EXHIBIT 10.104
Amendment No. 4 to Side Letter
Dated as of March 27, 2002
Reference is hereby made to the following:
(i) that certain letter agreement dated as of October 30,
2001, as amended (the "Side Letter") between Xxxxxxxx Communications,
LLC (the "Borrower") and Xxxxxxxx Communications Group, Inc.
("Holdings"), on the one hand, and Bank of America, N.A., as
Administrative Agent and as Issuing Bank, XX Xxxxxx Xxxxx Bank
(formerly The Chase Manhattan Bank), as Syndication Agent and as
Issuing Bank, Xxxxxxx Xxxxx Xxxxxx Inc., as Co-Documentation Agent,
Xxxxxx Brothers, Inc., as Co-Documentation Agent and Xxxxxxx Xxxxx &
Co., as Co-Documentation Agent, on the other hand; and
(ii) that certain Amended and Restated Credit Agreement dated
as of September 8, 1999 (as amended, the "Credit Agreement"), among the
Borrower, Holdings, the lenders party thereto (the "Lenders"), Bank of
America, N.A., as Administrative Agent for the Lenders (in such
capacity, the "Administrative Agent"), XX Xxxxxx Chase Bank (formerly
The Chase Manhattan Bank), as Syndication Agent, Xxxxxxx Xxxxx Xxxxxx
Inc. and Xxxxxx Brothers, Inc., as Joint Lead Arrangers and Joint
Bookrunners with respect to the Incremental Facility referred to
therein, and Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxx Brothers, Inc. and
Xxxxxxx Xxxxx & Co., as Co-Documentation Agents.
Capitalized terms not otherwise defined herein are used herein as
defined in the Side Letter or the Credit Agreement, as applicable.
The Borrower and Holdings have requested, and the Agents, the Issuing
Bank and the Required Lenders have agreed, to amend the Side Letter (subject to
the terms and conditions set forth herein).
In consideration of the mutual agreements contained herein and other
good and valuable consideration the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. The Side Letter is hereby amended as of the Amendment Effective Date (as such
term is defined in Section 3 below) as follows:
(a) Clause (i) of the first paragraph of Section 1 of the Side Letter
is hereby amended by deleting the date "March 27, 2002" appearing therein and
inserting the date "April 26, 2002" in lieu thereof.
(b) Section 2 of the Side Letter is hereby amended in its entirety to
read as follows:
"2. During the Negotiation Period, the Borrower, Holdings and
their subsidiaries shall, subject to the restrictions and
other provisions of this letter agreement, fund their business
and operations in accordance with the business plan dated
March, 2002 and
delivered to PricewaterhouseCoopers LLP on March 11, 2002, as
such business plan shall be modified by the cash flow
projections delivered weekly by the Loan Parties pursuant to
Section 9 of this letter agreement; provided that such cash
flow projections are reasonably satisfactory in form and
substance to the Administrative Agent and PWC."
(c) Section 9 of the Side Letter is hereby amended in its entirety
to read as follows:
"9. The Loan Parties hereby agree to deliver to the Agents and
PricewaterhouseCoopers LLP ("PWC") on April 11, 2002, (a) an
update of the 13-week cash flow projection previously
delivered to PWC on March 26, 2002, which update shall cover a
period commencing with the calendar week beginning on April 8,
2002, and ending with the same final week as the original
13-week cash flow projection; and (b) a comparison of actual
cash flows to the projected cash flows and a variance analysis
for the two (2) calendar weeks ended immediately prior to
April 8, 2002, both on a week by week basis and on a
cumulative basis, in each case in form and substance
reasonably satisfactory to the Administrative Agent and PWC.
The Loan Parties hereby agree to deliver to the Agents and PWC
on April 4, 2002 and on April 11, 2002, a true and complete
list of all Deposit Accounts and Securities Accounts (such
terms are being used herein as defined in the Security
Agreement) or other similar accounts or instruments held by
any Loan Party and including the following information: the
correct legal name of the institution where such account is
maintained, the Loan Party in whose name the account is
maintained, the account number and the balance (which may not
include interest income) as of the end of the immediately
preceding calendar week (such list to be in a form reasonably
satisfactory to the Administrative Agent and PWC) and
including a representation and warranty that to the extent
required by the Loan Documents, all such Deposit Accounts,
Securities Accounts, other accounts and instruments have been
pledged to the Administrative Agent (for the benefit of itself
and the Secured Parties (as defined in the Security
Agreement)).
The Loan Parties hereby agree to deliver to the Agents and
PWC, for each calendar week commencing on or after April 15,
2002, no later than the fourth Business Day of such calendar
week, (a) a cash flow projection covering a period beginning
with such calendar week through and including the calendar
week that is nine (9) weeks after the next scheduled
Re-forecast Date (as such term is defined below); (b) a
comparison of actual cash flows to the projected cash flows
and a variance analysis for the calendar week ended
immediately prior to such calendar week; and (c) a true and
complete list of all Deposit Accounts and Securities Accounts
(such terms are being used herein as defined in the Security
Agreement) or other similar accounts or instruments held by
any Loan Party and including the following information: the
correct legal name of the institution where such account is
maintained, the Loan Party in whose name the account is
maintained, the account number and the balance (which may not
include interest income) as of the end of the immediately
preceding calendar week and including a representation and
warranty that to the extent required by the Loan Documents,
all such Deposit Accounts, Securities Accounts, other accounts
and instruments have been pledged to the Administrative Agent
(for the benefit of itself and the Secured Parties (as defined
in the Security Agreement)) (all of the foregoing information
shall, in each case, be in form and substance reasonably
satisfactory to the Administrative Agent and PWC). As used
herein
2
the term "Re-forecast Date" shall mean April 25, 2002, and
each Thursday thereafter occurring in intervals of four (4)
weeks.
The Loan Parties hereby further agree to deliver to the Agents
and PWC, within fifteen (15) Business Days after the end of
each calendar month, a copy of the summary of monthly
consolidated financial information for Holdings and its
Subsidiaries in the form presented to Holdings' management
(which information is subject to normal quarterly and year-end
adjustment)."
(d) The Side Letter is hereby amended to include the following new
Section 14:
"14. Holdings has advised the Agents that the next scheduled
interest payment date with respect to Holdings' 10.70% Senior
Redeemable Notes due 2007 and 10.875% Senior Redeemable Notes
due 2009 (collectively, the "Senior Redeemable Notes") issued
pursuant to that certain Indenture dated as of October 6, 1999
between Holdings and The Bank of New York as trustee (the
"Indenture"), is April 1, 2002. In connection therewith,
Holdings hereby covenants and agrees as follows:
(i) Holdings shall avail itself of, and exhaust,
all time available up to (but not including)
the last Business Day preceding the
expiration of any grace period applicable to
such payment;
(ii) Holdings shall not permit any other Loan
Party to make (and each other Loan Party
agrees not to make), and no other Loan Party
is obligated to make, any payment on behalf
of Holdings in respect of the Senior
Redeemable Notes during the Negotiation
Period;
(iii) during the Negotiation Period, Holdings will
not agree to any amendment or other
modification of the Indenture other than to
effect a replacement of the trustee
thereunder, without the prior written
consent of the Administrative Agent; and
(iv) Holdings shall deliver to the Administrative
Agent prior written notice (at the address
set forth below the Administrative Agent's
name on the signature pages hereto) at least
5 Business Days before Holdings or any other
Loan Party makes any payment with respect to
the Senior Redeemable Notes, or any of the
transactions related to, or contemplated by,
the Indenture (and Holdings hereby
represents and warrants that no such
payments are due and payable by Holdings or
the other Loan Parties during the
Negotiation Period, other than the scheduled
interest payment on the Senior Redeemable
Notes).
Holdings hereby represents and warrants that the grace period
with respect to interest payments on the Senior Redeemable
Notes is a period of 30 days."
2. The Required Lenders hereby approve the form of note attached hereto as Annex
A and agree that any Indebtedness issued by Holdings to The Xxxxxxxx Companies,
Inc. as a result of the exercise of the purchase option by the Borrower in the
ADP transaction, which Indebtedness is evidenced by a note in the form of Annex
A (with such changes as shall have been approved by the Administrative Agent and
two or more of the other Agents), shall constitute "Qualifying Holdings Debt",
as such term is defined in the Credit Agreement.
3
3. This Amendment shall not become effective until the date on which the
following conditions precedent shall have been satisfied, or waived by the
Issuing Bank, the Agents and the Required Lenders in writing (such date being
referred to herein as the "Amendment Effective Date"):
(a) the Administrative Agent shall have received fully executed
counterparts of this Amendment executed by the Loan Parties,
the Issuing Bank and all of the Agents, together with the
consent of the Required Lenders to this Amendment as set forth
hereinbelow;
(b) all fees and other charges presently due and payable to the
Administrative Agent or any Lender pursuant to any Loan
Document shall have been paid by the Borrower;
(c) all out-of-pocket expenses incurred by the Agents and invoiced
by March 27, 2002 in connection with the Credit Agreement,
this Amendment, the Side Letter, any other Loan Document or
the transactions contemplated by any of the foregoing
(including, without limitation, the reasonable fees and
disbursements of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, Xxxxx
Xxxx & Xxxxxxxx, Xxxxxxxx & Sterling, Xxxxxxx Xxxxxxx &
Xxxxxxxx and PricewaterhouseCoopers LLP ("PWC")), shall have
been paid by the Borrower; and
(d) all legal matters incident to this Amendment and the effects
hereof or any of the Loan Documents shall be reasonably
satisfactory to the Agents and their counsel.
4. Each of the Loan Parties represents and warrants to the Agents and the
Lenders that (X) the execution, delivery and performance by the Loan Parties of
this Amendment and the performance by each of them of the Side Letter as
modified by this Amendment (i) have been duly authorized by all requisite
corporate, partnership or limited liability company action (as applicable) on
the part of each such Loan Party; and (ii) will not violate (a) any provision of
any statute, rule or regulation, or the Certificate of Incorporation or By-laws
(or similar governing documents) of any of the Loan Parties or (b) any
applicable order of any court or any rule, regulation or order of any other
agency of government; and (Y) upon the occurrence of the Amendment Effective
Date, this Amendment will constitute the legal, valid and binding obligation of
the Loan Parties, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law).
5. The Loan Parties hereby agree that in the event any Loan Party or
Unrestricted Subsidiary shall fail to observe or perform any agreement set forth
in the Side Letter as amended by this Amendment, such event shall be an
immediate Event of Default under the Credit Agreement not requiring any notice,
lapse of time or other action on the part of any of the Agents or the Lenders;
and the Administrative Agent and/or the Required Lenders may exercise any and
all remedies it or they may have pursuant to any of the Loan Documents or other
applicable law.
6. THE BORROWER HEREBY (A) CONFIRMS AND ACKNOWLEDGES TO THE ADMINISTRATIVE AGENT
AND THE LENDERS THAT IT IS VALIDLY AND JUSTLY INDEBTED TO THE ADMINISTRATIVE
AGENT AND THE LENDERS FOR THE PAYMENT OF ALL OBLIGATIONS (AS DEFINED IN THE
CREDIT AGREEMENT) WITHOUT OFFSET, DEFENSE, CAUSE OF ACTION OR COUNTERCLAIM OF
ANY KIND OR NATURE WHATSOEVER AND (B) REAFFIRMS AND ADMITS THE VALIDITY AND
ENFORCEABILITY OF THE CREDIT AGREEMENT AND THE LOAN DOCUMENTS AND
4
THE LIENS IN THE COLLATERAL WHICH WERE GRANTED PURSUANT TO ANY OF THE LOAN
DOCUMENTS OR OTHERWISE. EACH OF THE LOAN PARTIES, ON ITS OWN BEHALF AND ON
BEHALF OF ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVES, RELEASES AND DISCHARGES
EACH AGENT AND EACH LENDER AND ALL OF THE AFFILIATES OF EACH AGENT AND EACH
LENDER, AND ALL OF THE DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS,
SUCCESSORS AND ASSIGNS OF EACH AGENT, EACH LENDER AND SUCH AFFILIATES, FROM ANY
AND ALL CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION (KNOWN AND UNKNOWN) ARISING
OUT OF OR IN ANY WAY RELATING TO ANY OF THE LOAN DOCUMENTS AND ANY DOCUMENTS,
AGREEMENTS, DEALINGS OR OTHER MATTERS CONNECTED WITH ANY OF THE LOAN DOCUMENTS,
IN EACH CASE TO THE EXTENT ARISING (X) ON OR PRIOR TO THE DATE HEREOF OR (Y) OUT
OF, OR RELATING TO, ACTIONS, DEALINGS OR MATTERS OCCURRING ON OR PRIOR TO THE
DATE HEREOF.
7. HOLDINGS AND EACH SUBSIDIARY LOAN PARTY HEREBY (A) CONFIRMS AND AGREES THAT
ITS GUARANTEE PURSUANT TO THE CREDIT AGREEMENT OR SUBSIDIARY GUARANTEE (AS
APPLICABLE) IS, AND SHALL CONTINUE TO BE, IN FULL FORCE AND EFFECT AND IS HEREBY
CONFIRMED AND RATIFIED IN ALL RESPECTS; (B) CONFIRMS AND ACKNOWLEDGES THAT IT IS
VALIDLY AND JUSTLY INDEBTED TO THE ADMINISTRATIVE AGENT AND THE LENDERS FOR THE
PAYMENT OF ALL OF THE OBLIGATIONS WHICH IT HAS GUARANTEED, WITHOUT OFFSET,
DEFENSE, CAUSE OF ACTION OR COUNTERCLAIM OF ANY KIND OF NATURE WHATSOEVER; AND
(C) REAFFIRMS AND ADMITS THE VALIDITY AND ENFORCEABILITY OF THE CREDIT AGREEMENT
AND THE LOAN DOCUMENTS TO WHICH IT IS A PARTY AND THE LIENS IN THE COLLATERAL
WHICH WERE GRANTED BY IT PURSUANT TO ANY OF THE LOAN DOCUMENTS OR OTHERWISE.
8. The Borrower acknowledges and agrees that its obligations set forth in
Section 10.03 of the Credit Agreement include the preparation, execution and
delivery of this Amendment, and any other documentation contemplated hereby,
including, but not limited to, the reasonable fees and disbursements of Xxxxxxxx
Chance Xxxxxx & Xxxxx LLP, counsel to the Administrative Agent, Xxxxxxx Xxxxxxx
& Xxxxxxxx, counsel to the Syndication Agent, Shearman and Sterling, counsel to
the Co-Documentation Agents, and PWC.
9. This Amendment shall be limited precisely as written and shall not be deemed
(i) to be a consent granted pursuant to, or a waiver or modification of, any
other term or condition of the Side Letter or any of the instruments or
agreements referred to therein or a waiver of any Default or Event of Default
under the Credit Agreement, whether or not known to the Agents or the Lenders or
(ii) to prejudice any right or rights which the Administrative Agent or the
Lenders may now have or have in the future under or in connection with any Loan
Document or any of the instruments or agreements referred to in a Loan Document.
The Administrative Agent (on behalf of itself and the Lenders) and the other
Agents hereby expressly reserve all of the Administrative Agent's, the other
Agents' and the Lenders' (as applicable) respective rights and remedies under
the Credit Agreement and each of the other Loan Documents, as well as under
applicable law. No failure to exercise, delay in exercising or any singular or
partial exercise, by the Administrative Agent, the Agents or any of the Lenders,
of any right, power or remedy hereunder or any of the other Loan Documents shall
operate as a waiver thereof, nor shall any of the Loan Documents (including,
without limitation, the Side Letter) be construed as a standstill or a
forbearance by any of the Agents or the Lenders of their rights and remedies
thereunder. Except to the extent hereby modified, the Side Letter shall continue
in full force and effect in accordance with the provisions thereof
5
on the date hereof and the Side Letter as modified by this Amendment is hereby
ratified and confirmed. As used in the Side Letter, the terms "Side Letter,"
"this Agreement," "herein," "hereafter," "hereto," "hereof," and words of
similar import, shall, unless the context otherwise requires, mean the Side
Letter as modified by this Amendment. Reference to the terms "Side Letter"
appearing in the other Loan Documents shall, unless the context otherwise
requires, mean the Side Letter as modified by this Amendment. This Amendment
shall be deemed to have been jointly drafted, and no provision of it shall be
interpreted or construed for or against any party hereto because such party
purportedly prepared or requested such provision, any other provision, or this
Amendment as a whole.
10. This Amendment may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument. Delivery of an
executed signature page to this Amendment by facsimile shall be as effective as
delivery of a manually executed counterpart of this Amendment.
11. Any provision of this Amendment which is invalid, illegal or unenforceable
under the applicable law of any jurisdiction, shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without invalidating the remaining provisions hereof, and any such invalidity,
illegality or unenforceability in any jurisdiction shall not invalidate such
provision in any other jurisdiction.
12. No failure on the part of the Administrative Agent, the Issuing Bank or any
Lender to exercise, and no delay in exercising, any right, power or remedy under
this Amendment shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy
whether provided in any Loan Document or otherwise. All remedies hereunder are
cumulative and are not exclusive of any other remedies under any other Loan
Document or provided by applicable law.
13. All references herein to any of the parties to this Amendment shall be
deemed to include the successors and assigns of such party; provided, however,
that none of the Loan Parties may assign any of its rights or obligations
hereunder or under the Side Letter without the prior written consent of the
Agents, the Issuing Bank and all of the Lenders, and all covenants, promises and
agreements by or on behalf of any of the Loan Parties which are contained herein
shall inure to the benefit of each of the Lenders and to the successors and
assigns of any of the Agents, the Issuing Bank and any of the Lenders.
14. This Amendment is a Loan Document pursuant to the Credit Agreement and shall
(unless expressly indicated herein or therein) be construed, administered, and
applied, in accordance with all of the terms and provisions of the Credit
Agreement.
15. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WHICH ARE APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
16. The provisions of this Amendment shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
6
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the day and the year first above written.
BORROWER:
XXXXXXXX COMMUNICATIONS, LLC
[STAMP] By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
HOLDINGS:
XXXXXXXX COMMUNICATIONS GROUP, INC.
[STAMP] By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
SUBSIDIARY LOAN PARTIES:
CRITICAL CONNECTIONS, INC.
WCS COMMUNICATIONS SYSTEMS, INC.
WCS, INC.
XXXXXXXX COMMUNICATIONS OF VIRGINIA, INC.
XXXXXXXX COMMUNICATIONS PROCUREMENT, L.L.C.
XXXXXXXX COMMUNICATIONS PROCUREMENT, XX
XXXXXXXX GLOBAL COMMUNICATIONS
HOLDINGS, INC.
XXXXXXXX INTERNATIONAL VENTURES COMPANY
XXXXXXXX LEARNING NETWORK, INC.
XXXXXXXX LOCAL NETWORK, LLC
XXXXXXXX TECHNOLOGY CENTER, LLC
XXXXXXXX COMMUNICATIONS MANAGED
SERVICES, LLC
XXXXXXXX COMMUNICATIONS MANAGED SERVICES
OF CALIFORNIA, INC.
[STAMP] By: /s/ XXXXXX X. XXXXXX
----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
7
[AMENDMENT NO. 4 TO SIDE LETTER]
ISSUING BANK AND AGENTS:
BANK OF AMERICA, N.A., as Administrative Agent
and as Issuing Bank
By: /s/ XXXX X. XXXXXXX III
---------------------------------------------
Name: Xxxx X. Xxxxxxx III
Title: Managing Director
Address: Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
Fax No.: (000) 000-0000
XX XXXXXX XXXXX BANK
(formerly The Chase Manhattan Bank), as
Syndication Agent and as Issuing Bank
By: /s/ XXXXXXXXX X. XXXXXXX
---------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX XXXXXX INC.,
as Co-Documentation Agent
By: /s/ XXXX XXXXXX
---------------------------------------------
Name: XXXX XXXXXX
Title: [ILLEGIBLE]
XXXXXX BROTHERS, INC.,
as Co-Documentation Agent
By: /s/ [ILLEGIBLE]
---------------------------------------------
Name: [ILLEGIBLE]
Title: Senior Vice President
XXXXXXX XXXXX & CO.
as Co-Documentation Agent
By: /s/ XXXXX X. X. XXXXXX
---------------------------------------------
Name: Xxxxx X. X. Xxxxxx
Title: Director
8
[AMENDMENT NO. 4 TO SIDE LETTER]
BY SIGNING IN THE APPROPRIATE SPACE BELOW, THE UNDERSIGNED HEREBY
CONSENT TO THE FOREGOING AMENDMENT NO. 4 TO THE SIDE LETTER AND TO THE EXECUTION
THEREOF BY THE AGENTS AND THE ISSUING BANK.
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ XXXX X. XXXXXXX III
----------------------------------------------
Name: Xxxx X. Xxxxxxx III
Title: Managing Director
XX XXXXXX CHASE BANK
(formerly The Chase Manhattan Bank)
By: /s/ XXXXXXXXX X. XXXXXXX
----------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
CITICORP USA, INC.
By: /s/ XXXX XXXXXX
----------------------------------------------
Name: Xxxx Xxxxxx
Title: [ILLEGIBLE]
XXXXXX COMMERCIAL PAPER INC.
By: /s/ [ILLEGIBLE]
----------------------------------------------
Name: [ILLEGIBLE]
Title: Authorized Signatory
XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/ XXXXX X. X. XXXXXX
----------------------------------------------
Name: Xxxxx X. X. Xxxxxx
Title: Vice President
9
[AMENDMENT NO. 4 TO SIDE LETTER]
ABN AMRO BANK N.V.
By:
----------------------------------------------
Name:
Title:
By:
----------------------------------------------
Name:
Title:
BANK OF MONTREAL
By:
----------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
BANK OF OKLAHOMA N.A.
By:
----------------------------------------------
Name:
Title:
BANK ONE, N.A.
By:
----------------------------------------------
Name:
Title:
10
[AMENDMENT NO. 4 TO SIDE LETTER]
BAYERISCHE HYPOVEREINS BANK, NEW YORK BRANCH
(formerly Bank Austria Creditanstalt Corporate
Finance, Inc.)
By:
----------------------------------------------
Name:
Title:
By:
----------------------------------------------
Name:
Title:
CIBC INC.
By: /s/ XXXXXXXXXX XXXXXXX
----------------------------------------------
Name: Xxxxxxxxxx Xxxxxxx
Title: Executive Director
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXXXX X. XXXXXXX
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ XXXXX X. XXXXXX
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
By: /s/ XXXXXXX XXXXX
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
11
[AMENDMENT NO. 4 TO SIDE LETTER]
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By:
----------------------------------------------
Name:
Title:
By:
----------------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
----------------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By:
----------------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By:
----------------------------------------------
Name:
Title:
IBM CREDIT CORPORATION
By:
----------------------------------------------
Name:
Title:
12
[AMENDMENT NO. 4 TO SIDE LETTER]
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
By:
----------------------------------------------
Name:
Title:
KBC BANK, N.V.
By:
----------------------------------------------
Name:
Title:
By:
----------------------------------------------
Name:
Title:
XXXXXXX XXXXX GLOBAL ALLOCATION FUND, INC.
By:
----------------------------------------------
Name:
Title:
XXXXXXX XXXXX SERIES FUNDS, INC. Global
Allocation Strategy Portfolio
By:
----------------------------------------------
Name:
Title:
XXXXXXX XXXXX VARIABLE SERIES FUNDS, INC. Global
Allocation Focus Fund
By:
----------------------------------------------
Name:
Title:
13
[AMENDMENT XX. 0 XX XXXX XXXXXX]
X0 XXX XXX, LTD
By: Amalgamated Gadget, L.P., as Investment Manager
By: Scepter Holdings, Inc., its General Partner
By:
------------------------------------------------
Name:
Title:
SCOTIABANC INC.
By:
----------------------------------------------
Name:
Title:
STANDARD BANK LONDON LIMITED
By:
----------------------------------------------
Name:
Title:
XXXXXXXXX ARBITRAGE CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------------
Name:
Title:
XXXXXXXXX CLO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------------
Name:
Title:
XXXXXXXXX/RMF TRANSATLANTIC CDO, LTD
By Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------------
Name:
Title:
14
[AMENDMENT NO. 4 TO SIDE LETTER]
WINDSOR LOAN FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------------
Name:
Title:
ARK II CLO 2001-I, LIMITED
By: Patriarch Partners II, LLC,
its Collateral Manager
By: /s/ XXXX XXXXXX
----------------------------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
XXXXXXXX CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By:
----------------------------------------------
Name:
Title:
CONTRARIAN FUNDS, LLC
By: Contrarian Capital Management, LLC
as Manager
15
[AMENDMENT NO. 4 TO SIDE LETTER]
By:
----------------------------------------------
Name:
Title:
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset Management
as Investment Manager
By:
----------------------------------------------
Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS
By:
----------------------------------------------
Name:
Title:
SANKATY HIGH YIELD PARTNERS II LP
By:
----------------------------------------------
Name:
Title:
AHAB PARTNERS, L.P.
By:
----------------------------------------------
Name:
Title:
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, L.L.C.
its General Partner
By:
----------------------------------------------
Name:
Title:
16
[AMENDMENT NO. 4 TO SIDE LETTER]
