CONSENT AND FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
EXHIBIT 10
CONSENT AND FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS CONSENT AND FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LOAN
AGREEMENT, dated as of the 18th day of July, 2003 (this “Amendment”), is made by and among AMERICAN TOWER CORPORATION, a Delaware corporation (the “Parent”), AMERICAN TOWER, L.P., a Delaware limited partnership (“AT LP”), AMERICAN TOWERS, INC., a Delaware corporation (“AT Inc.”), TOWERSITES MONITORING, INC., a Delaware corporation (“Towersites”), AMERICAN TOWER, LLC, a Delaware limited liability company (“AT LLC”) and AMERICAN TOWER INTERNATIONAL, INC., a Delaware corporation (collectively, with AT LP, AT Inc., Towersites and AT LLC, the “Borrowers”), VERESTAR, INC., a Delaware corporation (“Verestar”), THE FINANCIAL INSTITUTIONS SIGNATORIES HERETO and TORONTO DOMINION (TEXAS), INC., as administrative agent (in such capacity, the “Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Borrowers, Verestar, the Lenders (as defined therein), the Issuing Bank (as defined therein) and the Administrative Agent are all parties to that certain Second Amended and Restated Loan Agreement dated as of February 21, 2003 (as hereafter amended, modified, restated and supplemented from time to time, the “Loan Agreement”); and
WHEREAS, the Borrowers have requested amendments to certain provisions of the Loan Agreement, and, subject to the terms and conditions set forth herein, the Lenders are willing to amend certain provisions of the Loan Agreement as more specifically set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree that all capitalized terms used and not defined herein shall have the meanings ascribed to such terms in the Loan Agreement, and further hereby agree as follows:
1. Consent. The Borrowers have informed the Administrative Agent and the Lenders that the Parent intends to sell at least ninety percent (90%) of the ownership interests of Verestar (the “Verestar Sale”). Furthermore, the Borrowers have informed the Administrative Agent and the Lenders that the potential purchasers of such ownership interests in Verestar may make loans to Verestar for operating expenses prior to the consummation of the Verestar Sale, which loans shall be secured by a first priority security interest in the assets of the Verestar Entities. In connection therewith and pursuant to the request of the Borrowers, the Lenders hereby agree that, notwithstanding anything to the contrary in this Amendment, the Loan Agreement, Sections 2, 3, and 4 of the Seventh Amendment to the Prior Loan Agreement or any other Loan Document, the guaranties provided by the Verestar Entities in favor of the Administrative Agent for the benefit of the Lenders (including, without limitation, the Verestar Guaranty (as defined in Section 8(b) hereof), the Verestar Subsidiary Guaranties (as defined in
Section 8(e) hereof), Sections 2, 3 and 4 of the Seventh Amendment to the Prior Loan Agreement and Section 11.20 of the Loan Agreement) and the Liens on the assets of the Verestar Entities (other than the Liens on the ownership interests of Verestar held by the Parent) in favor of the Administrative Agent for the benefit of the Lenders (including, without limitation, the Liens created pursuant to the Pledge Agreement dated February 6, 2000 executed by Verestar (as amended or modified, the “Verestar Pledge Agreement”), the Security Agreement dated January 6, 2000 executed by Verestar (as amended or modified, the “Verestar Security Agreement”) and the Subsidiary Security Agreement dated October 17, 2002 executed by Verestar International, Inc. (as amended or modified, the “Verestar International Security Agreement”) and any obligations of any Verestar Entity thereunder) shall be released (and the Verestar Guaranty, the Verestar Subsidiary Guaranties, the Verestar Pledge Agreement, the Verestar Security Agreement and the Verestar International Security Agreement shall terminate) upon receipt by the Administrative Agent of evidence reasonably satisfactory to the Administrative Agent of receipt by Verestar of the proceeds of such advances from the purchasers and repayment of any loans from the Borrowers to the Verestar Entities. Furthermore, notwithstanding Sections 2, 3 and 4 of the Seventh Amendment to the Prior Loan Agreement and Section 11.20 of the Loan Agreement, the Lenders hereby (a) consent to the incurrence by Verestar of the Indebtedness in connection with such purchaser advances (and advances after the date hereof) and (b) upon receipt by the Administrative Agent of evidence of the consummation of the Verestar Sale on terms and conditions reasonably satisfactory to the Administrative Agent, release the Verestar Entities from their remaining obligations under Sections 2, 3, and 4 of the Seventh Amendment to the Prior Loan Agreement and Section 11.20 of the Loan Agreement, Verestar Entities. For the avoidance of doubt, the second and third to last sentences of Section 3(a) of the Seventh Amendment to the Prior Loan Agreement shall continue to apply solely with respect to the sale of ownership interests of Verestar held by the Parent and the Parent Pledge Agreement (and references therein to stock and Capital Stock shall be deemed to include stock or Capital Stock or any other type of ownership interest into which such stock or Capital Stock is converted).
2. Amendments to Loan Agreement.
(a) Amendments to Article 1. Section 1.1 of the Loan Agreement, Definitions, is hereby amended by inserting the following new definitions of “First Amendment” and “Trigger Event” in proper alphabetical order:
“‘First Amendment’ shall mean that certain Consent and First Amendment to this Agreement dated as of July 18, 2003 by and among the Borrowers, the Parent, Verestar, Inc., the Lenders party thereto and the Administrative Agent.”
“‘Trigger Event’ shall mean the occurrence of any of the following events: (i) an acceleration of the Notes as provided in Section 8.2(a) or (b) hereof, (ii) an Event of Default under Section 8.1(b) hereof, (iii) an Event of Default under Section 8.1(j)(i) hereof in respect of any other Indebtedness of the Parent, any Borrower or any of the Restricted Subsidiaries in an aggregate principal amount exceeding $100,000,000.00, or (iv) the receipt of notice from or on behalf of the holders of any other Indebtedness of the Parent, any Borrower or any of the Restricted Subsidiaries in an aggregate principal
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amount exceeding $100,000,000.00 that there has occurred an event or condition of the type specified in Section 8.1(j)(ii) hereof, which notice is sufficient to constitute a valid notice of default under the documentation in respect of such Indebtedness.”
(b) Amendment to Section 2.5(d). Section 2.5(d) of the Loan Agreement, Mandatory Commitment Reductions, Reduction from Sale of Debt Instruments, is hereby amended by deleting the reference to “Section 2.7(b)(v)” therein and substituting in lieu thereof “Section 2.7(b)(v)(A).”
(c) Amendments to Section 2.7(b)(v).
(i) Section 2.7(b)(v) of the Loan Agreement, Prepayments and Repayments, Sale of Debt Instruments, is hereby amended by inserting “(A)” after “(v) Sale of Debt Instruments” and by deleting each reference to “Section 2.7(b)(v)” therein and substituting in lieu thereof “Section 2.7(b)(v)(A).”
(ii) Section 2.7(b)(v) of the Loan Agreement, Prepayments and Repayments, Sale of Debt Instruments, is hereby further amended by inserting the following new Section 2.7(b)(v)(B) at the end of Section 2.7(b)(v):
“(B) Other Indebtedness. From July 18, 2003 through the date on which the Parent issues in the aggregate (when added to prior issuances under Section 8.1(p)(ix) hereunder) $200,000,000.00 of Indebtedness under Section 8.1(p)(ix) hereof, no later than the fifth (5th) Business Day following the issuance of any such Indebtedness, the Borrowers shall make a repayment of the Loans in an amount equal to fifty percent (50%) of the net cash proceeds of such Indebtedness which amount shall be applied to the Loans and the Revolving Loan Commitment on a pro rata basis based upon the Term Loan A Loans and the Term Loan B Loans then outstanding and the Revolving Loan Commitment in effect on such date (amounts applied to reduce the Revolving Loan Commitment shall permanently reduce the Revolving Loan Commitment and the Borrowers shall repay the Revolving Loans then outstanding by a corresponding amount), which reductions shall be applied to the remaining commitment reductions in direct order of maturity and amounts applied to the Term Loan A Loans and the Term Loan B Loans shall be applied to the remaining repayments for such Loans on a pro rata basis; provided, however, the Borrowers shall be required to give the Lenders holding Term Loan B Loans notice of such repayment no later than four (4) Business Days prior to the date of such repayment and such Lenders, in their sole discretion, may reject any such repayment and shall be deemed to have rejected such repayment unless they deliver to the Administrative Agent on or prior to the second Business Day immediately preceding such repayment a written notice electing to receive such repayment (any such amounts so rejected shall be applied pro rata to the Loans and the Revolving Loan Commitment in accordance with the preceding provisions of this Section 2.7(b)(v)(B) (without taking into account the Term Loan B Loans of any Lender or Lenders that so rejected
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repayment)). From and after the date on which the Parent issues $200,000,000.00 of Indebtedness under Section 8.1(p)(ix) hereof, to the extent that the Parent issues any Indebtedness in excess of $200,000,000.00 pursuant to Section 8.1(p)(ix) hereof, the net cash proceeds of which are used to repay the Loans, such repayments shall be used to permanently repay the Loans and reduce the Revolving Loan Commitment on a pro rata basis based upon the Term Loan A Loans and the Term Loan B Loans then outstanding and the Revolving Loan Commitment in effect on such date (amounts applied to reduce the Revolving Loan Commitment shall permanently reduce the Revolving Loan Commitment and the Borrowers shall repay the Revolving Loans then outstanding by a corresponding amount), which reductions shall be applied to the remaining commitment reductions on a pro rata basis and amounts applied to the Term Loan A Loans and the Term Loan B Loans shall be applied to the remaining repayments for such Loans on a pro rata basis.”
(d) Amendments to Article 7.
(i) Amendments to Section 7.6(f). Section 7.6(f) of the Loan Agreement, Investments and Acquisitions, is hereby further amended by deleting such section in its entirety and substituting in lieu thereof the following:
“(f) all Investments made by the Borrowers and their Subsidiaries in the Verestar Entities on or prior to October 18, 2002; provided, that after October 18, 2002, so long as no Default then exists or would be caused thereby, the Borrowers and their Subsidiaries may make secured loans (but not investments) in an aggregate amount, together with any distributions made to the Parent pursuant to Section 7.7(f) hereof, at any one time outstanding not to exceed $25,000,000.00 to one or more Verestar Entities so long as the notes evidencing such loans are pledged to the Administrative Agent as Collateral. Notwithstanding the foregoing, the Borrowers shall not, and shall not permit their Subsidiaries to, make further Investments in the Verestar Entities after the execution of the purchase agreement for the Verestar Sale (as defined in the First Amendment) other than through the proceeds of distributions to the Parent permitted pursuant to Section 7.7(f) hereof.”
(ii) Amendment to Section 7.7. Section 7.7 of the Loan Agreement, Restricted Payments, is hereby amended by deleting such section in its entirety and substituting in lieu thereof the following:
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“Section 7.7 Restricted Payments. The Borrowers shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly declare or make any Restricted Payment; provided, however, that so long as no Default or Event of Default hereunder then exists or would be caused thereby, the Borrowers may make, (a) subject to Section 2.7(b)(iv) hereof, cash distributions in an aggregate amount for all Borrowers not to exceed fifty percent (50%) of Excess Cash Flow for the immediately preceding calendar year, on or after April 15th of each calendar year commencing on April 15, 2004; (b) distributions to the Parent to make scheduled principal and interest payments on the Convertible Notes and the Senior Notes due 2009 and any refinancings thereof that would not cause a Default under Section 8.1(p) hereof; (c) on or prior to June 30, 2004, distributions to the Parent to pay, repurchase, redeem or otherwise retire all or any portion of the Parent’s 2.25% Convertible Notes due 2009; provided that (i) the amount of any such distributions shall be no greater than the face amount of the Parent’s 2.25% Convertible Notes due 2009 plus accrued interest thereon and (ii) such distributions may only be made to the extent that funds are available therefor in the Proceeds Account; (d) on or prior to June 30, 2004, distributions to the Parent to enable the Parent to pay, repurchase, redeem or otherwise retire all or any portion of the Convertible Notes (other than the Parent’s 2.25% Convertible Notes due 2009) and the Senior Notes due 2009; provided that any payment, repurchase, redemption or other retirement of the Convertible Notes (other than the Parent’s 2.25% Convertible Notes due 2009) and the Senior Notes due 2009 shall be at a price no greater than 103% of the face amount thereof plus accrued interest thereon; provided further that any distributions made pursuant to this Section 7.7(d) (x) shall not exceed $217,000,000.00 minus any Restricted Payments made pursuant to Section 7.7(c) hereof and this Section 7.7(d) minus the amount (if any) necessary to satisfy any obligation of the Parent to repurchase the Parent’s 2.25% Convertible Notes due 2009 in full as of October 22, 2003, and (y) may only be made to the extent that funds are available therefor in the Proceeds Account; (e) distributions to the Parent to make scheduled principal and interest payments on the Indebtedness permitted under Section 8.1(p)(ix) hereof; and (f) distributions to the Parent to make payments in an aggregate amount not to exceed $10,000,000.00 (which amounts shall be deemed to be Investments for the purposes of Section 7.6(f) hereof) in satisfaction of the Guaranties of the Parent of the obligations of the Verestar Entities set forth on Schedule 1 attached to the First Amendment.”
(e) Amendments to Article 8.
(i) Amendment to Section 8.1(p). Section 8.1(p) of the Loan Agreement, Events of Default, is hereby amended by deleting such Section in its entirety and substituting in lieu thereof the following:
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“(p) the Parent shall incur or permit to remain outstanding any Indebtedness for Money Borrowed other than (i) the Convertible Notes, (ii) the Senior Notes due 2009, (iii) any refinancing of the foregoing the net cash proceeds of which do not exceed the outstanding principal amount of the Indebtedness being refinanced on the date of such refinancing and otherwise having terms no less favorable in any material respect to the Lenders than the Indebtedness being refinanced, (iv) that certain Guaranty Agreement dated as of February 10, 2000 made by the Parent in favor of TV Azteca and Television Azteca, S.A. de C.V., a sociedad anonima de capital variable organized under the laws of Mexico, (v) that certain Guaranty dated November 30, 1999 made by the Parent in favor of ICG Holdings, (vi) that certain guaranty made by the Parent of the Indebtedness under the 2003 Senior Subordinated Discount Notes, (vii) any guaranty by the Parent of the Obligations, (viii) Indebtedness under any permitted refinancing of the 2003 Senior Subordinated Discount Notes and (ix) (A) subject to compliance with Section 2.7(b)(v)(B) hereof, additional Indebtedness provided that (1) such Indebtedness shall have terms no less favorable in any material respect to the Lenders than the Indebtedness described in clauses (i) or (ii) hereof, (2) except to the extent applied pursuant to Section 2.7(b)(v)(B) hereof or promptly used to refinance Indebtedness of the Parent, the net proceeds of such Indebtedness shall be held in a blocked account on which the Administrative Agent shall have a Lien for the benefit of the Lenders and shall be used solely to refinance Indebtedness of the Parent or the Loans, and (3) any portion of the net proceeds of such Indebtedness which is in the blocked account on the earlier of (i) the date set forth in a notice delivered by the Borrowers to the Administrative Agent within five (5) Business Days after the date of the incurrence of such Indebtedness (which date in no event shall extend beyond the sixtieth (60th) day following the incurrence of such Indebtedness) and (ii) the occurrence of a Trigger Event shall be paid to the Administrative Agent and applied to the Loans as required by Section 2.7(b)(v)(B) hereof (and shall be treated as an equity contribution to the Borrowers), and (B) any refinancing of the foregoing the net cash proceeds of which do not exceed the outstanding principal amount of the Indebtedness being refinanced on the date of such refinancing and otherwise having terms no less favorable in any material respect to the Lenders than the Indebtedness being refinanced;”
(ii) Amendment to Section 8.1(q). Section 8.1(q) of the Loan Agreement, Events of Default, is hereby amended by deleting such subsection in its entirety and substituting in lieu thereof the following:
“(q) the Parent shall sell or issue any Capital Stock (other than net proceeds in an amount not to exceed $2,000,000.00 in the aggregate after January 6, 2000 from the sale of securities in connection with any employee stock option plan of the Parent or any of its Subsidiaries), the net cash proceeds of which are not contributed as equity to the Borrowers, other than Capital Stock issued in connection with an Acquisition permitted hereunder; provided that the foregoing shall not apply to the sale or issuance of any Capital Stock by the Parent if (A) the net cash proceeds of such issuance are deposited into and held in a blocked account on which the Administrative Agent shall have a Lien for the benefit of the Lenders, (B) the net cash proceeds thereof are used
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within twelve months of the date of such issuance to repay any outstanding Indebtedness of the Parent or the Borrowers and (C) any unused net cash proceeds on the first Business Day twelve months after such sale or issuance are contributed as equity to the Borrowers.”
3. No Other Amendments. Except for the amendments set forth above, the text of the Loan Agreement and all other Loan Documents shall remain unchanged and in full force and effect. No amendment, waiver or consent by the Administrative Agent, the Issuing Bank or the Lenders under the Loan Agreement or any other Loan Document is granted or intended except as expressly set forth herein, and the Administrative Agent, the Issuing Bank and the Lenders expressly reserve the right to require strict compliance in all other respects (whether or not in connection with any Requests for Advance). Except as set forth herein, the amendments agreed to herein shall not constitute a modification of the Loan Agreement or any of the other Loan Documents, or a course of dealing with the Administrative Agent, the Issuing Bank and the Lenders at variance with the Loan Agreement or any of the other Loan Documents, such as to require further notice by the Administrative Agent, the Issuing Bank, the Lenders or the Majority Lenders to require strict compliance with the terms of the Loan Agreement and the other Loan Documents in the future.
4. Conditions Precedent. The effectiveness of this Amendment is subject to:
(a) receipt by the Administrative Agent of duly executed signature pages to this Amendment from the Majority Lenders; and
(b) the representations and warranties contained in Article 4 of the Loan Agreement and contained in the other Loan Documents remaining true and correct as of the date hereof, both before and after giving effect to this Amendment, except to the extent previously fulfilled in accordance with the terms of the Loan Agreement or such other Loan Document, as applicable, or to the extent relating specifically to the earlier date. No Default or Event of Default now exists or will be caused hereby.
5. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same instrument.
6. Governing Law. This Amendment shall be construed in accordance with and governed by the laws of the State of New York.
7. Severability. Any provision of this Amendment which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction.
8. Verestar Entities’ Acknowledgement.
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(a) The Parent, the Borrowers and Verestar hereby represent and warrant that there are no obligations of Verestar with respect to which any of the Parent or the Borrowers are obligors or guarantors as of the date hereof except as disclosed on Schedule 1 attached hereto. The Majority Lenders hereby acknowledge and agree that the guaranties existing as of the date hereof set forth on Schedule 1 attached hereto shall constitute permitted Guaranties under the Loan Agreement.
(b) Verestar hereby confirms that the Borrower’s Guaranty dated as of March 26, 2001 to which Verestar is a party (the “Verestar Guaranty”) will, subject to the terms and conditions hereof, continue to guarantee to the fullest extent possible in accordance with the Verestar Guaranty the payment and performance of all “Guarantied Obligations” under the Verestar Guaranty, including without limitation the payment and performance of all Obligations of the Borrowers now or hereafter existing under or in respect of the Loan Agreement and the Notes defined therein.
(c) Verestar acknowledges and agrees that the Verestar Guaranty and any other Loan Documents to which it is a party or otherwise bound shall, subject to the terms and conditions hereof, continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable, subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, and shall not be impaired or limited by the execution or effectiveness of this Amendment. Verestar represents and warrants that all representations and warranties contained in the Loan Agreement, this Amendment, the Verestar Guaranty and any other Loan Documents to which it is a party or otherwise bound are true, correct and complete in all material respects on and as of the date hereof to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date.
(d) Verestar acknowledges and agrees that nothing in the Loan Agreement, this Amendment or any other Loan Document shall be deemed to require the consent of Verestar to any future amendments to the Loan Agreement.
(e) Each of Verestar International, Inc. and Verestar Networks, Inc. are collectively referred to herein as the “Verestar Subsidiary Guarantors”, and the Subsidiary Guaranties executed by the Verestar Subsidiary Guarantors are collectively referred to herein as the “Verestar Subsidiary Guaranties”.
(f) Each Verestar Subsidiary Guarantor hereby acknowledges that it has reviewed the terms and provisions of the Loan Agreement and this Amendment. Each Verestar Subsidiary Guarantor hereby confirms that the Verestar Subsidiary Guaranty to which it is a party or otherwise bound will, subject to the terms and conditions hereof, continue to guarantee, as the case may be, to the fullest extent possible in accordance with such Verestar Subsidiary Guaranty the payment and performance of all “Guarantied Obligations” under each of the Verestar Subsidiary Guaranties, as the case may be (in each case as such term is defined in the
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applicable Verestar Subsidiary Guaranty), including without limitation the payment and performance of all Obligations of the Borrowers now or hereafter existing under or in respect of the Loan Agreement and the Notes defined therein.
(g) Each Verestar Subsidiary Guarantor acknowledges and agrees that any of the Loan Documents to which it is a party or otherwise bound shall, subject to the terms and conditions hereof, continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable, subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, and shall not be impaired or limited by the execution or effectiveness of this Amendment. Each Verestar Subsidiary Guarantor represents and warrants that all representations and warranties contained in the Loan Agreement, this Amendment and any other Loan Document to which it is a party or otherwise bound are true, correct and complete in all material respects on and as of the date hereof to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date.
(h) Each Verestar Subsidiary Guarantor acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Amendment, such Verestar Subsidiary Guarantor is not required by the terms of the Loan Agreement or any other Loan Document to consent to the amendments of the Loan Agreement effected pursuant to this Amendment and (ii) nothing in the Loan Agreement, this Amendment or any other Loan Document shall be deemed to require the consent of such Verestar Subsidiary Guarantor to any future amendments to the Loan Agreement.
9. Guarantor Acknowledgment.
(a) Each of ATC GP, Inc., ATC LP, Inc., ATS/PCS, LLC, New Loma Communications, Inc., ATC Tower Services, Inc., American Tower PA LLC, UNIsite, Inc., American Tower Delaware Corporation, American Tower Management, Inc., ATC Midwest, LLC, Telecom Towers, L.L.C., Shreveport Tower Company, American Tower Trust #1, ATC South LLC, MHB Tower Rentals of America, LLC, ATC International Holding Corp., American Tower Trust #2, Xxxxx Iron & Steel Co., Inc., Carolina Towers, Inc., ATC Mexico Holding Corp., ATC MexHold, Inc., ATC South America Holding Corp., American Tower Corporation de Mexico S. de X.X. de C.V., MATC Celular S. de X.X. de C.V., MATC Digital S. de X.X. de C.V., MATC Servicios, S. de X.X. de C.V. and Towers of America, L.L.L.P. are collectively referred to herein as the “Guarantors,” and the Guaranties executed by the Guarantors are collectively referred to herein as the “Guaranties.”
(b) Each Guarantor hereby acknowledges that it has reviewed the terms and provisions of the Loan Agreement and this Amendment. Each Guarantor hereby confirms that the Guaranty to which it is a party or otherwise bound will continue to guarantee, as the case may be, to the fullest extent possible in accordance with such Guaranty the payment and performance of all “Guarantied Obligations” under each of the Guaranties, as the case may be (in
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each case as such term is defined in the applicable Guaranty), including without limitation the payment and performance of all Obligations of the Borrowers now or hereafter existing under or in respect of the Loan Agreement and the Notes defined therein.
(c) Each Guarantor acknowledges and agrees that any of the other Loan Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable, subject, as to enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, and shall not be impaired or limited by the execution or effectiveness of this Amendment. Each Guarantor represents and warrants that all representations and warranties contained in the Loan Agreement, this Amendment and any other Loan Documents to which it is a party or otherwise bound are true, correct and complete in all material respects on and as of the date hereof to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date.
(d) Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Amendment, such Guarantor is not required by the terms of the Loan Agreement or any other Loan Document to consent to the amendments of the Loan Agreement effected pursuant to this Amendment and (ii) nothing in the Loan Agreement, this Amendment or any other Loan Document shall be deemed to require the consent of such Guarantor to any future amendments to the Loan Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment or caused it to be executed by their duly authorized officers, all as of the day and year first above written.
BORROWERS:
| AMERICAN TOWER, L.P., a Delaware limited partnership | ||
| By ATC GP INC., its General Partner | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| AMERICAN TOWERS, INC., a Delaware corporation | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| TOWERSITES MONITORING, INC., a Delaware corporation | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| AMERICAN TOWER INTERNATIONAL, INC., a Delaware corporation | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Treasurer | ||
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| AMERICAN TOWER, LLC, a Delaware limited liability company | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
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| PARENT: |
AMERICAN TOWER CORPORATION, a Delaware corporation | |||||||
| By | /s/ XXXXXXX X. XXXXXX | |||||||
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||||||||
| VERESTAR: |
VERESTAR, INC., a Delaware corporation | |||||||
| By | /s/ XXXXXXX X. X’XXXXX | |||||||
| Name: Xxxxxxx X. X’Xxxxx Title: President and COO | ||||||||
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| VERESTAR SUBSIDIARY GUARANTORS: |
VERESTAR INTERNATIONAL, INC. | |||||||
| By | /s/ XXXXXXX X. XXXX | |||||||
| Name: Xxxxxxx X. Xxxx Title: Assistant Secretary | ||||||||
| VERESTAR NETWORKS, INC. | ||||||||
| By | /s/ XXXXXXX X. XXXX | |||||||
| Name: Xxxxxxx X. Xxxx Title: Assistant Secretary | ||||||||
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GUARANTORS:
| ATC GP, INC. | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| ATC LP, INC. | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| ATS/PCS, LLC | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| NEW LOMA COMMUNICATIONS, INC. | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| ATC TOWER SERVICES, INC. | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| AMERICAN TOWER PA LLC | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
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| UNISITE, INC. | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| AMERICAN TOWER DELAWARE CORPORATION | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| AMERICAN TOWER MANAGEMENT, INC. | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| ATC MIDWEST, LLC | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| TELECOM TOWERS, LLC | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| SHREVEPORT TOWER COMPANY | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
16
| AMERICAN TOWER TRUST #1 | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Treasurer | ||
| ATC SOUTH LLC | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| MHB TOWER RENTALS OF AMERICA, LLC | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| ATC INTERNATIONAL HOLDING CORP. | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer & Treasurer | ||
| AMERICAN TOWER TRUST #2 | ||
| By |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Treasurer | ||
| XXXXX IRON & STEEL CO., INC. | ||
| By |
/s/ XXXXXXX X. XXXX | |
| Name: Xxxxxxx X. Xxxx Title: Assistant Secretary | ||
17
| CAROLINA TOWERS, INC. | ||
| By |
/s/ XXXXXXX X. XXXX | |
| Name: Xxxxxxx X. Xxxx Title: Assistant Secretary | ||
| ATC MEXICO HOLDING CORP. | ||
| By |
/s/ XXXXXXX X. XXXX | |
| Name: Xxxxxxx X. Xxxx Title: Chief Financial Officer | ||
| ATC MEXHOLD, INC. | ||
| By |
/s/ XXXXXXX X. XXXX | |
| Name: Xxxxxxx X. Xxxx Title: Chief Financial Officer | ||
| ATC SOUTH AMERICA HOLDING CORP. | ||
| By |
/s/ XXXXXXX X. XXXX | |
| Name: Xxxxxxx X. Xxxx Title: Chief Financial Officer | ||
| AMERICAN TOWER COPORATION de MEXICO S. de X. X. de C.V. | ||
| By |
/s/ XXXXXXX X. XXXX | |
| Name: Xxxxxxx X. Xxxx Title: Attorney-In-Fact | ||
18
| MATC CELULAR S. de X.X.xx C.V. | ||
| By |
/s/ XXXXXXX X. XXXX | |
| Name: Xxxxxxx X. Xxxx Title: Attorney-In-Fact | ||
| MATC DIGITAL S. de X.X.xx C.V. | ||
| By |
/s/ XXXXXXX X. XXXX | |
| Name: Xxxxxxx X. Xxxx Title: Attorney-In-Fact | ||
| MATC SERVICIOS, S. de X.X.xx C.V. | ||
| By |
/s/ XXXXXXX X. XXXX | |
| Name: Xxxxxxx X. Xxxx Title: Attorney-In-Fact | ||
| TOWERS OF AMERICA, L.L.L.P. | ||
| By |
/s/ XXXXXXX X. XXXX | |
| Name: Xxxxxxx X. Xxxx Title: Chief Financial Officer & Treasurer | ||
19
| ADMINISTRATIVE AGENT AND LENDERS: |
TORONTO DOMINION (TEXAS), INC., as Administrative Agent and as a Lender | |||||||
| By | /s/ XXX XXXXXXXX | |||||||
| Name: Xxx Xxxxxxxx Title: Vice President | ||||||||
20
| ADDISON CDO, LIMITED (#1279), as a Lender | ||
| By: |
Pacific Investment Management Company, LLC, as its Investment Advisor | |
| By |
| |
| Name: Title: | ||
| ATHENA CDO, LIMITED (#1277), as a Lender | ||
| By: |
Pacific Investment Management Company, LLC, as its Investment Advisor | |
| By |
| |
| Name: Title: | ||
| BEDFORD CDO, LIMITED, as a Lender | ||
| By: |
Pacific Investment Management Company, LLC, as its Investment Advisor | |
| By |
| |
| Name: Title: | ||
| CAPTIVA III FINANCE LTD. (Acct 275), as a Lender As advised by Pacific Investment Management Company, LLC | ||
| By |
| |
| Name: Title: | ||
| CAPTIVA IV FINANCE LTD. (Acct 1275), as a Lender As advised by Pacific Investment Management Company, LLC | ||
| By |
| |
| Name: Title: | ||
21
| JISSEKIKUN FUNDING, LTD. (#1288), as a Lender | ||
| By: |
Pacific Investment Management Company, LLC, as its Investment Advisor | |
| By |
| |
| Name: Title: | ||
| ROYALTON COMPANY (#280), as a Lender | ||
| By: |
Pacific Investment Management Company, LLC, as its Investment Advisor | |
| By |
| |
| Name: Title: | ||
| SEQUILS-MAGNUM, LTD (#1280), as a Lender | ||
| By: |
Pacific Investment Management Company, LLC, as its Investment Advisor | |
| By |
| |
| Name: Title: | ||
22
| AERIES FINANCE-II, LTD., as a Lender | ||
| By: |
INVESCO Senior Secured Management, Inc., as Sub-Managing Agent | |
| By |
| |
| Name: Title: | ||
| AIM FLOATING RATE FUND, as a Lender | ||
| By: |
INVESCO Senior Secured Management, Inc., As Attorney in fact | |
| By |
| |
| Name: Title: | ||
| AMARA-1 FINANCE, LTD., as a Lender | ||
| By: |
INVESCO Senior Secured Management, Inc. As Financial Manager | |
| By |
| |
| Name: Title: | ||
| AMARA 2 FINANCE, LTD., as a Lender | ||
| By: |
INVESCO Senior Secured Management, Inc., As Financial Manager | |
| By |
| |
| Name: Title: | ||
| AVALON CAPITAL LTD., as a Lender | ||
| By: |
INVESCO Senior Secured Management, Inc., as Portfolio Advisor | |
| By |
| |
| Name: Title: | ||
23
| AVALON CAPITAL LTD. 2, as a Lender | ||
| By |
INVESCO Senior Secured Management, Inc., as Portfolio Advisor | |
| By |
| |
| Name: Title: | ||
| CERES II FINANCE LTD., as a Lender | ||
| By |
INVESCO Senior Secured Management, Inc., as Sub-Managing Agent (Financial) | |
| By |
| |
| Name: Title: | ||
| CHARTER VIEW PORTFOLIO, as a Lender | ||
| By |
INVESCO Senior Secured Management, Inc., as Investment Advisor | |
| By |
| |
| Name: Title: | ||
| DIVERSIFIED CREDIT PORTFOLIO LTD., as a Lender | ||
| By |
INVESCO Senior Secured Management, Inc., as Investment Advisor | |
| By |
| |
| Name: Title: | ||
| INVESCO EUROPEAN CDO I S.A., as a Lender | ||
| By |
INVESCO Senior Secured Management, Inc. as Collateral Manager | |
| By |
| |
| Name: Title: | ||
24
| SEQUILS-LIBERTY, LTD., as a Lender | ||
| By |
INVESCO Senior Secured Management, Inc., as Collateral Manager | |
| By |
| |
| Name: Title: | ||
| TRITON CDO IV, LIMITED, as a Lender | ||
| By: |
INVESCO Senior Secured Management, Inc., as Investment Advisor | |
| By |
| |
| Name: Title: | ||
25
| AIMCO CDO SERIES 2000-A, as a Lender | ||
| By |
| |
| Name: Title: | ||
| By: |
| |
| Name: Title: | ||
| AIMCO CDO SERIES 2001-A, as a Lender | ||
| By |
| |
| Name: Title: | ||
| By: |
| |
| Name: Title: | ||
26
| ALLFIRST BANK, as a Lender | ||
| By: |
| |
| Name: Title: | ||
27
| ALPHA U.S. SUBFUND II, LLC, as a Lender | ||
| By: |
GoldenTree Asset Management, LP | |
| By: |
/s/ XXXXXXXXX X. XXXXXX | |
| Name: Xxxxxxxxx X. Xxxxxx Title: | ||
| GKW UNIFIED HOLDINGS, LLC, as a Lender | ||
| By: |
GoldenTree Asset Management, LP | |
| By: |
/s/ XXXXXXXXX X. XXXXXX | |
| Name: Xxxxxxxxx X. Xxxxxx Title: | ||
| GOLDENTREE HIGH YIELD MASTER FUND LTD, as a Lender | ||
| By: |
GoldenTree Asset Management, LP | |
| By: |
/s/ XXXXXXXXX X. XXXXXX | |
| Name: Xxxxxxxxx X. Xxxxxx Title: | ||
28
| APEX (TRIMARAN) CDO I, LTD., as a Lender | ||
| By: |
Trimaran Advisors, L.L.C. | |
| By: |
/s/ XXXXX XXXXXXX | |
| Name: Xxxxx Xxxxxxx Title: Managing Director | ||
29
| ARCHIMEDES FUNDING, L.L.C., as a Lender | ||
| By: |
ING Capital Advisors LLC, as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| ARCHIMEDES FUNDING II, LTD., as a Lender | ||
| By: |
ING Capital Advisors LLC, as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| ARCHIMEDES FUNDING III, LTD., as a Lender | ||
| By: |
ING Capital Advisors LLC, as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| ARCHIMEDES FUNDING IV (CAYMAN), LTD., as a Lender | ||
| By: |
ING Capital Advisors LLC, as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| BALANCED HIGH YIELD FUND I, LTD., as a Lender | ||
| By: |
ING Capital Advisors LLC, as Asset Manager | |
| By: |
| |
| Name: Title: | ||
30
| BALANCED HIGH YIELD FUND II, LTD., as a Lender By: ING Capital Advisors LLC, as Asset Manager | ||
| By: |
| |
| Name: Title: | ||
| ENDURANCE CLO I, LTD., as a Lender c/o: ING Capital Advisors LLC, as Collateral Manager | ||
| By: |
| |
| Name: Title: | ||
| ING-ORYX CLO, LTD., as a Lender By: ING Capital Advisors LLC, as Collateral Manager | ||
| By: |
| |
| Name: Title: | ||
| NEMEAN CLO, LTD., as a Lender By: ING Capital Advisors LLC, as Investment Manager | ||
| By: |
| |
| Name: Title: | ||
| SEQUILS-ING I (HBDGM), LTD., as a Lender By: ING Capital Advisors LLC, as Collateral Manager | ||
| By: |
| |
| Name: Title: | ||
31
| ARES III CLO Ltd.
By: ARES CLO Management LLC | ||
| By: |
//XXXX XXXXX// | |
| Name: Xxxx Xxxxx Title: Vice President | ||
32
| ARIEL CBO, as a Lender | ||
| By: | American Express Asset Management Group Inc., as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| XXXXXXX CBO LIMITED, as a Lender | ||
| By: | American Express Asset Management Group Inc., as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| CEDAR CBO, LIMITED, as a Lender | ||
| By: | American Express Asset Management Group Inc., as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| CENTURION CDO II, LTD., as a Lender | ||
| By: | American Express Asset Management Group Inc., as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| CENTURION CDO III, LIMITED, as a Lender | ||
| By: | American Express Asset Management Group Inc., as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
33
| CENTURION CDO VI, LIMITED, as a Lender | ||
| By: | American Express Asset Management Group Inc., as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| CLARION CBO LIMITED, as a Lender | ||
| By: | American Express Asset Management Group Inc., as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| ISLES CBO LIMITED, as a Lender | ||
| By: | American Express Asset Management Group Inc., as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| SEQUILS—CENTURION V, LTD., as a Lender | ||
| By: | American Express Asset Management Group Inc., as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
34
| BALLYROCK CDO I LIMITED, as a Lender | ||
| By: |
//XXXX XXXXX// | |
| Name: Xxxx Xxxxx Title: Assistant Treasurer | ||
| FIDELITY ADVISOR SERIES II: FIDELITY ADVISOR FLOATING RATE HIGH INCOME FUND, as a Lender | ||
| By: |
//XXXX X. XXXXXXXX// | |
| Name: Xxxx X. Xxxxxxxx Title: Assistant Treasurer | ||
| FIDELITY DEVONSHIRE TRUST: FIDELITY EQUITY-INCOME FUND, as a Lender | ||
| By: |
//XXXX X. XXXXXXXX// | |
| Name: Xxxx X. Xxxxxxxx Title: Assistant Treasurer | ||
| FIDELITY FIXED INCOME TRUST: FIDELITY HIGH INCOME FUND, as a Lender | ||
| By: |
//XXXX X. XXXXXXXX// | |
| Name: Xxxx X. Xxxxxxxx Title: Assistant Treasurer | ||
35
| BANK OF AMERICA, STRATEGIC SOLUTIONS INC., as a Lender | ||
| By: |
//XXXXXXX HONEY// | |
| Name: Xxxxxxx Honey Title: Vice President | ||
36
| BANK OF MONTRÉAL, as a Lender | ||
| By: |
//X. X. XXXXXXXXXX// | |
| Name: X. X. Xxxxxxxxxx Title: Director | ||
37
| BANKNORTH, N.A., as a Lender | ||
| By: |
//XXXXXXX XXXXXXXX// | |
| Name: Xxxxxxx Xxxxxxxx Title: AVP | ||
38
| BANK OF SCOTLAND, as a Lender | ||
| By: |
//XXXXXX XXXXXX// | |
| Name: Xxxxxx Xxxxxx Title: First Vice President | ||
39
| BLACKROCK SENIOR LOAN TRUST, as a Lender | ||
| By: |
| |
| Name: Title: | ||
| MAGNETITE ASSET INVESTORS, LLC, as a Lender | ||
| By: |
| |
| Name: Title: | ||
| MAGNETITE ASSET INVESTORS III, LLC, as a Lender | ||
| By: |
| |
| Name: Title: | ||
| TITANIUM CBO I, LTD., as a Lender | ||
| By: |
| |
| Name: Title: | ||
40
| BAVARIA TRR CORPORATION, as a Lender | ||
| By: |
| |
| Name: Title: | ||
00
| XXXXXXXXXX XXXX-XXX XXXXXXXXXXX XX, XXX XXXX BRANCH, as a Lender | ||
| By |
/s/ XXXXXXXX XXXXXXXXXX | |
| Name: Xxxxxxxx Xxxxxxxxxx Title: Director | ||
| By |
/s/ XXXXX XXXXXXX | |
| Name: Xxxxx Xxxxxxx Title: Associate Director | ||
42
| BEAR XXXXXXX & CO. INC., as a LENDER | ||
| By |
/s/ XXXXX X. XXXXXXX | |
| Name: Xxxxx X. Xxxxxxx Title: Senior Managing Director | ||
| BEAR XXXXXXX CORPORATE LENDING INC., as a Lender | ||
| By |
/s/ XXXXXX XXXXXXXXXXXX | |
| Name: Xxxxxx Xxxxxxxxxxxx Title: Authorized Agent | ||
| BEAR XXXXXXX INVESTMENT PRODUCTS INC., as a Lender | ||
| By |
/s/ XXXXX X. XXXXXXX | |
| Name: Xxxxx X. Xxxxxxx Title: Authorized Signatory | ||
43
| BOSTON INCOME PORTFOLIO, as a Lender | ||
| By: |
Boston Management and Research as Investment Advisor | |
| By |
| |
| Name: Title: | ||
| DIVERSIFIED INVESTORS HIGH YIELD BOND FUND, as a Lender | ||
| By: |
Boston Management and Research as Investment Advisor, | |
| By |
| |
| Name: Title: | ||
| XXXXX XXXXX CDO II, LTD., as a Lender | ||
| By: |
Xxxxx Xxxxx Management, as Investment Advisor | |
| By |
| |
| Name: Title: | ||
| XXXXX XXXXX CDO III, LTD., as a Lender | ||
| By: |
Xxxxx Xxxxx Management, as Investment Advisor | |
| By |
| |
| Name: Title: | ||
| XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND, as a Lender | ||
| By: |
Xxxxx Xxxxx Management, as Investment Advisor | |
| By |
| |
| Name: Title: | ||
44
| XXXXX XXXXX SENIOR INCOME TRUST, as a Lender | ||
| By: |
Xxxxx Xxxxx Management, as Investment Advisor | |
| By |
| |
| Name: Title: | ||
| XXXXXXX & CO, as a Lender | ||
| By: |
Boston Management and Research, as Investment Advisor | |
| By |
| |
| Name: Title: | ||
| HIGH INCOME PORTFOLIO, as a Lender | ||
| By: |
Boston Management and Research, as Investment Advisor | |
| By |
| |
| Name: Title: | ||
| SENIOR DEBT PORTFOLIO, as a Lender | ||
| By: |
Boston Management and Research, as Investment | |
| By |
| |
| Name: Title: | ||
45
| CALLIDUS DEBT PARTNERS CDO FUND I, LTD., as a Lender | ||
| By: |
Callidus Capital Management, LLC, its Collateral Manager | |
| By |
| |
| Name: Title: | ||
46
| CARLYLE HIGH YIELD PARTNERS II, LTD., as a Lender | ||
| By |
| |
| Name: Title: | ||
| CARLYLE HIGH YIELD PARTNERS III, LTD., as a Lender | ||
| By |
| |
| Name: Title: | ||
| CARLYLE HIGH YIELD PARTNERS IV, LTD., as a Lender | ||
| By |
| |
| Name: Title: | ||
47
| CITADEL HILL 2000 LTD., as a Lender | ||
| By |
/s/ XXXXXXXX X. XXXXXXXXX | |
| Name: Xxxxxxxx X. Xxxxxxxxx Title: Authorized Signatory | ||
48
| CITIZENS BANK OF MASSACHUSETTS, as a Lender | ||
| By |
/s/ XXXXXX X. XXXXXXX | |
| Name: Xxxxxx X. Xxxxxxx Title: Senior Vice President | ||
49
| CLYDESDALE CLO 2001-1, LTD., as a Lender | ||
| By: |
Nomura Corporate Research and Asset Management, Inc., as Collateral Manager | |
| By |
| |
| Name: Title: | ||
50
| COBANK, ACB, as a Lender | ||
| By |
| |
| Name: Title: | ||
51
| CONTINENTAL ASSURANCE COMPANY on behalf of its Separate Account (E), as a Lender | ||
| By |
| |
| Name: Title: | ||
52
| CONTINENTAL CASUALTY COMPANY, as a Lender | ||
| By |
| |
| Name: Title: | ||
53
| COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH, as a Lender | ||
| By: |
/S/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Executor Director | ||
| By: |
/S/ XXXXX XXXX | |
| Name: Xxxxx Xxxx Title: Managing Director Credit Risk Management | ||
54
| CREDIT LYONNAIS NEW YORK BRANCH, AS A LENDER | ||
| By: |
/s/ STEPHANE DUCROIZET | |
| Name: Stephane Ducroizet Title: Vice President | ||
55
| CREDITSUISSE FIRST BOSTON, as a Lender | ||
| By: |
/s/ SOVONNA DAY-XXXXX | |
| Name: SoVonna Day-Xxxxx Title: Vice President | ||
| By: |
/s/ XXXXXX X. XXXXX | |
| Name: Xxxxxx X. Xxxxx Title: Associate | ||
56
| CSAM FUNDING II, as a Lender | ||
| By: |
||
| Name: Title: | ||
| By |
57
| CYPRESSTREE INVESTMENT PARTNERS I, LTD., as a Lender | ||
| By: | CypressTree Investment Management Company, Inc., as Portfolio Manager | |
| By: |
| |
| Name: Title: | ||
| CYPRESSTREE INVESTMENT PARTNERS II, LTD., as a Lender | ||
| By: | CypressTree Investment Management Company, Inc., as Portfolio Manager | |
| By: |
| |
| Name: Title: | ||
| FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY as a Lender | ||
| By: |
| |
| Name: Title: | ||
00
| XXXXXXXX XXXX XX, XXX XXXX AND GRAND CAYMAN BRANCHES, as a Lender | ||
| By: |
| |
| Name: Title: | ||
| By: |
| |
| Name: Title: | ||
59
| DEUTSCHE BANK TRUST COMPANY AMERICAS f/k/a BANKERS TRUST COMPANY, as a Lender | ||
| By: |
/S/ XXXX XXXXXX | |
| Name: Xxxx Xxxxxx Title: Director | ||
60
| DEXIA CREDIT LOCAL, as a Lender | ||
| By: |
| |
| Name: Title: | ||
| By: |
| |
| Name: Title: | ||
61
| ELC (CAYMAN) LTD., as a Lender | ||
| By: | Xxxxx X. Xxxxxx & Company Inc., as Collateral Manager | |
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx, CFA Title: Managing Director | ||
| ELC (CAYMAN) LTD. CDO SERIES 1999-I, as a Lender | ||
| By: | Xxxxx X. Xxxxxx & Company Inc., as Collateral Manager | |
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx, CFA Title: Managing Director | ||
| ELC (CAYMAN) LTD. 1999-II, as a Lender | ||
| By: | Xxxxx X. Xxxxxx & Company Inc., as Collateral Manager | |
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx, CFA Title: Managing Director | ||
| XXXXX CLO I LTD. 2000-1, as a Lender | ||
| By: | Xxxxx X. Xxxxxx & Company Inc., as Collateral Manager | |
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx, CFA Title: Managing Director | ||
62
| ELF FUNDING TRUST III, as a Lender | ||
| By: | New York Life Investment Management, LLC, as attorney-in-fact | |
| By: |
| |
| Name: Title: | ||
63
| ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG, as a Lender | ||
| By: |
/s/ XXXX XXX | |
| Name: Xxxx Xxx Title: Vice President, Erste Bank New York Branch | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: First Vice President | ||
64
| FC-CBO III LIMITED, as a Lender | ||
| By: |
| |
| Name: Title: | ||
65
| FIRST DOMINION FUNDING III, as a Lender | ||
| By |
| |
| Name: Title: | ||
66
| FLEET NATIONAL BANK, as a Lender | ||
| By |
| |
| Name: Title: | ||
67
| FORTIS CAPITAL CORP., as a Lender | ||
| By |
| |
| Name: Title: | ||
| By |
| |
| Name: Title: | ||
68
| GALAXY CLO 1999-1, LTD., as a Lender | ||
| By: |
SAI Investment Adviser, Inc., its Collateral Agent | |
| By |
| |
| Name: Title: | ||
69
| GE CAPITAL CFE, INC., as a Lender | ||
| By: |
/s/ XXXXX X. XXXXXXXX | |
| Name: Xxxxx X. Xxxxxxxx Title: Vice President | ||
70
| GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender | ||
| By: |
/s/ XXXXX X. XXXXXXXX | |
| Name: Xxxxx X. Xxxxxxxx Title: Manager, Operations | ||
71
|
HARBOUR TOWN FUNDING TRUST, as a Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Authorized Agent | ||
|
JUPITER FUNDING TRUST, as a Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Authorized Agent | ||
|
MUIRFIELD TRADING LLC, as a Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Assistant Vice President | ||
|
OLYMPIC FUNDING TRUST, SERIES 1999-1, as a Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Authorized | ||
|
PPM SPYGLASS FUNDING TRUST, as a Lender | ||
| By: |
| |
| Name: Title: | ||
72
| STANWICH LOAN FUNDING LLC, as a Lender | ||
| By: | /s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Assistant Vice President | ||
| WINGED FOOT FUNDING TRUST, as a Lender | ||
| By: | /s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Authorized Agent | ||
73
| HARBOURVIEW CDO II, LTD., as a Lender | ||
| By: |
| |
| Name: Title: | ||
| HARBOURVIEW CDO IV, LTD., as a Lender | ||
| By: |
| |
| Name: Title: | ||
| XXXXXXXXXXX SENIOR FLOATING RATE FUND, as a Lender | ||
| By: |
| |
| Name: Title: | ||
74
| IBM CREDIT CORPORATION, as a Lender | ||
| By: |
| |
| Name: Title: | ||
75
| INDOSUEZ CAPITAL FUNDIING IIA, LIMITED, as a Lender | ||
| By: |
| |
| Name: Title: | ||
| INDOSUEZ CAPITAL FUNDIING III, LIMITED, as a Lender | ||
| By: |
| |
| Name: Title: | ||
76
| ING PRIME RATE TRUST, as a Lender | ||
| By: |
ING Investments, LLC, as its investment manager | |
| By |
| |
| Name: Title: | ||
| ING SENIOR INCOME FUND, as a Lender | ||
| By: |
ING Investments, LLC, as its investment manager | |
| By |
| |
| Name: Title: | ||
| ML CLO XV PILGRIM AMERICA (CAYMAN) LTD., as a Lender | ||
| By: |
ING Investments, LLC, as its investment manager | |
| By |
| |
| Name: Title: | ||
| ML CLO XX PILGRIM AMERICA (CAYMAN) LTD., as a Lender | ||
| By: |
ING Investments, LLC, as its investment manager | |
| By |
| |
| Name: Title: | ||
| PILGRIM CLO 1999-1 LTD., as a Lender | ||
| By: |
ING Investments, LLC, as its investment manager | |
| By |
| |
| Name: Title: | ||
77
| SEQUILS-PILGRIM I, LTD., as a Lender | ||
| By: |
ING Investments, LLC, as its investment manager | |
| By |
| |
| Name: Title: | ||
78
| JPMORGAN CHASE BANK, as a Lender | ||
| By |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Managing Director | ||
79
| KEY CORPORATE CAPITAL INC., as a Lender | ||
| By |
/s/ XXXXX X. XXXXXXXX | |
| Name: Xxxxx X. Xxxxxxxx Title: Assistant Vice President | ||
80
| KZH CYPRESSTREE-1 LLC, as a Lender | ||
| By |
| |
| Name: Title: | ||
| KZH ING-2 LLC, as a Lender | ||
| By |
| |
| Name: Title: | ||
| KZH ING-3 LLC, as a Lender | ||
| By |
| |
| Name: Title: | ||
| KZH STERLING LLC, as a Lender | ||
| By |
| |
| Name: Title: | ||
81
| KZH SOLEIL LLC, as a Lender | ||
| By |
/s/ HI HUA | |
| Name: Hi Hua Title: Authorized Agent | ||
| KZH SOLEIL-2 LLC, as a Lender | ||
| By |
/s/ HI HUA | |
| Name: Hi Hua Title: Authorized Agent | ||
| KZH RIVERSIDE LLC, as a Lender | ||
| By |
/s/ HI HUA | |
| Name: Hi Hua Title: Authorized Agent | ||
82
| LANDMARK CDO LIMITED, as a Lender | ||
| By: |
Aladdin Asset Management LLC, as Manager | |
| By |
| |
| Name: Title: | ||
83
| LCM I LIMITED PARTNERSHIP, as a Lender | ||
| By: |
Lyon Capital Management LLC, as Attorney in Fact | |
| By |
| |
| Name: Title: | ||
84
| XXXXXX COMMERCIAL PAPER, as a Lender | ||
| By: |
/S/ G. XXXXXX XXXXXXX | |
| Name: G. Xxxxxx Xxxxxxx Title: Vice President | ||
| SYNDICATED LOAN FUNDING TRUST, as a Lender | ||
| By: |
Xxxxxx Commercial Paper, Inc., Not in its individual capacity but solely as Asset Manager | |
| By: |
| |
| Name: Title: | ||
00
| XXXXXXX XXXXXX CDO I, LTD, as a Lender | ||
| By: |
Metropolitan Life Insurance Company, as Collateral Manager | |
| By: |
/s/ XXXXX X. XXXXXXX | |
| Name: Xxxxx X. Xxxxxxx Title: Director | ||
| MADISON AVENUE CDO III, LTD, as a Lender | ||
| By: |
Metropolitan Life Insurance Company, as Collateral Manager | |
| By: |
/s/ XXXXX X. XXXXXXX | |
| Name: Xxxxx X. Xxxxxxx Title: Director | ||
| METROPOLITAN LIFE INSURANCE COMPANY, as a Lender | ||
| By: |
/s/ XXXXX X. XXXXXX | |
| Name: Xxxxx X. Xxxxxx Title: Director | ||
86
| MASTER SENIOR FLOATING RATE TRUST, as Lender. | ||
| By: |
/s/ XXXX XXXXXXX | |
| Name: Xxxx Xxxxxxx Title: Authorized Signatory | ||
| DEBT STRATEGIES FUND, INC., as Lender | ||
| By: |
/s/ XXXX XXXXXXX | |
| Name: Xxxx Xxxxxxx Title: Authorized Signatory | ||
| LONGHORN CDO (CAYMAN) LTD., as a Lender | ||
| By: |
Xxxxxxx Xxxxx Investment Managers, as Investment Advisor | |
| By: |
/s/ XXXX XXXXXXX | |
| Name: Xxxx Xxxxxxx Title: Authorized Signatory | ||
| LONGHORN CDO II, LTD., as a Lender | ||
| By: |
Xxxxxxx Xxxxx Investment Managers, L.P., as Investment Advisor | |
| By: |
/s/ XXXX XXXXXXX | |
| Name: Xxxx Xxxxxxx Title: Authorized Signatory | ||
| XXXXXXX XXXXX PRIME RATE PORTFOLIO, as a Lender | ||
| By: |
Xxxxxxx Xxxxx Investment Managers, L.P., as Investment Advisor, as Lender | |
| By: |
/s/ XXXX XXXXXXX | |
| Name: Xxxx Xxxxxxx Title: Authorized Signatory | ||
87
| XXXXXXX XXXXX GLOBAL INVESTMENT SERIES: INCOME STRATEGIES PORTFOLIO, as Lender | ||
| By: |
Xxxxxxx Xxxxx Investments Managers, L.P., as Investment Advisor | |
| By: |
/s/ XXXX XXXXXXX | |
| Name: Xxxx Xxxxxxx Title: Authorized Signatory | ||
| XXXXXXX XXXXX CREDIT PRODUCTS LLC, as Lender | ||
| By: |
| |
| Name: Title: | ||
| SENIOR HIGH INCOME PORTFOLIO, INC., as a Lender | ||
| By: |
/s/ XXXX XXXXXXX | |
| Name: Xxxx Xxxxxxx Title: Authorized Signatory | ||
88
| MIZUHO CORPORATE BANK, LTD., as a Lender | ||
| By: |
| |
| Name: Title: | ||
89
| XXXXXX XXXXXXX PRIME INCOME TRUST, as a Lender | ||
| By: |
| |
| Name: Title: | ||
90
| MOUNTAIN CAPITAL CLO I, LTD., as a Lender | ||
| By: |
| |
| Name: Title: | ||
| MOUNTAIN CAPITAL CLO II, LTD., as a Lender | ||
| By: |
| |
| Name: Title: | ||
91
| NATEXIS BANQUES POPULAIRES, as a Lender | ||
| By: |
/s/ XXXXXXX X. XXXXX | |
| Name: Xxxxxxx X. Xxxxx Title: VP, Group Manager | ||
| ARES III CLO Ltd. | ||
| By: |
ARES CLO Management LLC | |
| By: |
/s/ XXXXXXX X. XXXXXXXXX | |
| Name: Xxxxxxx X. Xxxxxxxxx Title: Vice President | ||
92
| NATIONAL CITY BANK, as a Lender | ||
| By: |
/s/ XXX X. Xxxxxxxx | |
| Name: Xxx X.Xxxxxxxx Title: Senior Vice President | ||
| , |
93
| NIB CAPITAL BANK N.V., as a Lender | ||
| By |
||
| Name: Title: | ||
| By |
||
| Name: Title: | ||
94
| NEW YORK LIFE INSURANCE AND ANNUITY COMPANY, as a Lender | ||
| By |
||
| Name: Title: | ||
95
| OCTAGON INVESTMENT PARTNERS II, LLC, as a Lender By: Octagon Credit Investors, LLC, as sub-investment manager | ||
| By |
||
| Name: Title: | ||
| OCTAGON INVESTMENT PARTNERS III, LTD., as a Lender By: Octagon Credit Investors, LLC, as Portfolio Manager | ||
| By |
||
| Name: Title: | ||
| OCTAGON INVESTMENT PARTNERS IV, LTD., as a Lender By: Octagon Credit Investors, LLC, as Collateral Manager | ||
| By |
||
| Name: Title: | ||
96
| PACIFICA PARTNERS I, L.P., as a Lender By: Imperial Credit Asset Management, as its Investment Manager | ||
| By: |
/s/ XXXX XXXXXX | |
| Name: Xxxx Xxxxxx Title: SVP | ||
| PACIFICA CDO II, LTD. By: Alcentra Inc., as its Investment Manager | ||
| By: |
/s/ XXXX XXXXXX | |
| Name: Xxxx Xxxxxx Title: SVP | ||
97
| PRESIDENT & FELLOWS OF HARVARD COLLEGE, as a Lender | ||
| By:
By: |
Regiment Capital Management, LLC, as its Investment Advisor Regiment Capital Advisors, LLC, its Manager and pursuant to delegated authority | |
| By |
||
| Name: Title: | ||
| REGIMENT CAPITAL LTD. as a Lender | ||
| By:
By: |
Regiment Capital Management, LLC, as its Investment Advisor Regiment Capital Advisors, LLC, its Manager and pursuant to delegated authority | |
| By |
||
| Name: Title: | ||
98
| ROBECO CDO II, LTD., as a Lender | ||
| By |
||
| Name: Title: | ||
99
| ROYAL BANK OF CANADA, as a Lender | ||
| By: |
/s/ XXXX X. XXXXXXXX | |
| Name: Xxxx X. Xxxxxxxx Title: Sr. Manager | ||
100
| SANKATY ADVISORS, LLC, as Collateral Manager for XXXXX POINT II CBO 2000-1, LTD., as Term Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Managing Director Portfolio Manager | ||
| SANKATY ADVISORS, LLC, as Collateral Manager for CASTLE HILL I- INGOTS, LTD., as Term Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Managing Director Portfolio Manager | ||
| SANKATY ADVISORS, LLC, as Collateral Manager for CASTLE HILL II- INGOTS, LTD., as Term Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Managing Director Portfolio Manager | ||
| SANKATY ADVISORS, LLC, as Collateral Manager for GREAT POINT CLO 1999-1 LTD., as Term Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Managing Director Portfolio Manager | ||
| SANKATY ADVISORS, LLC, as Collateral Manager for RACE POINT CLO, LIMITED, as Term Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Managing Director Portfolio Manager | ||
101
| SANKATY ADVISORS, LLC, as Collateral Manager for RACE POINT II CLO, LIMITED, as Term Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Managing Director Portfolio Manager | ||
| SANKATY HIGH YIELD PARTNERS II, L.P., as a Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Managing Director Portfolio Manager | ||
| SANKATY HIGH YIELD PARTNERS III, L.P., as a Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Managing Director Portfolio Manager | ||
| SANKATY ADVISORS, INC., as Collateral Manager for XXXXX POINT CBO 1999-1, LTD., as Term Lender | ||
| By: |
/s/ XXXXX X. XXXXX | |
| Name: Xxxxx X. Xxxxx Title: Managing Director Portfolio Manager | ||
102
| SEABOARD CLO 2000 LTD, as a Lender | ||
| By: |
| |
| Name: Title: | ||
103
| SENECA CBO II, L.P., as a Lender | ||
| By: |
| |
| Name: Title: | ||
| SENECA CBO III, LIMITED, as a Lender | ||
| By: |
| |
| Name: Title: | ||
104
| SEQUILS—Cumberland I, Ltd., as a Lender | ||
| By: | Deerfield Capital Management LLC as its Collateral Manager | |
| By: |
/s/ XXXX X. XXXXXXXXX | |
| Name: Xxxx X. Xxxxxxxxx Title: Senior Vice President | ||
| ROSEMONT CLO, Ltd., as a Lender | ||
| By: | Deerfield Capital Management LLC as its Collateral Manager | |
| By: |
/s/ XXXX X. XXXXXXXXX | |
| Name: Xxxx X. Xxxxxxxxx Title: Senior Vice President | ||
| BRYN MAWR CLO, Ltd., as a Lender | ||
| By: | Deerfield Capital Management LLC as its Collateral Manager | |
| By: |
/s/ XXXX X. XXXXXXXXX | |
| Name: Xxxx X. Xxxxxxxxx Title: Senior Vice President | ||
| FOREST CREEK CLO, Ltd., as a Lender | ||
| By: | Deerfield Capital Management LLC as its Collateral Manager | |
| By: |
/s/ XXXX X. XXXXXXXXX | |
| Name: Xxxx X. Xxxxxxxxx Title: Senior Vice President | ||
105
| SIERRA CLO I, LTD., as a Lender | ||
| By: | Centre Pacific LLC | |
| By: |
/s/ XXXXX XXXXXX | |
| Name: Xxxxx Xxxxxx Title: Managing Director | ||
106
| SUNTRUST BANK, as a Lender | ||
| By: |
/s/ XXXXXXX X. XXXXXXXX, XX. | |
| Name: Xxxxxxx X. Xxxxxxxx, Xx. Title: Vice President | ||
107
| TEXTRON FINANCIAL CORPORATION, as a Lender | ||
| By: |
/s/ XXXXXXX X. XXXXXX | |
| Name: Xxxxxxx X. Xxxxxx Title: Vice President | ||
000
| XXX XXXX XX XXX XXXX, as a Lender | ||
| By: |
/s/ XXXXXX X. XXXXXXX | |
| Name: Xxxxxx X. Xxxxxxx Title: Vice President | ||
000
| XXX XXXX XX XXXX XXXXXX, as a Lender | ||
| By: |
/s/ XXXX X. XXXXXXXXXXXXX | |
| Name: P. A. Xxxxxxxxxxxxx Title: Authorized Signatory | ||
110
| THE CIT GROUP/EQUIPMENT FINANCING, INC., as a Lender | ||
| By: |
| |
| Name: Title: | ||
111
| TRS ECLIPSE LLC, as a Lender | ||
| By: |
| |
| Name: Title: | ||
112
| TRUMBULL THC, LTD., as a Lender | ||
| By: |
/s/ XXXXXX XXXXX | |
| Name: Xxxxxx Xxxxx Title: Attorney In Fact | ||
000
| XXXXX XXXX XX XXXXXXXXXX, N.A., as a Lender | ||
| By: |
/s/ XXXXX X. XXXXXX | |
| Name: Xxxxx X. Xxxxxx Title: Senior Vice President | ||
114
| UBS AG, STAMFORD BRANCH, as a Lender | ||
| By: |
| |
| Name: Title: | ||
115
| XXX XXXXXX CLO I, LIMITED, as a Lender | ||
| By: |
Xxx Xxxxxx Management, Inc., as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| XXX XXXXXX CLO II, LIMITED, as a Lender | ||
| By: |
Xxx Xxxxxx Management, Inc., as Collateral Manager | |
| By: |
| |
| Name: Title: | ||
| XXX XXXXXX SENIOR INCOME TRUST, as a Lender | ||
| By: |
Xxx Xxxxxx Investment Advisory Corp. | |
| By: |
| |
| Name: Title: | ||
116
| WACHOVIA BANK, N. A., as a Lender | ||
| By: |
| |
| Name: Title: | ||
117
| WASHINGTON MUTUAL BANK, as a Lender | ||
| By: |
| |
| Name: Title: | ||
118
| XXXXXXX BANK, as a Lender | ||
| By: |
| |
| Name: Title: | ||
119
