EX-10.1



 





Exhibit 10.1




THIRD AMENDMENT



TO FINANCING AGREEMENT




     THIRD AMENDMENT, dated as of October 8, 2004 (this “Amendment”), to the
Financing Agreement, dated as of April 23, 2004 (as amended, restated or
otherwise modified from time to time, the “Financing Agreement”), by and among
aaiPharma Inc., a Delaware corporation (the “Parent”), Applied Analytical
Industries Learning Center, Inc., a Delaware corporation (“Applied
Analytical”), AAI Technologies, Inc., a Delaware corporation (“AAI
Technologies”), AAI Properties, Inc., a North Carolina corporation (“AAI
Properties”), AAI Japan, Inc., a Delaware corporation (“AAI Japan”), Kansas
City Analytical Services, Inc., a Kansas corporation (“Analytical Services”),
AAI Development Services, Inc., a Massachusetts corporation (“AAI
Development-MA”), aaiPharma LLC, a Delaware limited liability company (“Pharma
LLC”) and AAI Development Services, Inc., a Delaware corporation (“AAI
Development-DE”, and together with the Parent, Applied Analytical, AAI
Technologies, AAI Properties, AAI Japan, Analytical Services, AAI
Development-MA and Pharma LLC, each a “Borrower” and collectively, the
“Borrowers”), the financial institutions from time to time party hereto (each a
“Lender” and collectively, the “Lenders”), Silver Point Finance, LLC, a
Delaware limited liability company (“Silver Point”), as collateral agent for
the Lenders (in such capacity, and any successor in such capacity, the
“Collateral Agent”), and Bank of America, N.A. (“Bank of America”), as
administrative agent for the Lenders (in such capacity, and any successor in
such capacity, the “Administrative Agent” and together with the Collateral
Agent, each an “Agent” and collectively, the “Agents”).



     WHEREAS, the Borrowers, the Agents and the Lenders wish to amend certain
terms and conditions of the Financing Agreement as hereafter set forth;



     NOW, THEREFORE, the Borrowers, the Agents and the Lenders hereby agree as
follows:



     1. Capitalized Terms. All terms which are defined in the Financing
Agreement and not otherwise defined herein are used herein as defined therein.
In addition, as used in this Amendment, the following terms shall have the
respective meanings indicated below, such meanings to be applicable equally to
both the singular and plural forms of such terms:




     “Specified Events” means, collectively, (a) the amendment of the MVI
Sale Agreement pursuant to the terms of Amendment No. 2 to the MVI Sale
Agreement dated as of September 16, 2004, pursuant to which the Parent
will receive an accelerated purchase price adjustment under the MVI Sale
Agreement, (b) the Disposition of the Parent’s rights to its Calcitriol
product pursuant to the terms of the Termination Agreement by and between
the Parent and SICOR Pharmaceuticals, Inc., on terms substantially the
same as the terms set forth in the draft Termination Agreement provided
by the Parent to the Collateral Agent on the date hereof, and (c) the
Disposition of the Parent’s Investment in Aesgen, Inc. pursuant to the
terms of the Agreement and Plan of Merger and Reorganization, dated as of
August 30, 2004, among MGI Pharma, Inc.,



 









 





MGIP Acquisition Corp., Aesgen Inc. and Timothy I. Maudlin, as
equityholder’s representative.




     “Specified Proceeds” means the Net Cash Proceeds received by the
Loan Parties in connection with the Specified Events.




     “Third Amendment Effective Date” has the meaning specified therefor
in Section 4 of this Amendment.



     2. Amendments to Financing Agreement.




	(a)	 	Existing Definitions.






          (i) The definition of the term “Availability” in Section 1.01 of the
Financing Agreement is hereby amended in its entirety to read as follows:




     “‘Availability’ means, at any time, the difference between (i) the
Total Revolving Credit Commitment and (ii) the sum of (A) the aggregate
outstanding principal amount of all Revolving Loans, (B) all Letter of
Credit Obligations and (C) the aggregate amount of all reserves
established by the Administrative Agent at the direction of the
Collateral Agent pursuant to the terms of this Agreement and the other
Loan Documents.”




          (ii) The definition of the term “Consolidated EBITDA” in Section
1.01 of the Financing Agreement is hereby amended in its entirety to read
as follows:

`



     “‘Consolidated EBITDA’ means, with respect to any Person for any
period, the sum of (a) the Consolidated Net Income of such Person and its
Subsidiaries for such period, plus (b) without duplication, the sum of
the following amounts of such Person and its Subsidiaries for such period
and to the extent deducted in determining Consolidated Net Income of such
Person for such Period: (i) Consolidated Net Interest Expense, (ii)
income, value-added, franchise and other similar tax expense, (iii)
depreciation expense, (iv) amortization expense, (v) any other non-cash
charges, expenses and losses, (vi) the Specified Costs and Expenses,
(vii) other non-recurring cash charges and costs incurred in connection
with Acquisitions and Dispositions permitted under this Agreement
(including Acquisitions and Dispositions permitted as a result of being
approved by the Required Lenders), to the extent such charges and costs
are approved by the Collateral Agent, (viii) other non-recurring
restructuring charges (including severance costs and plant closure costs)
made in accordance with FASB Statement of Financial Accounting Standards
Board No. 146, (ix) (A) non-recurring professional fees associated with
the Special Committee Investigation, the pending Securities and Exchange
Commission and Department of Justice investigations involving the
Borrowers, and/or the operational or debt restructuring of the Borrowers
incurred during the fiscal quarter of the Parent and its Subsidiaries
ended September 30, 2004 in an aggregate amount not to exceed $3,000,000
and (B) non-recurring professional fees associated with the Special
Committee Investigation, the pending Securities and Exchange Commission
and Department of Justice investigations involving the Borrowers, and/or
the operational or debt



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restructuring of the Borrowers incurred during the two fiscal
quarters of the Parent and its Subsidiaries ended December 31, 2004 in an
aggregate amount not to exceed $5,900,000, and (x) non-cash charges for
impairment losses on intangible assets made in accordance with FASB
Statement of Financial Accounting Standards No. 142.”




          (iii) The definition of the term “MVI Sale Agreement” in Section
1.01 of the Financing Agreement is hereby amended in its entirety to read
as follows:




     “‘MVI Sale Agreement’ means, collectively, (i) the Asset Purchase
Agreement, dated as of February 27, 2004 among the Parent, Pharma LLC and
Mayne Pharma (USA) Inc., as amended by Amendment No. 1 to Asset Purchase
Agreement dated as of April 22, 2004 and Amendment No. 2 to Asset
Purchase Agreement dated as of September 16, 2004, and (ii) the other
agreements listed on Schedule 1.01(E).”



     (b) Mandatory Prepayments. Section 2.05(c)(v) of the Financing Agreement
is hereby amended by deleting the parenthetical in clause (x)(2) of the proviso
at the end thereof and substituting in lieu thereof the following:



“(and concurrently with such application to the Revolving Loans, the
Administrative Agent shall, at the direction of the Collateral Agent,
establish and maintain a corresponding reserve to Availability in the
amount so applied, which reserve shall be released by the Administrative
Agent upon the request of the Administrative Borrower and at the
direction of the Collateral Agent (which direction shall be given upon
such request by the Administrative Borrower complying with this Section
2.05(c)(v)) at such time as the Borrowers re-borrow funds in such amount
to be applied in accordance with either of clauses (y) or (z)(2) of this
clause (v))”



     (c) Application of Payments. Section 2.05(d) of the Financing Agreement
is hereby amended by deleting the paragraph at the end thereof and substituting
in lieu thereof the following:



“Notwithstanding anything to the contrary contained in this Section
2.05(d), after the occurrence and during the continuance of an Event of
Default, all prepayments of the Loans pursuant to Section 2.05(c) shall
be applied (or, in the case of prepayments that have been temporarily
applied to the Revolving Loans pending final application thereof as
permitted under the relevant provisions of clause (v) of Section 2.05(c),
shall be re-credited) in accordance with Section 4.04(b).”



     (d) Interest and Fees. Section 2.05(e) of the Financing Agreement is
hereby amended by deleting clause (ii) therein and substituting in lieu thereof
the following:



“(ii) in the case of any prepayment made pursuant to Section 2.05(a)
(excluding the first sentence of Section 2.05(a)(i) thereof) or Section
2.05(c)(iii), any Applicable Prepayment Premium.”



     (e) Unused Line Fee. Section 2.06(a) of the Financing Agreement is hereby
amended by (i) inserting the words “actual daily” immediately before the word
“excess”



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therein and (ii) deleting the word “average” immediately before the words
“principal amount” therein.



     (f) Compliance with Law, Etc. Section 6.01(h) of the Financing Agreement
is hereby amended by deleting clause (iii) therein and substituting in lieu
thereof the following:




“(iii) the Senior Subordinated Note Indenture (other than the default in
the payment of interest due under the Senior Subordinated Note Indenture
on October 1, 2004) or any material term of any Material Contract, and no
Default or Event of Default has occurred and is continuing.”



     (g) Financial Covenants.




          (i) Section 7.03(b) of the Financing Agreement is hereby amended by
inserting therein the following sentence at the end thereof:



“Notwithstanding the foregoing, (i) if Consolidated EBITDA of the Parent
and its Subsidiaries for the fiscal quarter of the Parent and its
Subsidiaries ended September 30, 2004 is greater than $2,000,000, then
the Leverage Ratio of the Parent and its Subsidiaries shall not be tested
under this Section 7.03(b) as of the end of such period and (ii) if
Consolidated EBITDA of the Parent and its Subsidiaries for the two fiscal
quarters of the Parent and its Subsidiaries ended December 31, 2004 is
greater than $7,000,000, then the Leverage Ratio of the Parent and its
Subsidiaries shall not be tested under this Section 7.03(b) as of the end
of such period.”




          (ii) Section 7.03(c) of the Financing Agreement is hereby amended by
inserting therein the following sentence at the end thereof:




“Notwithstanding the foregoing, (i) if Consolidated EBITDA of the Parent
and its Subsidiaries for the fiscal quarter of the Parent and its
Subsidiaries ended September 30, 2004 is greater than $2,000,000, then
the Fixed Charge Coverage Ratio of the Parent and its Subsidiaries shall
not be tested under this Section 7.03(c) as of the end of such period and
(ii) if Consolidated EBITDA of the Parent and its Subsidiaries for the
two fiscal quarters of the Parent and its Subsidiaries ended December 31,
2004 is greater than $7,000,000, then the Fixed Charge Coverage Ratio of
the Parent and its Subsidiaries shall not be tested under this Section
7.03(c) as of the end of such period.”




          (iii) Section 7.03 of the Financing Agreement is hereby amended by
adding the following new subsection (e) at the end thereof:



     “(e) Minimum Revenues. Permit the gross revenues of the Parent and
its Subsidiaries for the fiscal quarter of the Parent and its
Subsidiaries ending December 31, 2004 to be less than $40,000,000.”



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          (h) Schedules. Schedules 6.01(x) and 6.01(aa) to the Financing Agreement
are hereby amended by adding to each such Schedule the information set forth on
Annex A attached hereto.



     3. Waiver and Consent.



          (a) Pursuant to the request of the Borrowers and in accordance with
Section 12.02 of the Financing Agreement, the Agents and the Lenders hereby (i)
consent to, and waive any Event of Default that has or would otherwise arise
under Section 9.01(a) or Section 9.01(c) of the Financing Agreement by reason
of the occurrence of the Specified Events described in clauses (a) and (c) of
the definition thereof and (ii) agree that the Specified Proceeds received by
the Borrowers in connection with the Specified Events shall not be required to
be applied in accordance with Section 2.05(c) of the Financing Agreement;
provided, that no Event of Default (other than those waived herein) has
occurred and is continuing at the time of receipt of any such Specified
Proceeds or would result therefrom.



          (b) The waivers and consents in this Section 3 shall be effective only in
this specific instance and for the specific purpose set forth herein and do not
allow for any other or further departure from the terms and conditions of the
Financing Agreement or any other Loan Document, which terms and conditions
shall continue in full force and effect. The Borrowers hereby acknowledge and
agree that it shall be an Event of Default under the Financing Agreement (as to
which no grace period shall apply) if the Borrowers use Specified Proceeds
other than in accordance with this Section 3.



     4. Conditions. This Amendment shall become effective only upon
satisfaction in full of the following conditions precedent (the first date upon
which all such conditions have been satisfied being herein called the “Third
Amendment Effective Date”):



          (a) Representations and Warranties; No Event of Default. The
representations and warranties contained herein, in Article VI of the Financing
Agreement and in each other Loan Document are true and correct on and as of the
Third Amendment Effective Date as though made on and as of such date, except to
the extent that any such representation or warranty expressly relates solely to
an earlier date (in which case such representation or warranty shall be true
and correct on and as of such earlier date); and no Event of Default (other
than those waived herein) shall have occurred and be continuing on the Third
Amendment Effective Date either immediately before or after giving effect to
this Amendment in accordance with its terms.



          (b) Delivery of Documents. The Collateral Agent shall have received on or
before the Third Amendment Effective Date, the following, each in form and
substance reasonably satisfactory to the Collateral Agent and, unless otherwise
indicated, dated as of the Third Amendment Effective Date:



               (i) counterparts of this Amendment, duly executed by the Borrowers,
the Agents and the Lenders;



               (ii) a certificate of an Authorized Officer of each Loan Party,
certifying as to the matters set forth in clause (a) of this Section 4;
and



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               (iii) such other agreements, instruments, approvals, opinions and
other documents as the Collateral Agent may reasonably request.



          (c) Proceedings. All proceedings in connection with the transactions
contemplated by this Amendment, and all documents incidental hereto, shall be
reasonably satisfactory to the Collateral Agent and its counsel.



          (d) Fees, Etc. The Borrowers shall have paid all fees, costs, expenses
and taxes then payable by the Borrowers pursuant to the Financing Agreement and
the other Loan Documents, including, without limitation, Section 2.06 and 12.04
of the Financing Agreement.



     5. Representations and Warranties. Each Borrower represents and warrants
as follows:



          (a) Organization, Good Standing, Etc. Each Borrower (i) is a corporation
or limited liability company, as the case may be, duly organized, validly
existing and in good standing under the laws of the state of its organization
other than to the extent that the failure to be in good standing in such state
could not reasonably be expected to have a Material Adverse Effect and (ii) has
all requisite power and authority to execute, deliver and perform this
Amendment, and to perform the Financing Agreement, as amended hereby.



          (b) Authorization, Etc. The execution, delivery and performance by each
Borrower of this Amendment and the performance by each Borrower of the
Financing Agreement, as amended hereby (i) have been duly authorized by all
necessary action, (ii) do not and will not violate or create a default under
any such Borrower’s organizational documents or any applicable law or any
material term of any Material Contract, and (iii) except as provided in the
Loan Documents, do not and will not result in or require the creation of any
Lien upon or with respect to any of such Borrower’s property.



          (c) Governmental Approvals. No authorization or approval or other action
by, and no notice to or filing with, any Governmental Authority or other
regulatory body is required in connection with (i) the due execution, delivery
and performance by each Borrower of this Amendment or (ii) the performance by
each Borrower of the Financing Agreement, as amended hereby.



          (d) Enforceability of Loan Documents. Each of this Amendment and the
Financing Agreement, as amended hereby, and the other Loan Documents, is a
legal, valid and binding obligation of each Borrower party hereto, enforceable
against such Borrower in accordance with the terms thereof, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally.



          (e) Representations and Warranties; No Default. The representations and
warranties contained herein, in Article VI of the Financing Agreement and in
each other Loan Document are true and correct on and as of the Third Amendment
Effective Date as though made on and as of such date, except to the extent that
any such representation or warranty expressly relates solely to an earlier date
(in which case such representation or warranty shall be true and correct on and
as of such earlier date); and no Event of Default (other than those waived
herein)



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shall have occurred and be continuing on the Third Amendment Effective
Date either immediately before or after giving effect to this Amendment in
accordance with its terms.



     6. Continued Effectiveness of the Financing Agreement.



          (a) Ratifications. Except as otherwise expressly provided herein, (i) the
Financing Agreement and the other Loan Documents are, and shall continue to be,
in full force and effect and are hereby ratified and confirmed in all respects,
except that on and after the Third Amendment Effective Date (A) all references
in the Financing Agreement to “this Agreement”, “hereto”, “hereof”, “hereunder”
or words of like import referring to the Financing Agreement shall mean the
Financing Agreement as amended by this Amendment and (B) all references in the
other Loan Documents to the “Financing Agreement”, “thereto”, “thereof”,
“thereunder” or words of like import referring to the Financing Agreement shall
mean the Financing Agreement as amended by this Amendment, (ii) to the extent
that the Financing Agreement or any other Loan Document purports to pledge to
the Collateral Agent, or to grant to the Collateral Agent a security interest
in or lien on, any collateral as security for the Obligations, such pledge or
grant of a security interest or lien is hereby ratified and confirmed in all
respects, and (iii) the execution, delivery and effectiveness of this Amendment
shall not operate as an amendment of any right, power or remedy of the Agents
or the Lenders under the Financing Agreement or any other Loan Document, nor
constitute an amendment of any provision of the Financing Agreement or any
other Loan Document.



          (b) No Waivers. Except as otherwise expressly provided herein, this
Amendment is not a waiver of, or consent to, any Default or Event of Default
now existing or hereafter arising under the Financing Agreement or any other
Loan Document and the Agents and the Lenders expressly reserve all of their
rights and remedies under the Financing Agreement and the other Loan Documents,
under applicable law or otherwise.



          (c) Amendment as Loan Document. Each Borrower confirms and agrees that
this Amendment shall constitute a Loan Document under the Financing Agreement.
Accordingly, it shall be an Event of Default under the Financing Agreement if
any representation or warranty made or deemed made by any Borrower under or in
connection with this Amendment shall have been incorrect in any material
respect when made or deemed made or if any Borrower fails to perform or comply
with any covenant or agreement contained herein.



     7. Release. Each Borrower hereby acknowledges and agrees that: (a)
neither it nor any of its Affiliates has any claim or cause of action against
any Agent or any Lender (or any of their respective Affiliates, officers,
directors, employees, attorneys, consultants or agents) and (b) each Agent and
each Lender has heretofore properly performed and satisfied in a timely manner
all of its obligations to the Borrowers and their Affiliates under the
Financing Agreement and the other Loan Documents. Notwithstanding the
foregoing, the Agents and the Lenders wish (and the Borrowers agree) to
eliminate any possibility that any past conditions, acts, omissions, events or
circumstances would impair or otherwise adversely affect any of the Agents’ and
the Lenders’ rights, interests, security and/or remedies under the Financing
Agreement and the other Loan Documents. Accordingly, for and in consideration
of the agreements contained in this Amendment and other good and valuable
consideration, each Borrower (for itself and its Affiliates and the successors,
assigns, heirs and representatives of each of the foregoing)



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(collectively, the “Releasors”) does hereby fully, finally,
unconditionally and irrevocably release and forever discharge each Agent, each
Lender and the L/C Issuer and each of their respective Affiliates, officers,
directors, employees, attorneys, consultants and agents (collectively, the
“Released Parties”) from any and all debts, claims, obligations, damages,
costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and
causes of action, in each case, whether known or unknown, contingent or fixed,
direct or indirect, and of whatever nature or description, and whether in law
or in equity, under contract, tort, statute or otherwise, which any Releasor
has heretofore had or now or hereafter can, shall or may have against any
Released Party by reason of any act, omission or thing whatsoever done or
omitted to be done on or prior to the Third Amendment Effective Date arising
out of, connected with or related in any way to this Amendment, the Financing
Agreement or any other Loan Document, or any act, event or transaction related
or attendant thereto, or the agreements of any Agent or any Lender contained
therein, or the possession, use, operation or control of any of the assets of
any Borrower, or the making of any Loans or other advances, or the management
of such Loans or advances or the Collateral.



     8. Miscellaneous.



          (a) Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Amendment by telefacsimile or electronic mail shall be equally effective
as delivery of an original executed counterpart of this Amendment.



          (b) Headings. Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.



          (c) Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.



          (d) Expenses. The Borrowers will pay on demand all reasonable fees, costs
and expenses of the Agents in connection with the preparation, execution and
delivery of this Amendment and all documents incidental hereto, including,
without limitation, the reasonable fees, disbursements and other charges of
Schulte Roth & Zabel LLP, counsel to the Collateral Agent.



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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.


	 	 	 	 	 
	 	BORROWERS:



AAIPHARMA INC.

 	 
	 	By:  	/s/ Ludo
Reynders	 
	 	 	Name:  Ludo Reynders
	 	 	Title:  President and Chief Executive
Officer
	 



	 	 	 	 	 
	 	APPLIED ANALYTICAL INDUSTRIES LEARNING 

CENTER, INC.

 	 
	 	By:  	/s/
Gregory S. Bentley	 
	 	 	Name:  Gregory S. Bentley	 
	 	 	Title:  Vice President	 
	 



	 	 	 	 	 
	 	AAI TECHNOLOGIES, INC.

 	 
	 	By:  	/s/
Gregory S. Bentley	 
	 	 	Name:  Gregory S. Bentley	 
	 	 	Title:  Vice President	 
	 



	 	 	 	 	 
	 	AAI PROPERTIES, INC.

 	 
	 	By:  	/s/
Gregory S. Bentley	 
	 	 	Name:  Gregory S. Bentley	 
	 	 	Title:  Vice President	 
	 



	 	 	 	 	 
	 	AAI JAPAN, INC.

 	 
	 	By:  	/s/
Gregory S. Bentley	 
	 	 	Name:  Gregory S. Bentley	 
	 	 	Title:  Vice President	 
	 



	 	 	 	 	 
	 	KANSAS CITY ANALYTICAL SERVICES, INC.

 	 
	 	By:  	/s/
Gregory S. Bentley	 
	 	 	Name:  Gregory S. Bentley	 
	 	 	Title:  Vice President	 




 









 






	 	 	 	 	 



	 	 	 	 	 
	 	AAI DEVELOPMENT SERVICES, INC.

 	 
	 	By:  	/s/
Gregory S. Bentley	 
	 	 	Name:  Gregory S. Bentley	 
	 	 	Title:  Vice President	 
	 



	 	 	 	 	 
	 	AAIPHARMA LLC

 	 
	 	By:  	/s/
Gregory S. Bentley	 
	 	 	Name:  Gregory S. Bentley	 
	 	 	Title:  Vice President	 
	 



	 	 	 	 	 
	 	AAI DEVELOPMENT SERVICES, INC.

 	 
	 	By:  	/s/
Gregory S. Bentley	 
	 	 	Name:  Gregory S. Bentley	 
	 	 	Title:  Vice President	 



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	 	COLLATERAL AGENT:





SILVER POINT FINANCE, LLC,

as Collateral Agent

 	 
	 	By:  	/s/
Edward A. Mulé	 
	 	 	Name:  Edward A. Mulé	 
	 	 	Title:  Authorized
Signatory	 
	 



	 	 	 	 	 
	 	ADMINISTRATIVE AGENT:





BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	/s/
Annie Cuenco	 
	 	 	Name:  Annie Cuenco	 
	 	 	Title:  Assistant Vice President	 
	 



	 	 	 	 	 
	 	LENDERS:





BANK OF AMERICA, N.A.,

as L/C Issuer

 	 
	 	By:  	/s/
Adonis A. Hembrick	 
	 	 	Name:  Adonis A. Hembrick	 
	 	 	Title:  Vice President	 
	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as a Lender

 	 
	 	By:  	/s/
Adonis A. Hembrick	 
	 	 	Name:  Adonis A. Hembrick	 
	 	 	Title:  Vice President	 
	 



	 	 	 	 	 
	 	SEA PINES FUNDING LLC,

as a Lender

 	 
	 	By:  	/s/
Diana M. Himes	 
	 	 	Name:  Diana M. Himes	 
	 	 	Title:  Assistant Vice President	 



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	 	TRS THEBE LLC,

as a Lender

 	 
	 	By:  	/s/
Alice L. Wagner	 
	 	 	Name:  Alice L. Wagner	 
	 	 	Title:  Vice President	 
	 



	 	 	 	 	 
	 	SIL LOAN FUNDING LLC,

as a Lender

 	 
	 	By:  	/s/
Jason Trala	 
	 	 	Name:  Jason Trala	 
	 	 	Title:  Attorney-In-Fact	 
	 



	 	 	 	 	 
	 	SILVER POINT ONSHORE CDO, LLC,

as a Lender

 	 
	 	By:  	/s/
Edward A. Mulé	 
	 	 	Name:  Edward A. Mulé	 
	 	 	Title:  Authorized
Signatory	 
	 



	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as a Lender

 	 
	 	By:  	/s/ Mark
DeNatale	 
	 	 	Name:  Mark DeNatale	 
	 	 	Title:  Authorized
Signatory	 



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