed of for purposes of Section 7.05(l);
(s) non-exclusive licenses or sublicenses of
intellectual property to any Joint Venture Entity, Designated
Entity or Disqualified Subsidiary in which Holdings or any of
its Subsidiaries makes an Investment of the type permitted by
Section 7.03(n);
(t) Dispositions of inventory to any Joint Venture
Entity, Designated Entity or Disqualified Subsidiary in which
Holdings or any of its Subsidiaries makes an Investment of the
type permitted by Section 7.03(n), for a sale price not less
than the cost thereof for sale or use by such Joint Venture
Entity, Designated Entity or Disqualified Subsidiary in the
ordinary course of business; provided that to the extent that
the consideration received from such Joint Venture Entity,
Designated Entity or Disqualified Subsidiary is not cash, the
amount of such non-cash consideration shall constitute an
Investment that is subject to the limitations set forth in
Section 7.03(n);
(u) Dispositions of property or equipment to any Joint
Venture Entity, Designated Entity or Disqualified Subsidiary
in which Holdings or any of its Subsidiaries makes an
Investment of the type permitted by Section 7.03(n), by
Holdings or any of its Subsidiaries for fair market value in
connection with providing services to such Joint Venture
Entity, Designated Entity or Disqualified Subsidiary under a
management or services agreement, provided the aggregate fair
market value for all such
14
equipment and property disposed of is not in excess of
$1,500,000 in the aggregate in any fiscal year; provided,
further that to the extent that the consideration received
from such Joint Venture Entity, Designated Entity or
Disqualified Subsidiary is not cash, the amount of such
non-cash consideration shall constitute an Investment that is
subject to the limitations set forth in Section 7.03(n); and
(v) subleases of cell sites, switch sites, retail sites
and/or administrative sites to any Joint Venture Entity,
Designated Entity or Disqualified Subsidiary in which Holdings
or any of its Subsidiaries makes an Investment of the type
permitted by Section 7.03(n), at rents not less than the rents
paid by Holdings or its Subsidiaries under the corresponding
primary leases for such sites, provided that (i) the aggregate
annual rents under all primary leases subject to such
subleases do not exceed $5,000,000 and (ii) any amount not
paid by such Joint Venture Entity, Designated Entity or
Disqualified Subsidiary in cash by such time as the rent is
due in under the terms of the corresponding primary lease
shall constitute an Investment that is subject to the
limitations set forth in Section 7.03(n);" and
(v) by substituting for the reference "Section 7.05(j)" where
it appears in the final proviso thereto the reference "Section 7.05(l)".
(u) Section 7.09 is amended by inserting the following proviso
at the end thereof, immediately before the period: " provided that clauses
(a)(ii), (a)(iii) and (b) shall not be deemed to refer to customary
covenants contained in any documents governing Indebtedness permitted to
be incurred under Section 7.02(a)(C) or (D) or Section 7.02(b)(B), so long
as such covenants contain express exceptions permitting the Guarantees of
the Obligations and the Liens created under the Loan Documents".
(v) Section 7.10(b) is amended by substituting for the ratio
"5.00:1.00" where it appears therein the ratio "5.50:1.00".
(w) Section 7.10(c)(ii) is amended by (i) substituting for the
ratio "3.00:1.00" where it appears in subclause (x) thereof the ratio
"3.50:1.00" and (ii) substituting for the ratio "2.50:1.00" where it
appears in subclause (x) thereof the ratio "3.00:1.00".
(x) A new Section 7.18 is added to the Credit Agreement, to
read as follows:
"7.18 ANB Entity Indebtedness. For so long as any Indebtedness
referred to in clause (a)(i) below remains outstanding, (a) the Borrower shall
not amend, modify or waive any term of the ANB Cricket Credit Agreement as in
effect on July 22, 2005 to permit ANB 1 or ANB 1 License to incur any
Indebtedness other than (i) Indebtedness owed to a Loan Party that is permitted
under Section 7.03(l) and (ii) additional Indebtedness not exceeding $20,000,000
in the aggregate for both of ANB 1 and ANB 1 License at any time outstanding,
(b) the Borrower
15
shall not assign any portion of its rights or duties under the ANB Cricket
Credit Agreement to any Person other than another Loan Party, except solely in
connection with the exercise of remedies under the ANB Cricket Credit
Agreement), (c) until ANB 1 License becomes a wholly-owned Subsidiary that is
not a Disqualified Subsidiary, the Borrower shall not cancel, discharge or
forgive any Indebtedness under the ANB Cricket Credit Agreement and (d) the
Borrower shall diligently enforce the provisions of the ANB Cricket Credit
Agreement by pursuing all legal remedies reasonably available to it in the case
of any material breach of the limitations on incurrence of third party
Indebtedness covenants under the ANB Cricket Credit Agreement by ANB 1 or ANB 1
License."
(y) Exhibit D to the Credit Agreement, "Form of Compliance
Certificate", is amended (a) as and to the extent necessary to conform to
the amendments to Section 7.10 set forth above and (b) to replace
references in paragraph 1 and Schedule 2 of such Exhibit D to "Holdings
and its Subsidiaries" with references to "Holdings and it Subsidiaries
(including any Designated Entities and Joint Venture Entities that are
required under GAAP to be consolidated with Holdings and its
Subsidiaries)".
SECTION 2. Amendment to the Security Agreement. The Security
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 3, hereby amended as follows:
(a) Section 25 of the Security Agreement is amended by
amending and restating the first parenthetical that appears in such
section in its entirety to read as follows: "(other than (1) sales of
Inventory in the ordinary course of business, (2) transfers of Inventory
to ANB 1 License for use or sale by ANB 1 License in the ordinary course
of business, to the extent that such transfers are permitted by the Credit
Agreement, (3) transfers to ANB 1 License of other property with a fair
market value not in excess of $5,000,000 in any fiscal year, to the extent
that such transfers are permitted by the Credit Agreement, (4) transfers
of Inventory to any Joint Venture, Designated Entity or Disqualified
Subsidiary in which Holdings or any of its Subsidiaries makes an
Investment of the type permitted by Section 7.03(n) of the Credit
Agreement, for use or sale by such Joint Venture, Designated Entity or
Disqualified Subsidiary in the ordinary course of business, to the extent
that such transfers are permitted by the Credit Agreement and (5)
transfers to any Joint Venture, Designated Entity or Disqualified
Subsidiary in which Holdings or any of its Subsidiaries makes an
Investment of the type permitted by Section 7.03(n) of the Credit
Agreement, of other property with a fair market value not in excess of
$1,500,000 in any fiscal year, to the extent that such transfers are
permitted by the Credit Agreement, in each case as to which the assignment
and security interest created hereunder shall be automatically released)".
16
SECTION 3. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written on the date on or before July 30,
2005 (the "AMENDMENT NO. 1 EFFECTIVE DATE") on which the Administrative Agent
shall have received the following:
(a) counterparts of this Amendment executed by the Borrower,
Holdings and the Required Lenders or, as to any of the Lenders, advice
satisfactory to the Agent that such Lender has executed this Amendment;
(b) the consent attached hereto executed by each Grantor; and
(c) such additional fees, if any, as have been separately
agreed in writing between the Administrative Agent and the Borrower,
together with the reasonable accrued fees and expenses of counsel to the
Administrative Agent.
The effectiveness of this Amendment is conditioned upon the accuracy of the
factual matters described herein. This Amendment is subject to the provisions of
Section 10.03 of the Credit Agreement.
SECTION 4. Representations and Warranties. Each of Holdings and the
Borrower hereby represents and warrants as follows:
(a) The representations and warranties of the Borrower and
each other Loan Party contained in each of Loan Documents, or which are
contained in any document furnished at any time under or in connection
herewith or therewith, are true and correct in all material respects on
and as of the Amendment No. 1 Effective Date, except to the extent that
such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct in all material respects as
of such earlier date, and except that the representations and warranties
contained in Section 5.05(a) and (b) shall be deemed to refer to the most
recent financial statements of Holdings and its Subsidiaries (including
any Designated Entities and Joint Venture Entities that are required under
GAAP to be consolidated with Holdings and its Subsidiaries as of the date
thereof) furnished pursuant to Section 6.01(a) and (b), respectively; and
(b) No Default exists, or would result from the occurrence of
the Amendment No. 1 Effective Date.
SECTION 5. Reference to and Effect on the Loan Documents. (a) On and
after the effectiveness of this Amendment, (i) 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 and (ii) each
reference in the Security Agreement to "this Agreement", "hereunder", "hereof"
or words of like import referring to the Security Agreement, and each reference
in the Credit Agreement, the Notes and each of the other Loan Documents to "the
Security Agreement", "thereunder",
17
"thereof" or words of like import referring to the Security Agreement, shall
mean and be a reference to the Security 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. Holdings hereby consents
to this Amendment and hereby agrees that each of the Parent Guaranty, the Credit
Agreement and the Security Agreement is, and shall continue to be, in full force
and effect and is hereby ratified and confirmed in all respects, and the
Collateral Documents to which Holdings is a party and all of the Collateral
described therein do, and shall continue to, secure the payment of all of the
Secured Obligations (in each case, as defined therein).
(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 6. Costs, 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 10.04 of the Credit Agreement.
SECTION 7. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
18
SECTION 8. 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.
CRICKET COMMUNICATIONS, INC.
By /s/ Xxxx X. Xxxxxx
--------------------------------
Title: Acting Chief Financial
Officer and Treasurer
LEAP WIRELESS INTERNATIONAL, INC.
By /s/ Xxxx X. Xxxxxx
--------------------------------
Title: Acting Chief Financial
Officer and Treasurer
BANK OF AMERICA, N.A.
as Agent and as Lender
By /s/ Xxxxx Xxxxxx
--------------------------------
Title: Vice President
BANK OF AMERICA, N.A.,
as Lender
By /s/ [Illegible]
--------------------------------
Title: SVP
Scotiabank (Ireland) Limited
as Lender
By: /s/ Xxxx X'Xxxxx
-------------------------------
Title: Xxxx X'Xxxxx
Senior Manager
CREDIT SUISSE, Cayman Islands Branch
(formerly CREDIT SUISSE FIRST
BOSTON, acting through its Cayman
Islands Branch), as Lender
By: /s/ X. Xxxxx
-------------------------------
Title: Xxxxxx X. Xxxxx
Director
/s/ Xxxxxx Xxxx
------------------------------
Title: Xxxxxx Xxxx
Associate
NATEXIS BANQUES POPULAIRES,
as Lender
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Title: VP & Group Manager
Xxxxxxx X. Xxxxx
Group Manager
/s/ Xxxxxxxxx X. Xxxxx
------------------------------
Title: Xxxxxxxxx X. Xxxxx
Vice President
DLIGRA43
as Lender
By: /s/ X. Xxxxxxxx
-------------------------------
Title: Loans Officer
Landmark CDO Limited
By Aladdin Capital Management, LLC
as Manager
as Lender
By: /s/ Xxxx X. X'Xxxxxx
-------------------------------
Name: Xxxx X. X'Xxxxxx
Title: Authorized Signatory
Landmark II CDO Limited
By Aladdin Capital Management, LLC
as Manager
as Lender
By: /s/ Xxxx X. X'Xxxxxx
------------------------------
Name: Xxxx X. X'Xxxxxx
Title: Authorized Signatory
Landmark III CDO Limited
By Aladdin Capital Management, LLC
as Manager
as Lender
By: /s/ Xxxx X. X'Xxxxxx
-------------------------------
Name: Xxxx X. X'Xxxxxx
Title: Authorized Signatory
Landmark V CDO Limited
By Aladdin Capital Management, LLC
as Manager
as Lender
By: /s/ Xxxx X. X'Xxxxxx
-------------------------------
Name: Xxxx X. X'Xxxxxx
Title: Authorized Signatory
Greyrock CDO LTD
By Aladdin Capital Management, LLC
as Manager
as Lender
By: /s/ Xxxx X. X'Xxxxxx
-------------------------------
Name: Xxxx X. X'Xxxxxx
Title: Authorized Signatory
19
WB Loan Funding 1, LLC
as Lender
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Title: Xxxxx X. Xxxxx
Associate
WB Loan Funding 2, LLC
as Lender
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Title: Xxxxx X. Xxxxx
Associate
AVL Loan Funding LLC for itself or
as agent for AVL2 Loan Funding LLC,
as Lender
By: /s/ Xxxxxxx Xxxx
-------------------------------
Title: Xxxxxxx Xxxx
As Attorney-in-Fact
American Express Certificate Company
By: American Express Asset
Management Group, Inc., as
Collateral Manager
as Lender
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing
Director
Centurion CDO II, Ltd.
By: American Express Asset
Management Group, Inc., as
Collateral Manager
as Lender
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director - Operations
Centurion CDO VI, Ltd.
By: American Express Asset
Management Group, Inc., as
Collateral Manager
as Lender
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director - Operations
Centurion CDO VII, Ltd.
By: American Express Asset
Management Group, Inc., as
Collateral Manager
as Lender
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director - Operations
Centurion CDO 8, Limited
By: American Express Asset
Management Group, Inc., as
Collateral Manager
as Lender
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director - Operations
Centurion CDO 9, Limited
By: American Express Asset
Management Group, Inc., as
Collateral Manager
as Lender
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director - Operations
IDS Life Insurance Company
By: American Express Asset
Management
Group, Inc., as Collateral Manager
as Lender
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing
Director
Sequils-Centurion V, Ltd.
By: American Express Asset
Management Group, Inc., as
Collateral Manager
as Lender
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Director - Operations
MILLCREEK CBNA LOAN FUNDING
as Lender
By: /s/ [Illegible]
-------------------------------
Title: Attorney In Fact
AVENUE CLO FUND, LIMITED,
as Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-------------------------------
Title: Xxxxxxx X'Xxxxxxx
Senior Portfolio
Manager
AVENUE CLO II, LIMITED,
as Lender
By: /s/ Xxxxxxx X'Xxxxxxx
------------------------------
Title: Xxxxxxx X'Xxxxxxx
Senior Portfolio
Manager
20
BABSON CLO LTD. 2003-I
BABSON CLO LTD. 2004-II
BABSON CLO LTD. 2005-I
SEABOARD CLO 2000 LTD.
By: Babson Capital Management LLC
as Collateral Manager as Lender
By: /s/ XXXXX X. XXXXX
-------------------------------
Title: Xxxxx X. Xxxxx, CFA
Managing Director
BALLANTYNE FUNDING LLC,
as Lender
By: /s/ M. [ILLEGIBLE] XXXXXXX
-------------------------------
Title: Assistant Vice
President
Bear Xxxxxxx Institutional Loan
Master Fund
By: Bear Xxxxxxx Asset Management,
Inc. as its attorney-in-fact
as Lender
By: /s/ [ILLEGIBLE]
-------------------------------
Title: Managing Director
Bear Xxxxxxx Loan Trust
By: Bear Xxxxxxx Asset Management,
Inc., as its attorney-in-fact
as Lender
By: /s/ [ILLEGIBLE]
-------------------------------
Title: Managing Director
Gallatin Funding I Ltd.
By: Bear Xxxxxxx Asset Management
Inc. as its Collateral Manager
as Lender
By: /s/ [ILLEGIBLE]
-------------------------------
Title: Managing Director
Grayston CLO 2001-01 Ltd.
By: Bear Xxxxxxx Asset Management
Inc. as its Collateral Manager
as Lender
By: /s/ [ILLEGIBLE]
-------------------------------
Title: Managing Director
Grayston CLO II 2004-1 LTD.
By: Bear Xxxxxxx Asset Management,
Inc., as its Collateral Manager
as Lender
By: /s/ [ILLEGIBLE]
-------------------------------
Title: Managing Director
LAGUNA FUNDING LLC,
as Lender
By: /s/ M. [ILLEGIBLE] XXXXXXX
-------------------------------
Title: Assistant Vice
President
Hanover Square CLO Ltd.
By: Blackstone Debt Advisors, L.P.
As Collateral Manager
as Lender
By: /s/ [ILLEGIBLE]
-------------------------------
Title: Managing Director
Loan Funding VI LLC, for
itself or as agent for
Corporate Loan Funding VI
LLC as Lender
By: /s/ [ILLEGIBLE]
-------------------------------
Title: Managing Director
Monument Park CDO Ltd.
By: Blackstone Debt Advisors L.P.
As Collateral Manager
as Lender
By: /s/ [ILLEGIBLE]
-------------------------------
Title: Managing Director
Union Square CDO Ltd.
By: Blackstone Debt Advisors L.P.
As Collateral Manager
as Lender
By: /s/ [ILLEGIBLE]
-------------------------------
Title: Managing Director
By: Callidus Debt Parners CLO Fund I
By: Its Collateral Manager
Callidus Capital Management, L
as Lender
By: /s/ XXXXX X. XXXXXXX
-------------------------------
Title: Xxxxx X. Xxxxxxx
Principal
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as Lender
By: /s/ XXXXXXX XXXX
-------------------------------
Title: Xxxxxxx Xxxx
Authorized Signatory
BLUE SQUARE FUNDING LIMITED SERIES 3
as Lender
By: /s/ XXXXX X. XXXXXX
-------------------------------
Title: Xxxxx X. Xxxxxx
Vice President
21
ELF Funding Trust I
By: Highland Capital Management, L.P., As Collateral Manager
By: Strand Advisors, Inc., Its General Partner
as Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxxxxx, Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
EMERALD ORCHARD LIMITED
as Lender
By: /s/ X. XXXXXXXX
----------------------------------------------------
Title: Loans Officer
Highland Floating Rate Advantage Fund
By: Highland Capital Management, L.P., As Collateral Manager
By: Strand Advisors, Inc., Its Investment Advisor
as Lender
By: /s/ XXX XXXXXXXXX
----------------------------------------------------
Title: Xxx Xxxxxxxxx, Senior Vice President
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
Highland Floating Rate Limited Liability Company
By: Highland Capital Management, L.P., As Collateral Manager
By: Strand Advisors, Inc., Its Investment Advisor
as Lender
By: /s/ XXX XXXXXXXXX
----------------------------------------------------
Title: Xxx Xxxxxxxxx, Senior Vice President
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
Highland Legacy Limited
By: Highland Capital Management, L.P., As Collateral Manager
By Strand Advisors, Inc., Its General Partner
as Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxxxxx, Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
Highland Loan Funding V Ltd.
By: Highland Capital Management, L.P., As Collateral Manager
By: Strand Advisors, Inc., Its General Partner
as Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxxxxx, Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
Highland Offshore Partners, L.P.
By: Highland Capital Management, L.P., As Collateral Manager
By: Strand Advisors, Inc., Its General Partner
as Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxxxxx, Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
Loan Funding IV LLC
By: Highland Capital Management, L.P., As Collateral Manager
By:
Strand Advisors, Inc., Its General Partner
as Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxxxxx, Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
Loan Funding VII LLC
By Highland Capital Management, L.P., As Collateral Manager
By: Strand Advisors, Inc., Its General Partner
as Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxxxxx, Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
Loan Star State Trust
By: Highland Capital Management, L.P., As Collateral Manager
By: Strand Advisors, Inc., Its Investment Advisor
as Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxxxxx, Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
Xxx Capital Funding L.P.
By: Highland Capital Management, L.P., As Collateral Manager
By: Strand Advisors, Inc., Its General Partner
as Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxxxxx, Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
22
Restoration Funding CLO, Ltd
By: Highland Capital Management, L.P., As Collateral Manager
By: Strand Advisors, Inc., Its General Partner
as Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxxxxx, Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, L.P.
Southfork CLO, Ltd.
By: Highland Capital Management, L.P., as Collateral Manager
By: Strand Advisors, Inc., Its General Partner
as Lender
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxxxxx, Treasurer
Strand Advisors, Inc., General Partner of
Highland Capital Management, X.X.
Xxxxxxxx CBNA Loan Funding LLC, for itself or as agent for
Bushnell CFPI Loan Funding LLC.,
as Lender
By: /s/ XXXXXXX XXXX
----------------------------------------------------
Title: Xxxxxxx Xxxx
As Attorney-In-Fact
STANWICH LOAN FUNDING LLC,
as Lender
By: /s/ M. [ILLEGIBLE] XXXXXXX
----------------------------------------------------
Title: Assistant Vice President
Xxxxxxx CBNA Loan Funding
LLC, for itself or as agent
for Xxxxxxx CFPI Loan
Funding LLC as Lender
By: /s/ XXXXXXX XXXX
----------------------------------------------------
Title: Xxxxxxx Xxxx
As Attorney-In-Fact
CROSS CREEK FUNDING LLC,
as Lender
By: /s/ M. [ILLEGIBLE] XXXXXXX
----------------------------------------------------
Title: Assistant Vice President
LightPoint CLO III, Ltd.
as an Investor
By: /s/ XXXXXXX X. XXX XXXX
----------------------------------------------------
Title: Xxxxxxx X. Xxx Xxxx
Managing Director
Premium Loan Trust I, Ltd.
as an Investor
By: /s/ XXXXXXX X. XXX XXXX
----------------------------------------------------
Title: Xxxxxxx X. Xxx Xxxx
Managing Director
Venture CDO 2002 Limited By
its investment advisor, MJX
Asset Management LLC, as
Lender
By: /s/ XXXX XXXXX
----------------------------------------------------
Name: Xxxx Xxxxx
Title: Director
Venture II CDO 2002 Limited
By its investment advisor,
MJX Asset Management LLC,
as Lender
By: /s/ XXXX XXXXX
----------------------------------------------------
Name: Xxxx Xxxxx
Title: Director
Venture III CDO Limited By
its investment advisor, MJX
Asset Management LLC, as
Lender
By: /s/ XXXX XXXXX
----------------------------------------------------
Name: Xxxx Xxxxx
Title: Director
Venture IV CDO Limitd By
its investment advisor, MJX
Asset Management LLC, as
Lender
By: /s/ XXXX XXXXX
----------------------------------------------------
Name: Xxxx Xxxxx
Title: Director
Vista Leveraged Income Fund
By its investment advisor, MJX Asset
Management LLC,
as Lender
By: /s/ XXXX XXXXX
----------------------------------------------------
Name: Xxxx Xxxxx
Title: Director
23
[HarbourView CLO IV, Ltd.],
as Lender
By: /s/ XXXX XXXXXXX
----------------------------------------------------
Title: Xxxx Xxxxxxx
AVP
[HarbourView CLO V, Ltd.],
as Lender
By: /s/ XXXX XXXXXXX
----------------------------------------------------
Title: Xxxx Xxxxxxx
AVP
[Xxxxxxxxxxx Senior Floating Rate Fund],
as Lender
By: /s/ XXXX XXXXXXX
----------------------------------------------------
Title: Xxxx Xxxxxxx
AVP
Sankaty Advisors, LLC as Collateral Manager
for XXXXX POINT CLO, LTD., as Term Lender
as Lender
By: /s/ XXXXX X. XXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxx
Managing Director
Portfolio Manager
Sankaty Advisors, LLC as Collateral Manager for Castle Hill
I - INGOTS, Ltd., as Term Lender
as Lender
By: /s/ XXXXX X. XXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxx
Managing Director
Portfolio Manager
Sankaty Advisors, LLC as Collateral Manager for Castle Hill
III CLO, Limited, as Term Lender
as Lender
By: /s/ XXXXX X. XXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxx
Managing Director
Portfolio Manager
HARBOUR TOWN FUNDING LLC,
as Lender
By: /s/ M. [ILLEGIBLE] XXXXXXX
----------------------------------------------------
Title: Assistant Vice President
Katonah II, Ltd., by Sankaty Advisors LLC
as Sub-Advisors
as Lender
By: /s/ XXXXX X. XXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxx
Managing Director
Portfolio Manager
Sankaty Advisors, LLC as Collateral Manager for Loan Funding
XI LLC, as Term Lender
as Lender
By: /s/ XXXXX X. XXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxx
Managing Director
Portfolio Manager
LONG LANE MASTER TRUST IV,
as Lender
By: /s/ [ILLEGIBLE]
----------------------------------------------------
Title: Authorized Agent
Sankaty Advisor, LLC as Collateral Manager for Race Point II
CLO, Limited, as Term Lender
as Lender
By: /s/ XXXXX X. XXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxx
Managing Director
Portfolio Manager
Sankaty Advisor, LLC as Collateral Manager for Race Point
CLO, Limited, as Term Lender
as Lender
By: /s/ XXXXX X. XXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxx
Managing Director
Portfolio Manager
Sankaty High Yield Partners II, L.P.
as Lender
By: /s/ XXXXX X. XXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxx
Managing Director
Portfolio Manager
Sankaty High Yield Partners III, L.P.
as Lender
By: /s/ XXXXX X. XXXXX
----------------------------------------------------
Title: Xxxxx X. Xxxxx
Managing Director
Portfolio Manager
SunAmerica Life Insurance Company
By: AIG Global Investment Corp., Inc.
its Investment Advisor,
as Lender
By: /s/ W. XXXXXXX XXXXXX
----------------------------------------------------
Title: W. Xxxxxxx Xxxxxx
Vice President
SunAmerica Senior Floating Rate Fund
By: AIG Global Investment Corp., Inc.
its Investment Sub-Advisor,
as Lender
By: /s/ W. XXXXXXX XXXXXX
----------------------------------------------------
Title: W. Xxxxxxx Xxxxxx
Vice President
Galaxy CLO 1999-1, Ltd.
By: AIG Global Investment Corp., Inc.
its Collateral Manager,
as Lender
By: /s/ W. XXXXXXX XXXXXX
----------------------------------------------------
Title: W. Xxxxxxx Xxxxxx
Vice President
Galaxy CLO 2003-1, Ltd.
By: AIG Global Investment Corp., Inc.
its Investment Advisor,
as Lender
By: /s/ W. XXXXXXX XXXXXX
----------------------------------------------------
Title: W. Xxxxxxx Xxxxxx
Vice President
Galaxy IV CLO, LTD
By: AIG Global Investment Corp., Inc.
its Investment Advisor
as Lender
By: /s/ W. XXXXXXX XXXXXX
----------------------------------------------------
Title: W. Xxxxxxx Xxxxxx
Vice President
Galaxy V CLO, LTD
By: AIG Global Investment Corp., Inc.
its Investment Advisor,
as Lender
By: /s/ W. XXXXXXX XXXXXX
----------------------------------------------------
Title: W. Xxxxxxx Xxxxxx
Vice President
24
