ex10_33.htm











Exhibit 10.33


 



Portions of this agreement have been omitted and separately filed with the SEC with a request for confidential treatment.  The location of those omissions have been noted by  [**].







Execution Version


 




FIRST AMENDMENT


 


FIRST AMENDMENT, dated as of December 21, 2010 (this “First Amendment”), to the CREDIT AGREEMENT, dated as of December 31, 2009 (the “Credit Agreement”), among (a) BUTLER ANIMAL HEALTH SUPPLY, LLC, a Delaware limited liability company (the “Borrower”), (b) the several banks and other financial institutions or entities from time to time parties to the Credit Agreement (the “Lenders”) and (c) JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”).


 


W I T N E S S E T H:


 


WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to the Credit Agreement;


 


WHEREAS, the Borrower intends to consummate the Armadillo Acquisition (as defined below) and the Iguana Acquisition (as defined below) (collectively, the “Acquisitions”);


 


WHEREAS, the Borrower has requested that certain covenants in Section 7 and Section 8 of the Credit Agreement be amended to permit the Armadillo Acquisition, the Iguana Acquisition and certain transactions contemplated in connection with the Acquisitions;


 


WHEREAS, the Borrower has requested that Section 4.2(c) of the Credit Agreement be waived in order to provide funds for the Iguana Acquisition with respect to Excess Cash Flow for the fiscal year ending December 31, 2010;


 


WHEREAS, the Borrower has requested that certain other provisions of the Credit Agreement be amended and/or waived as set forth herein; and


 


WHEREAS, the Required Lenders are willing to agree to such amendments and to such waiver, in each case, on the terms set forth herein;


 


NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the Borrower, the Administrative Agent and the Required Lenders hereby agree as follows:


 


I.        DEFINED TERMS


 


Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


 


II.        AMENDMENTS TO THE CREDIT AGREEMENT


 


A.   Amendments to Section 1.1 (Defined Terms).


 


1.    Section 1.1 of the Credit Agreement is hereby amended by adding the following definitions in proper alphabetical order:


 


“Armadillo”: the entity that will become a Subsidiary of the Borrower upon 


 





  





  











  








 


consummation of the Armadillo Acquisition, which is engaged primarily in the business of the Vet Software Business.


 


“Armadillo Acquisition”: the acquisition by the Borrower or a Wholly Owned Subsidiary of approximately [**]% of the issued and outstanding Capital Stock of Armadillo in exchange for cash consideration in an amount not to exceed $[**] (based on [**]% being acquired) and the Armadillo Contributed Assets, with the Armadillo Sellers retaining not more [**]% of the issued and outstanding Capital Stock of Armadillo, on the terms and conditions set forth in the Armadillo Acquisition Agreement.


 


“Armadillo Acquisition Agreement”:  a purchase agreement, expected to be dated no later than February 15, 2011, by and among the Armadillo Sellers, Armadillo, the Borrower and the other parties thereto.


 


“Armadillo Contributed Assets”:  the property of the Borrower, consisting of its Vet Software Business to be contributed to Armadillo upon or after the consummation of the Armadillo Acquisition having a book value of $[**] or less in the aggregate as reasonably determined by the Borrower.


 


“Armadillo Sellers”: the sellers named in the Armadillo Acquisition Agreement.


 


“First Amendment”: the First Amendment to this Agreement, dated as of December 21, 2010, among the Borrower, the Administrative Agent and the other parties thereto.


 


“First Amendment Effective Date”: as defined in the First Amendment.


 


“Iguana”: the entity that will become a Subsidiary of the Borrower upon consummation of the Iguana Acquisition, which is engaged primarily in the business of the Vet Software Business.


 


“Iguana Acquisition”: the acquisition by the Borrower, a Wholly Owned Subsidiary or Armadillo of approximately [**]% or more of the issued and outstanding Capital Stock of Iguana in exchange for cash consideration in an amount currently estimated not to exceed $[**] (based on [**]% being acquired), including acquisition of any additional shares of Armadillo to equalize ownership with the Iguana Sellers, with the Iguana Sellers retaining directly or indirectly approximately [**]% (or less) of the issued and outstanding Capital Stock of Iguana, on the terms and conditions set forth in the Iguana Acquisition Agreement


 


“Iguana Acquisition Agreement”:  a purchase agreement, expected to be dated no later than June 30, 2011, by and among the Iguana Sellers, Iguana, the Borrower and the other parties thereto.


 


“Iguana Sellers”: the sellers named in the Iguana Acquisition Agreement.


 


“Vet Software Business”: developing, marketing, distributing and maintaining veterinarian practice management and software solutions (including ancillary services) and, incidentally, selling office products and computer hardware to veterinarians.

 




2.    The definition of “Consolidated EBITDA” is hereby amended by 


 




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deleting the “and” immediately preceding clause (m) of such definition and inserting the following immediately before the semicolon at the end of clause (m):


 


“, and (n) any fees, costs and expenses accrued or payable in connection with the Armadillo Acquisition or the Iguana Acquisition or the entry into the First Amendment”


 


3.    The definition of “Excess Cash Flow” is hereby amended by deleting the “and” immediately preceding clause (b)(vii) of such definition, inserting in lieu thereof “,” and inserting the following immediately before the period at the end of clause (vii):


 


“, and (viii) amounts paid pursuant to Sections 8.8(o) or (p) (less, if the Armadillo Acquisition is consummated in 2011 and not 2010, the portion of the amount paid in connection with the Iguana Acquisition in 2011 in an amount equal to what the Excess Cash Flow prepayment would have been for 2010 but for Section III of the First Amendment)”







B.   Amendments to Section 7 (Affirmative Covenants).


 


1.     Section 7.10(a) of the Credit Agreement is hereby amended by deleting the parenthetical therein in its entirety and substituting in lieu thereof the following:


 


“(other than (w) any property described in paragraph (c) or (d) below and any interest in real property, (x) any property subject to a Lien expressly permitted by Section 8.3(g) or 8.3(j), (y) property acquired by any Excluded Foreign Subsidiary and (z) any property of Armadillo and any property of Iguana, unless and until Armadillo or Iguana, as the case may be, becomes a Wholly Owned Subsidiary of the Borrower (at which time this exclusion shall no longer apply with respect to such property of such Wholly Owned Subsidiary))”


 


2.     Section 7.10(b) of the Credit Agreement is hereby amended by deleting the second parenthetical therein in its entirety and substituting in lieu thereof the following:


 


“(other than (x) any such real property subject to a Lien expressly permitted by Section 8.3(g) or 8.3(j), (y) real property acquired by any Excluded Foreign Subsidiary and (z) any real property acquired by Armadillo and any real property acquired by Iguana, unless and until Armadillo or Iguana, as the case may be, becomes a Wholly Owned Subsidiary of the Borrower (at which time this exclusion shall no longer apply with respect to such real property of such Wholly Owned Subsidiary))”







3.     Section 7.10(c) of the Credit Agreement is hereby amended by deleting the first parenthetical therein in its entirety and substituting in lieu thereof the following:


 


“(other than (x) an Excluded Foreign Subsidiary and (y) solely with respect to clause (iii), Armadillo and Iguana, unless and until Armadillo or Iguana, as the case may be, becomes a Wholly Owned Subsidiary of the Borrower (at which time this exclusion shall no longer apply with respect to such Wholly Owned Subsidiary))”







4.     Section 7.10(d) of the Credit Agreement is hereby amended by deleting the first parenthetical therein in its entirety and substituting in lieu thereof the following:


 




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“(other than (x) by any Group Member that is an Excluded Foreign Subsidiary and (y) by Armadillo or Iguana, unless and until Armadillo or Iguana, as the case may be, becomes a Wholly Owned Subsidiary of the Borrower (at which time this exclusion shall no longer apply with respect to such new Excluded Foreign Subsidiary created or acquired after the Closing Date by such Wholly Owned Subsidiary))”



 




5.     Section 7.14 of the Credit Agreement is hereby amended by inserting the following sentence at the end of Section 7.14:


 


“Notwithstanding the foregoing, the provisions of this Section 7.14 shall not apply to or with respect to Armadillo or Iguana, unless and until Armadillo or Iguana, as the case may be, becomes a Wholly Owned Subsidiary of the Borrower (at which time this exclusion shall no longer apply with respect to such Wholly Owned Subsidiary).”







C. Amendments to Section 8 (Negative Covenants).


 


1.     Section 8.2(b)(ii) of the Credit Agreement is hereby amended by inserting after the words “of any Wholly Owned Guarantor” the phrase “(or Armadillo or Iguana in an aggregate amount for them not to exceed $[**] at any time outstanding).”


 


2.     Section 8.4 of the Credit Agreement is hereby amended by deleting the “and” following the semicolon in clause (d), deleting the period at the end of clause (e) and inserting in lieu thereof “; and” and inserting the following new clause (f):


 


                 “(F) Armadillo and Iguana may be merged into or consolidated with each other or Dispose of any or all assets to each other (upon liquidation or otherwise).”













3.     Section 8.5 of the Credit Agreement is hereby amended by deleting the “and” following the semicolon in clause (e), deleting the period at the end of clause (f) and inserting in lieu thereof “; ” and inserting the following new clauses (g) and (h) :


 


“(g) the Disposition of the Armadillo Contributed Assets; and”







“(h) the Disposition of assets by Armadillo to Iguana or by Iguana to Armadillo.”







4.     Section 8.6 of the Credit Agreement is hereby amended by deleting the “and” following the semicolon in clause (e), deleting the period at the end of clause (f) and inserting in lieu thereof “; ” and inserting the following new clauses (g) and (h):


 


“(g) Armadillo and Iguana may pay dividends ratably to their equity owners; and”







“(h) transactions permitted by Section 8.8(p).”


 


5.     Section 8.8 of the Credit Agreement is hereby amended by deleting the “and” following the semicolon in clause (m), deleting the period at the end of clause (n) and inserting in lieu thereof “;” and inserting the following new clauses (o) and (p):


 





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“(o) the Armadillo Acquisition and the Iguana Acquisition; provided that (i) the Borrower’s Liquidity after giving pro forma effect to the Armadillo Acquisition and the Iguana Acquisition and all Loans funded in connection therewith shall have exceeded the amount required in clause (iv) of the definition of Permitted Acquisitions and  (ii) promptly following the consummation of each of the Armadillo Acquisition and the Iguana Acquisition, the Borrower shall, and shall cause its applicable Subsidiaries to, pledge and deliver the Capital Stock acquired by the Borrower and its Subsidiaries in such acquisition as required by Section 7.10(c); and”


 


“(p) Investments acquired in satisfaction by the Borrower or a Wholly Owned Subsidiary of put rights or otherwise of the other holders of Armadillo or Iguana Capital Stock for cash payments (i) during fiscal year 2011 not to exceed $[**] in the aggregate, (ii) during fiscal year 2012 not to exceed $[**] in the aggregate and (iii) as long as after giving thereto there is no Default and on a pro forma basis the Borrower is in compliance with Section 8.1, during fiscal year 2013 and thereafter not to exceed the fair market value of the remaining Capital Stock of Armadillo and Iguana held by the Armadillo Sellers and the Iguana Sellers, respectively.”







6.     Section 8.9 of the Credit Agreement is hereby amended by deleting the “and” following the semicolon in clause (j), deleting the period at the end of clause (k) and inserting in lieu thereof “; and” and inserting the following new clause (l):


 


“(l) transactions among Armadillo and Iguana.”


7.     Section 8.13 of the Credit Agreement is hereby amended by inserting after the words  “any agreement”, the phrase “binding on any Group Member”.


 


8.     Section 8.17 of the Credit Agreement is hereby amended by inserting after the words “(other than payroll or benefit accounts”, the phrase “and, prior to them being wholly owned subsidiaries, deposit accounts opened by Armadillo or Iguana”


 


III.        WAIVER OF MANDATORY PREPAYMENT


 


The Required Lenders hereby waive the requirements set forth in Section 4.2(c) of the Credit Agreement with respect to Excess Cash Flow for the fiscal year ending December 31, 2010; provided that, notwithstanding the foregoing, the Borrower shall comply with the requirements set forth in Section 4.2(c) of the Credit Agreement (i) if either the Armadillo Acquisition or the Iguana Acquisition is not consummated prior to June 30, 2011, in which case the Excess Cash Flow Application Date in respect of such fiscal year shall be June 30, 2011 or (ii) following any earlier termination or abandonment of either the Armadillo Acquisition or the Iguana Acquisition, in which case such Excess Cash Flow Application Date shall be no later than the later of (a) five Business Days after the date of such termination or abandonment and (b) the date it would otherwise be under Section 4.2(c) of the Credit Agreement.


 



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IV.       REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and warrants to each of the Lenders and the Administrative Agent that as of the First Amendment Effective Date:


 


1.     Each of the representations and warranties made by any Loan Party in the Loan Documents are true and correct in all material respects on and as of the First Amendment Effective Date as if made on and as of such date except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;


 


2.     Immediately after giving effect to the First Amendment, no Default or Event of Default has occurred and is continuing; and


 


3.     This First Amendment has been duly authorized, executed and delivered by it and this First Amendment and the Credit Agreement, as amended hereby, constitutes its valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting the enforcement of creditors’ rights and subject to general equity principles (whether enforcement is sought by proceedings in equity or at law).


 


V.       EFFECTIVENESS


 


The amendments set forth in Section II of this First Amendment and the waiver set forth in Section III of this First Amendment shall become effective on the date (the “First Amendment Effective Date”) on which the following conditions precedent shall have been satisfied:







1.        First Amendment.  The Administrative Agent shall have received counterparts of this First Amendment, duly executed and delivered by the Borrower, the Required Lenders and the Administrative Agent.


 


2.        Acknowledgement.  The Administrative Agent shall have received the Acknowledgment and Confirmation, substantially in the form of Exhibit A hereto, executed and delivered by an authorized officer of the Borrower and each other Loan Party.  The Borrower, the Administrative Agent and the Lenders hereby affirm and adopt the Credit Agreement as amended by this First Amendment.


 


3.        Fees.  The Borrower (a) shall have paid and the Administrative Agent shall have received all fees due and payable pursuant to that certain fee letter agreement (the “Fee Letter”) dated as of December 20, 2010 among the Borrower and the Administrative Agent, including a consent fee to each Lender executing and delivering a counterpart of this First Amendment on or prior to 5:00 p.m. on December 17, 2010 (or such later time as the Borrower and the Administrative Agent shall agree) in an amount equal to [**]% of the outstanding Revolving Commitments and Term Loans of such Lender, and (b) shall have paid to the Administrative Agent and the Administrative Agent shall have received all fees and expenses required under this First Amendment to be paid on or before the First Amendment Effective Date (including, without limitation, the reasonable fees and expenses of legal counsel), to the extent 


 





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invoiced at least one Business Day prior to the First Amendment Effective Date, in each case in immediately available funds.


 


VI.       MISCELLANEOUS


 


A.    Continuing Effect of the Credit Agreement.  This First Amendment shall not constitute an amendment of any provision of the Credit Agreement not expressly referred to herein and shall not be construed as a waiver or consent to any further or future action on the part of the Borrower that would require a waiver or consent of the Lenders or the Administrative Agent.  Except as expressly amended hereby, the provisions of the Credit Agreement are and shall remain in full force and effect.  On and after the First Amendment Effective Date, (i) each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof”, or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement after giving effect to this First Amendment.


 


B.     Counterparts.  This First Amendment may be executed by the parties hereto in any number of separate counterparts (including emailed or facsimiled counterparts), each of which shall be deemed to be an original, and all of which taken together shall be deemed to constitute one and the same instrument.


 


C.     GOVERNING LAW.  THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


D.     Expenses.  The Borrower agrees to pay or reimburse the Administrative Agent and each Lender for all of their respective out-of-pocket costs and expenses incurred in connection with the preparation, negotiation and execution of this First Amendment, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent and each Lender.


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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.


 





	  	
BUTLER ANIMAL HEALTH SUPPLY, LLC, as Borrower


	  	  
	  	
By:

	/s/Leo E. McNeil
	  	 	Name:  Leo E. McNeil Title:  EVP/CFO
	  	
JPMORGAN CHASE BANK, N.A., as Administrative Agent and Lender


	  	  
	  	
By:

	
/s/Michelle Cipriani


	  	  	
Name:  Michelle Cipriani


Title:  Vice President


	  	
LANDMARK IV CDO LIMITED


By Aladdin Capital Management LLC, as Lender


	  	  
	  	
By:

	
/s/Thomas E. Bancroft


	  	  	
Name:  Thomas E. Bancroft


Title:  Designated Signatory


	  	
LANDMARK V CDO LIMITED


By Aladdin Capital Management LLC, as Lender


	  	  
	  	
By:

	
/s/Thomas E. Bancroft


	  	  	
Name:  Thomas E. Bancroft


Title:  Designated Signatory


	  	
LANDMARK VI CDO LTD


By Aladdin Capital Management LLC, as Lender


	  	  
	  	
By:

	
/s/Thomas E. Bancroft


	  	  	
Name:  Thomas E. Bancroft


Title:  Designated Signatory







 







[Signature Page to First Amendment Acknowledgment and Confirmation]


 






  





 











  






 




	  	
LANDMARK VIII CLO LTD


By Aladdin Capital Management LLC, as Lender


	  	  
	  	
By:

	
/s/Thomas E. Bancroft


	  	  	
Name:  Thomas E. Bancroft


Title:  Designated Signatory


	  	
LANDMARK IX CDO LTD


By Aladdin Capital Management LLC, as Lender


	 	 
	  	
By:

	
/s/Thomas E. Bancroft


	  	  	
Name:  Thomas E. Bancroft


Title:  Designated Signatory


	 	 	 
	  	
OWS CLO I, LTD/


One Wall Street CLO II, LTD/


US Bank Loan Fund (M)/


Veritas CLO II, B.V.,


as a Lender


	 	 
	  	
By:

	
/s/Josephine H. Shin


	  	  	
Name:  Josephine H. Shin


Title:  Senior Vice President


	 	 	 
	  	
As a Lender,


ARES VR CLO LTD.


	  	
BY:

	
ARES CLO MANAGEMENT VR, L.P., ITS INVESTMENT MANAGER


	  	  	
BY:

	
ARES CLO GP VR, LLC, ITS GENERAL PARTNER


	  	  
	  	
By:

	
/s/Jeff Moore


	  	  	
Name:  Jeff Moore


Title:  Vice President







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
ARES VIR CLO LTD.


	  	
BY:

	
ARES CLO MANAGEMENT VIR, L.P., ITS INVESTMENT MANAGER


	  	  	
BY:

	
ARES CLO GP VIR, LLC, ITS GENERAL PARTNER


	  	  
	  	
By:

	
/s/Jeff Moore


	  	  	
Name:  Jeff Moore


Title:  Vice President


 


	  	
Ares NF CLO XIII Ltd


	  	
By:

	
Ares NF CLO XIII Management, L.P., its collateral manager


	  	
By:

	
Ares NF CLO XIII Management LLC, its general partner


	  	  
	  	
By:

	
/s/Jeff Moore


	  	  	
Name:  Jeff Moore


Title:  Vice President


	  	
As a Lender,


Ares NF CLO XIV Ltd


	  	
By:

	
Ares NF CLO XIV Management, L.P., its collateral manager


	  	
By:

	
Ares NF CLO XIV Management LLC, its general partner


	  	  
	  	
By:

	
/s/Jeff Moore


	  	  	
Name:  Jeff Moore


Title:  Vice President


	 	 	 
	  	
Ares NF CLO XV Ltd


	  	
By:

	
Ares NF CLO XV Management, L.P., its collateral manager


	  	
By:

	
Ares NF CLO XV Management LLC, its general partner


	  	  
	  	
By:

	
/s/Jeff Moore


	  	  	
Name:  Jeff Moore


Title:  Vice President







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
BABSON CLO LTD. 2004-II


BABSON CLO LTD. 2005-I


BABSON CLO LTD. 2008-I


SUMMIT LAKE CLO, LTD.


VICTORIA FALLS CLO, LTD., as Lenders


 


	  	
By:

	
/s/Arthur J. McMahon, Jr.


	  	  	
Name:  Arthur J. McMahon, Jr.


Title:  Director


 


	  	
THE BANK OF TOKYO-MITSUBISHI UFJ TRUST COMPANY, as a Lender


 


	  	
By:

	
/s/Brian McNany


	  	  	
Name:  Brian McNany


Title:  Assistant Vice President


 


	  	
SAN GABRIEL CLO I, LTD., as a Lender


 


	  	
By:

	
/s/John Casparian


	  	  	
Name:

	
John Casparian


	  	  	
Title:

	
Co-President, Churchill Pacific Asset Management


	  	
SIERRA CLO II, LTD., as a Lender


 


	  	
By:

	
/s/John Casparian


	  	  	
Name:

	
John Casparian


	  	  	
Title:

	
Co-President, Churchill Pacific Asset Management


	  	  	  
	  	
WHITNEY CLO I, LTD., as a Lender


 


	  	
By:

	
/s/John Casparian


	  	  	
Name:

	
John Casparian


	  	  	
Title:

	
Co-President, Churchill Pacific Asset Management







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
CIFC Funding 2007-IV, Ltd., as a Lender


By:  Commercial Industrial Finance Corp., its Collateral Manager


 


	  	
By:

	
/s/Rob Milton


	  	  	
Name:  Rob Milton


Title:  Secretary


 


	  	
CRATOS CLO I, LTD., as a Lender


	  	
By:

	
Cratos CDO Management, LLC


As Attorney-in-Fact


	  	
By:

	
JMP Credit Advisors LLC, Its Manager


	  	 
	  	
By:

	
/s/Ronald J. Banks


	  	  	
Name:  Ronald J. Banks


Title:  Managing Director


 


	  	
Atrium IV, as a Lender


 


	  	
By:

	
/s/Louis Farano


	  	  	
Name:  Louis Farano


Title:  Authorized Signatory


 


	  	
CSAM Funding IV, as a Lender


 


	  	
By:

	
/s/Louis Farano


	  	  	
Name:  Louis Farano


Title:  Authorized Signatory


 


	  	
Madison Park Funding II, Ltd.


	  	
By:

	
Credit Suisse Alternative Capital, Inc. as collateral manager, as a Lender


	  	  
	  	
By:

	
/s/Louis Farano


	  	  	
Name:  Louis Farano


Title:  Authorized Signatory







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
NAVIGATOR CDO 2005, LTD., as a Lender


	  	
By:

	
GE Asset Management Inc., as Collateral Manager


	  	  
	  	
By:

	
/s/John Campos


	  	  	
Name:  John Campos


Title:  Authorized Signatory


 


	  	
NAVIGATOR CDO 2006, LTD., as a Lender


	  	
By:

	
GE Asset Management Inc., as Collateral Manager


	  	  
	  	
By:

	
/s/John Campos


	  	  	
Name:  John Campos


Title:  Authorized Signatory


 


	  	
GOLUB CAPITAL SENIOR LOAN OPPORTUNITY FUND, LTD.


	  	
By:

	
GOLUB CAPITAL INCORPORATED, as Collateral Manager, as a Lender


	  	  
	  	
By:

	
/s/Michael C. Loehrke


	  	  	
Name:  Michael C. Loehrke


Title:  Designated Signatory


 


	  	
GOLUB CAPITAL FUNDING CLO-8, Ltd.


By:  GOLUB CAPITAL PARTNERS MANAGEMENT LTD, as Collateral Manager, as a Lender


 


	  	
By:

	
/s/Michael C. Loehrke


	  	  	
Name:  Michael C. Loehrke


Title:  Designated Signatory


 


	  	
GOLUB CAPITAL FUNDING CLO 2007-1, LTD.


	  	
By:

	
GOLUB CAPITAL MANAGEMENT LLC,  as Collateral Manager, as a Lender


	  	  
	  	
By:

	
/s/Michael C. Loehrke


	  	  	
Name:  Michael C. Loehrke


Title:  Designated Signatory








 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 






  





  











  






 



	  	
Waterfront CLO 2007-1, Ltd., as a Lender


 


	  	
By:

	
/s/Robert E. Sydow


	  	  	
Name:

	
Robert E. Sydow


	  	  	
Title:

	
President


Grandview Capital Mgmt, LLC, as Investment Manager


 


	  	
BLCKSTONE / GSO SENIOR FLOATING RATE TERM FUND


	  	
By:

	
GSO / BLACKSTONE DEBT FUNDS MANAGEMENT LLC AS INVESTMENT ADVISER


 


	  	
By:

	
/s/Daniel H. Smith


	  	  	
Name:  Daniel H. Smith


Title:  Authorized Signatory


 


	  	
TRIBECA PARK CLO LTD.


	  	
By:

	
GSO / Blackstone Debt Funds Management LLC as Portfolio Manager


	  	  
	  	
By:

	
/s/Daniel H. Smith


	  	  	
Name:  Daniel H. Smith


Title:  Authorized Signatory


 


	  	
SUN LIFE ASSURANCE COMPANY of CANADA (US)


By:  GSO CP Holdings LP as Sub-Advisor


 


	  	
By:

	
/s/Daniel H. Smith


	  	  	
Name:  Daniel H. Smith


Title:  Authorized Signatory


 


	  	
COLUMBUS PARK CDO LTD.


By:  GSO / Blackstone Debt Funds Management LLC as Portfolio Manager


 


	  	
By:

	
/s/Daniel H. Smith


	  	  	
Name:  Daniel H. Smith


Title:  Authorized Signatory







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
CHELSEA PARK CLO LTD.


	  	
By:

	
GSO / Blackstone Debt Funds Management LLC as Portfolio Manager


	  	  
	  	
By:

	
/s/Daniel H. Smith


	  	  	
Name:  Daniel H. Smith


Title:  Authorized Signatory


 


	  	
GULF STREAM-COMPASS CLO 2005-I, LTD


	  	
By:

	
Gulf Stream Asset Management LLC


As Collateral Manager


	  	  
	  	
By:

	
/s/Stephen M. Riddell


	  	  	
Name:  Stephen M. Riddell


Title:  Portfolio Manager


 


	  	
GULF STREAM-COMPASS CLO 2005-II, LTD


	  	
By:

	
Gulf Stream Asset Management LLC


As Collateral Manager


	  	  
	  	
By:

	
/s/Stephen M. Riddell


	  	  	
Name:  Stephen M. Riddell


Title:  Portfolio Manager


 


	  	
GULF STREAM-SEXTANT CLO 2006-I, LTD


	  	
By:

	
Gulf Stream Asset Management LLC As Collateral Manager


 


	  	
By:

	
/s/Stephen M. Riddell


	  	  	
Name:  Stephen M. Riddell


Title:  Portfolio Manager


 


	  	
GULF STREAM-RASHINBAN CLO 2006-I, LTD


	  	
By:

	
Gulf Stream Asset Management LLC


As Collateral Manager


	  	  
	  	
By:

	
/s/Stephen M. Riddell


	  	  	
Name:  Stephen M. Riddell


Title:  Portfolio Manager







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
GULF STREAM-SEXTANT CLO 2007-I, LTD


	  	
By:

	
Gulf Stream Asset Management LLC


As Collateral Manager


	  	  
	  	
By:

	
/s/Stephen M. Riddell


	  	  	
Name:  Stephen M. Riddell


Title:  Portfolio Manager


 


	  	
NEPTUNE FINANCE CCS, LTD.


	  	
By:

	
Gulf Stream Asset Management LLC


As Collateral Manager


	  	  
	  	
By:

	
/s/Stephen M. Riddell


	  	  	
Name:  Stephen M. Riddell


Title:  Portfolio Manager


 


	  	
HS Finance, LLC, as a Lender


 


	  	
By:

	
/s/Ferdinand G. Jahnel


	  	  	
Name:  Ferdinand G. Jahnel


Title:  VP, Treasurer


 


	  	
LENDERS:


HillMark Funding Ltd.,


	  	
By:

	
HillMark Capital Management, L.P., as Collateral Manager, as Lender


	  	  
	  	
By:

	
/s/Mark Gold


	  	  	
Name:  Mark Gold


Title:  CEO


 


	  	
THE HUNTINGTON NATIONAL BANK, as a Lender


 


	  	
By:

	
/s/Amanda M. Sigg


	  	  	
Name:  Amanda M. Sigg


Title:  Vice President







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
ING Investment Management CLO I, LTD.


	  	  	  
	  	
By:

	
ING Investment Management Co.,


as its investment manager


	  	  	  
	  	
ING Investment Management CLO II, LTD.


	  	
By:

	
ING Alternative Asset Management LLC,


as its investment manager


	  	  	  
	  	
ING Investment Management CLO III, LTD.


	  	
By:

	
ING Alternative Asset Management LLC,


as its investment manager


 


	  	
ING Investment Management CLO V, LTD.


	  	
By:

	
ING Alternative Asset Management LLC,


as its investment manager


 


	  	
ING International (II) – Senior Loans


	  	
By:

	
ING Investment Management Co.,


as its investment manager


	  	  	  
	  	
By:

	
/s/Michel Prince, CPA


	  	  	
Name:  Michel Prince, CPA


Title:  Senior Vice President


 


	  	
KATONAH VII CLO LTD., as a Lender


 


	  	
By:

	
/s/Daniel Gilligan


	  	  	
Name:

	
Daniel Gilligan


	  	  	
Title:

	
Authorized Officer


Katonah Debt Advisors, L.L.C.


As Manager


 


	  	
KATONAH VIII CLO LTD., as a Lender


 


	  	
By:

	
/s/Daniel Gilligan


	  	  	
Name:

	
Daniel Gilligan


	  	  	
Title:

	
Authorized Officer


Katonah Debt Advisors, L.L.C.


As Manager








 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 






  





  











  






 



	  	
KATONAH IX CLO LTD., as a Lender


 


	  	
By:

	
/s/Daniel Gilligan


	  	  	
Name:

	
Daniel Gilligan


	  	  	
Title:

	
Authorized Officer


Katonah Debt Advisors, L.L.C.


As Manager


 


	  	
M&S Investment Holding I LLC, as a Lender


 


	  	
By:

	
/s/Michael Ashkin


	  	  	
Name:  Michael Ashkin


Title:  Member


 


	  	
MARATHON CLO I LTD, as a Lender


	  	
By:

	
Marathon Asset Management, L.P., its Collateral Manager


 


	  	
By:

	
/s/Louis T. Hanover


	  	  	
Name:  Louis T. Hanover


Title:  Authorized Signatory


 


	  	
MARATHON CLO II LTD, as a Lender


By:  Marathon Asset Management, L.P., its Collateral Manager


 


	  	
By:

	
/s/Louis T. Hanover


	  	  	
Name:  Louis T. Hanover


Title:  Authorized Signatory


 


	  	
Marlborough Street CLO Ltd., as a Lender


By:  Edwards Angell Palmer & Dodge LLP, Authorized Signatory


 


	  	
By:

	
/s/Illegible


	  	  	
A Member of the Firm







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
ILLINOIS STATE BOARD OF INVESTMENT


	  	
By:

	
McDonnell Investment Management, LLC, as Manager, as a Lender


 


	  	
By:

	
/s/Brian J. Murphy


	  	  	
Name:  Brian J. Murphy


Title:  Vice President


 


	  	
VENTURE III CDO LIMITED


By its investment advisor,


MJX Asset Management LLC, as a Lender


 


	  	
By:

	
/s/Kenneth Ostmann


	  	  	
Name:  Kenneth Ostmann


Title:  Director


 


	  	
VENTURE IV CDO LIMITED


By its investment advisor,


MJX Asset Management LLC, as a Lender


 


	  	
By:

	
/s/Kenneth Ostmann


	  	  	
Name:  Kenneth Ostmann


Title:  Director


 


	  	
VENTURE V CDO LIMITED


By its investment advisor,


MJX Asset Management LLC, as a Lender


 


	  	
By:

	
/s/Kenneth Ostmann


	  	  	
Name:  Kenneth Ostmann


Title:  Director


 


	  	
VENTURE VI CDO LIMITED


By its investment advisor,


MJX Asset Management LLC, as a Lender


 


	  	
By:

	
/s/Kenneth Ostmann


	  	  	
Name:  Kenneth Ostmann


Title:  Director







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
VENTURE VII CDO LIMITED


By its investment advisor,


MJX Asset Management LLC, as a Lender


 


	  	
By:

	
/s/Kenneth Ostmann


	  	  	
Name:  Kenneth Ostmann


Title:  Director


 


	  	
VENTURE VIII CDO LIMITED


By its investment advisor,


MJX Asset Management LLC, as a Lender


 


	  	
By:

	
/s/Kenneth Ostmann


	  	  	
Name:  Kenneth Ostmann


Title:  Director


 


	  	
NCRAM Senior Loan Trust 2005, as a Lender


 


	  	
By:

	
/s/Robert Hoffman


	  	  	
Name:

	
Robert Hoffman


	  	  	
Title:

	
Executive


Director


Nomura Corporate Research and Asset Management Inc., as Investment Adviser


 


	  	
Nomura Bond & Loan Fund, as a Lender


 


	  	
By:

	
/s/Robert Hoffman


	  	  	
Name:

	
Robert Hoffman


	  	  	
Title:

	
Executive Director


	  	  	
By:

	
Mitsubishi UFJ Trust & Banking Corporation as Trustee


	  	  	
By:

	
Nomura Corporate Research & Asset Management Inc. Attorney in Fact







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
OAK HILL CREDIT PARTNERS IV, LIMITED, as a Lender


	  	
By:

	
Oak Hill CLO Management IV, LLC


As Investment Manager


 


	  	
By:

	
/s/Scott D. Krase


	  	  	
Name:  Scott D. Krase


Title:  Authorized Person


 


	  	
OAK HILL CREDIT PARTNERS V, LIMITED, as a Lender


	  	
By:

	
Oak Hill Advisors, L.P. As Portfolio Manager


 


	  	
By:

	
/s/Scott D. Krase


	  	  	
Name:  Scott D. Krase


Title:  Authorized Person


 


	  	
OHA PARK AVENUE CLO I, LTD., as a Lender


	  	
By:

	
Oak Hill Advisors,


L.P. As Investment Manager


 


	  	
By:

	
/s/Scott D. Krase


	  	  	
Name:  Scott D. Krase


Title:  Authorized Person


 


	  	
OHA FINLANDIA CREDIT FUND, as a Lender


 


	  	
By:

	
/s/Scott D. Krase


	  	  	
Name:  Scott D. Krase


Title:  Authorized Person


 


	  	
FUTURE FUND BOARD OF GUARDIANS, as a Lender


	  	
By:

	
Oak Hill Advisors, L.P.


As its Investment Advisor


 


	  	
By:

	
/s/Scott D. Krase


	  	  	
Name:  Scott D. Krase


Title:  Authorized Person







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
OREGON PUBLIC EMPLOYEES RETIREMENT FUND, as a Lender


	  	
By:

	
Oak Hill Advisors, L.P.


As Investment Manager


 


	  	
By:

	
/s/ Scott D. Krase


	  	  	
Name:  Scott D. Krase


Title:  Authorized Person


 


	  	
GMAM GROUP PENSION TRUST I, as a Lender


By:  STATE STREET BANK AND TRUST COMPANY, solely as Trustee


 


	  	
By:

	
/s/ Timothy Norton


	  	  	
Name:  Timothy Norton


Title:  Officer







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	 	
OCTAGON INVESTMENT PARTNERS V, LTD.


	 	By:  	Octagon Credit Investors, LLC
	 	 	
as Portfolio Manager


	 	 	 
	 	
OCTAGON INVESTMENT PARTNERS VII, LTD.


	 	By:  	Octagon Credit Investors, LLC
	 	 	
as collateral manager


	 	 	 
	 	
OCTAGON INVESTMENT PARTNERS IX, LTD.


	 	By:  	Octagon Credit Investors, LLC
	 	 	
as Manager


	  	  	  
	  	
OCTAGON INVESTMENT PARTNERS IX, LTD.


	  	
By:

	
Octagon Credit Investors, LLC


as Collateral Manager


 


	  	
HAMLET II, LTD.


	  	
By:

	
Octagon Credit Investors, LLC


as Portfolio Manager


 


	  	
US Bank N.A., solely as trustee of the Doll Trust (for Qualified Institutional Investors only), (and not in its individual capacity)


	  	
By:

	
Octagon Credit Investors, LLC


as Portfolio Manager, as a Lender


 


	  	
By:

	
/s/Donald C. Young


	  	  	
Name:  Donald C. Young


Title:  Portfolio Manager


 


	  	
PANGAEA CLO 2007-1 LTD., as a Lender


	  	
By:

	
Pangaea Asset Management, LLC, its Collateral Manager


 


	  	
By:

	
/s/Ryan C. Metcalfe


	  	  	
Name:  Ryan C. Metcalfe


Title:  Director







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
Pioneer Floating Rate Trust, as a Lender


	  	
By:

	
Pioneer Investment Management, Inc.,


As advisor to each Lender above


 


	  	
By:

	
/s/Margaret C. Begley


	  	  	
Name:

	
Margaret C. Begley


	  	  	
Title:

	
Secretary and Associate General Counsel


 


	  	
PPM MONARCH BAY FUNDING LLC, as a Lender


 


	  	
By:

	
/s/Tara E. Kenny


	  	  	
Name:  Tara E. Kenny


Title:  Assistant Vice President


 


	  	
SERVES 2006-1 Ltd., as a Lender


 


	  	
By:

	
/s/David C. Wagner


	  	  	
PPM America, Inc., as Collateral Manager Name:  David C. Wagner


Title:  Managing Director


 


	  	
North Dakota State Investment Board, as a Lender


By:  Prudential Investment Management, Inc., as Collateral Manager


 


	  	
By:

	
/s/Joseph Lemanowicz


	  	  	
Name:  Joseph Lemanowicz


Title:  Vice President


 


	  	
Dryden IX – Senior Loan Fund 2005 p.l.c., as a Lender


By:  Prudential Investment Management, Inc., as Collateral Manager


 


	  	
By:

	
/s/Joseph Lemanowicz


	  	  	
Name:  Joseph Lemanowicz


Title:  Vice President








 


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Dryden VIII – Leveraged Loan CDO 2005, as a Lender


By:  Prudential Investment Management, Inc., as Collateral Manager


 


	  	
By:

	
/s/Joseph Lemanowicz


	  	  	
Name:  Joseph Lemanowicz


Title:  Vice President


 


	  	
Dryden XXI Leveraged Loan CDO LLC, as a Lender


By:  Prudential Investment Management, Inc., as Collateral Manager


 


	  	
By:

	
/s/Joseph Lemanowicz


	  	  	
Name:  Joseph Lemanowicz


Title:  Vice President


 


	  	
Dryden XVI – Leveraged Loan CDO 2006, as a Lender


	  	
By:

	
Prudential Investment Management, Inc., as Collateral Manager


 


	  	
By:

	
/s/Joseph Lemanowicz


	  	  	
Name:  Joseph Lemanowicz


Title:  Vice President


 


	  	
Dryden XI –Leveraged Loan CDO 2006, as a Lender


	  	
By:

	
Prudential Investment Management, Inc., as Collateral Manager


 


	  	
By:

	
/s/Joseph Lemanowicz


	  	  	
Name:  Joseph Lemanowicz


Title:  Vice President







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 




	  	
Prudential Bank Loan Fund of the Prudential Trust Company Collective Trust, as a Lender


By:  Prudential Investment Management, Inc., as Collateral Manager


 


	  	
By:

	
/s/Joseph Lemanowicz


	  	  	
Name:  Joseph Lemanowicz


Title:  Vice President


 


	  	
Raymond James Bank, as a Lender


 


	  	
By:

	
/s/Steven Paley


	  	  	
Name:  Steven Paley


Title:  Senior Vice President


 


	  	
CAVALRY CLO I, LTD


	  	
By:

	
Regiment Capital Management, LLC as its Investment Advisor


	  	
By:

	
Regiment Capital Advisors, LP its Manager and pursuant to deligated authority


	  	
By:

	
Regiment Capital Advisors, LLC its General Partner


	  	  	  
	  	
By:

	
/s/William J. Heffron


	  	  	
William J. Heffron


Authorized Signatory


 


	  	
Cornerstone CLO Ltd.


	 	
By:  

	Stone Tower Debt Advisors LLC
	 	 	
As Its Collateral Manager


	 	 	
as a Lender


 


	  	
By:

	
/s/Michael W. DelPercio


	  	  	
Name:  Michael W. DelPercio


Title:  Authorized Signatory







 


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Granite Ventures II Ltd.


	  	
By:

	
Stone Tower Debt Advisors LLC


As Its Collateral Manager


as a Lender


 


	  	
By:

	
/s/Michael W. DelPercio


	  	  	
Name:  Michael W. DelPercio


Title:  Authorized Signatory


 


	  	
Granite Ventures III Ltd.


	  	
By:

	
Stone Tower Debt Advisors LLC


As Its Collateral Manager


as a Lender


 


	  	
By:

	
/s/Michael W. DelPercio


	  	  	
Name:  Michael W. DelPercio


Title:  Authorized Signatory


 


	  	
Rampart CLO 2007 Ltd.


	  	
By:

	
Stone Tower Debt Advisors LLC


As Its Collateral Manager


as a Lender


 


	  	
By:

	
/s/Michael W. DelPercio


	  	  	
Name:  Michael W. DelPercio


Title:  Authorized Signatory


 


	  	
Rampart CLO 2006-1 Ltd.


	  	
By:

	
Stone Tower Debt Advisors LLC


As Its Collateral Manager


as a Lender


 


	  	
By:

	
/s/Michael W. DelPercio


	  	  	
Name:  Michael W. DelPercio


Title:  Authorized Signatory







 


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Stone Tower CLO III Ltd.


	  	
By:

	
Stone Tower Debt Advisors LLC


As Its Collateral Manager


as a Lender


 


	  	
By:

	
/s/Michael W. DelPercio


	  	  	
Name:  Michael W. DelPercio


Title:  Authorized Signatory


 


	  	
Stone Tower CLO IV Ltd.


	  	
By:

	
Stone Tower Debt Advisors LLC


As Its Collateral Manager


as a Lender


 


	  	
By:

	
/s/Michael W. DelPercio


	  	  	
Name:  Michael W. DelPercio


Title:  Authorized Signatory


 


	  	
Stone Tower CLO V Ltd.


	  	
By:

	
Stone Tower Debt Advisors LLC


As Its Collateral Manager


as a Lender


 


	  	
By:

	
/s/Michael W. DelPercio


	  	  	
Name:  Michael W. DelPercio


Title:  Authorized Signatory


 


	  	
Stone Tower CLO VI Ltd.


	  	
By:

	
Stone Tower Debt Advisors LLC


As Its Collateral Manager


as a Lender


 


	  	
By:

	
/s/Michael W. DelPercio


	  	  	
Name:  Michael W. DelPercio


Title:  Authorized Signatory








 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 






  





  











  






 



	  	
Stone Tower CLO VII Ltd.


	  	
By:

	
Stone Tower Debt Advisors LLC


As Its Collateral Manager


as a Lender


 


	  	
By:

	
/s/Michael W. DelPercio


	  	  	
Name:  Michael W. DelPercio


Title:  Authorized Signatory


 


	  	
Founders Grove CLO, Ltd.


	  	
By:

	
Tall Tree Investment Management, LLC


as Collateral Manager, as a Lender


 


	  	
By:

	
/s/Michael J. Starshak Jr.


	  	  	
Name:  Michael J. Starshak Jr.


Title:  Officer


 


	  	
Grant Grove CLO, Ltd.


	  	
By:

	
Tall Tree Investment Management, LLC


as Collateral Manager, as a Lender


 


	  	
By:

	
/s/Michael J. Starshak Jr.


	  	  	
Name:  Michael J. Starshak Jr.


Title:  Officer


 


	  	
Muir Grove CLO, Ltd.


	  	
By:

	
Tall Tree Investment Management, LLC


as Collateral Manager, as a Lender


 


	  	
By:

	
/s/Michael J. Starshak Jr.


	  	  	
Name:  Michael J. Starshak Jr.


Title:  Officer


 


	  	
TORONTO DOMINION (NEW YORK) LLC,


as a Lender


 


	  	
By:

	
/s/David Perlman


	  	  	
Name:  David Perlman


Title:  Vice President







 


[Signature Page to First Amendment Acknowledgment and Confirmation]


 




  





  











  






 



	  	
U.S. BANK NATIONAL ASSOCIATION, as a Lender


 


	  	
By:

	
/s/CHRISTOPHER T. KORDES


	  	  	
Name:  CHRISTOPHER T. KORDES


Title:  SENIOR VICE PRESIDENT


 


	  	
Each of the persons listed on Annex A, Severally but not jointly, As Lender


	  	
By:

	
Wellington Management Company, LLP, as investment advisor


 


	  	
By:

	
/s/Robert J. Toner


	  	  	
Name:  Robert J. Toner


Title:  Vice President & Counsel


 


	  	
WhiteHorse II, Ltd.


WhiteHorse Capital Partners, L.P.


As collateral manager


WhiteRock Asset Advisor, LLC, its G.P.,


as a Lender


 


	  	
By:

	
/s/Jay Carvell


	  	  	
Name:  Jay Carvell


Title:  Manager


 


	  	
WhiteHorse III, Ltd.


WhiteHorse Capital Partners, L.P.


As collateral manager


WhiteRock Asset Advisor, LLC, its G.P.,


as a Lender


 


	  	
By:

	
/s/Jay Carvell


	  	  	
Name:  Jay Carvell


Title:  Manager










 


[Signature Page to First Amendment Acknowledgment and Confirmation]