Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT, dated as of December 10, 2004 (this
"Amendment"), to the $2,350,000,000 Amended and Restated Credit Agreement,
dated as of October 7, 2003 (as heretofore amended, supplemented or otherwise
modified, the "Credit Agreement"), among CENTERPOINT ENERGY, INC., a Texas
corporation ("Borrower"), the banks and other financial institutions from time
to time parties thereto (the "Banks"), CITIBANK, N.A., as syndication agent (in
such capacity, the "Syndication Agent"), DEUTSCHE BANK AG NEW YORK BRANCH,
CREDIT SUISSE FIRST BOSTON, BANK OF AMERICA, N.A., as co-documentation agents,
(in such capacities, the "Co-Documentation Agent"), and JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, the Borrower, the Banks, the Syndication Agent, the
Co-Documentation Agents and the Administrative Agent are parties to the Credit
Agreement;
WHEREAS, in connection with the acquisition of the
outstanding Capital Stock of Texas Genco held by the public (the "Texas Genco
Stock Purchase"), Texas Genco intends to obtain financing to consummate the
Texas Genco Stock Purchase in an aggregate amount of up to $717,000,000 (the
"Texas Genco Financing");
WHEREAS, the Borrower has requested that the Banks agree to
amend certain provisions contained in the Credit Agreement to permit the Texas
Genco Financing, and the Banks and the Administrative Agent are agreeable to
such request upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises herein
contained and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein,
capitalized terms used herein which are defined in the Credit Agreement are
used herein as therein defined.
2. Amendments to Section 1.1 of the Credit Agreement
(Certain Defined Terms).
Section 1.1 of the Credit Agreement is hereby amended by
adding the following defined terms in the appropriate alphabetical order as
follows:
"First Amendment" means the First Amendment to this Agreement
dated as of December 10, 2004.
"Texas Genco Financing" has the meaning specified in the
First Amendment.
3. Amendments to Section 7.2 of the Credit Agreement
(Negative Covenants). Section 7.2 of the Credit Agreement is hereby amended by:
(a) amending paragraph (b)(vi) thereof by adding after
the phrase "(x) Texas Genco and/or it Subsidiaries" the following:
"(to the extent that such entity is an indirect or direct Subsidiary
of the Borrower)";
(b) amending paragraph (c) thereof by adding after the
phrase "if, in the case of any Texas Genco Entity, Texas Genco or any
other Wholly-Owned Subsidiary of" the following: "Texas Genco or any
other Wholly-Owned Subsidiary of";
(c) amending paragraph (e) thereof by adding after the
first reference to "the Texas Genco Stock" in clause (x)(ii) thereof
the following: "or the Capital Stock of any Texas Genco Entity"; and
(d) amending paragraph (h) thereof by:
(i) adding after "Texas Genco or its
Subsidiaries" the following: "(to the extent that such entity
is an indirect or direct Subsidiary of the Borrower)"; and
(ii) adding at the end of paragraph (h) the
following: "plus the Texas Genco Financing so long as the
Texas Genco Financing is repaid in full within fourteen
calendar days after the Texas Genco Financing is incurred."
4. Conditions to Effectiveness. This Amendment shall
become effective as of the date set forth above upon satisfaction of the
following conditions precedent:
(a) The Administrative Agent shall have received
counterparts of this Amendment executed by Borrower and the Majority
Banks in accordance with Section 10.1 of the Credit Agreement; and
(b) All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with this
Amendment shall be in form and substance reasonably satisfactory to
the Administrative Agent.
5. Reference to and Effect on the Loan Documents;
Limited Effect. On and after the date hereof and the satisfaction of the
conditions contained in Section 4 of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby. The execution, delivery and effectiveness
of this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any Bank or the Administrative Agent
under any of the Loan Documents, nor constitute a waiver of any provisions of
any of the Loan Documents. Except as expressly amended herein, all of the
provisions and covenants of the Credit Agreement and the other Loan Documents
are and shall continue to remain in full force and effect in accordance with
the terms thereof and are hereby in all respects ratified and confirmed.
6. Representations and Warranties. The Borrower, as of
the date hereof and after giving effect to this Amendment, hereby confirms,
reaffirms and restates the representations and warranties made by it in Article
VI of the Credit Agreement and otherwise in the Loan Documents to which it is a
party (except for those representations or warranties or parts thereof that, by
their terms, expressly relate solely to a specific date, in which case such
representations and warranties shall be true and correct in all material
respects as of such specific date); provided that each reference to the Credit
Agreement therein shall be deemed to be a reference to the Credit Agreement
after giving effect to this Amendment.
7. Counterparts. This Amendment may be executed by one
or more of the parties hereto in any number of separate counterparts (which may
include counterparts delivered by facsimile transmission) and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Any executed counterpart delivered by facsimile transmission shall
be effective as an original for all purposes hereof. The execution and delivery
of this Amendment by any Bank shall be binding upon each of its successors and
assigns (including Transferees of its Commitments and Loans in whole or in part
prior to effectiveness hereof) and binding in respect of all of its Commitments
and Loans, including any acquired subsequent to its execution and delivery
hereof and prior to the effectiveness hereof.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their duly authorized officers as of
the date first written above.
CENTERPOINT ENERGY, INC.
By: /s/ Marc Kilbride
------------------------------------
Name: Marc Kilbride
Title: Vice President & Treasurer
JPMORGAN CHASE BANK, as Administrative
Agent and as a Bank
By: /s/ Robert Traband
------------------------------------
Name: Robert Traband
Title: Vice President
CITIBANK, N.A., as Syndication Agent
and as a Bank
By: /s/ Sandip Sen
------------------------------------
Name: Sandip Sen
Title: Managing Director
Signature Page
First Amendment to CenterPoint Credit Agreement
ABN AMRO BANK N.V., as a Bank
By: /s/ R. Scott Donaldson
------------------------------------
Name: R. Scott Donaldson
Title: Vice President
By: /s/ Stephanie B. Casas
------------------------------------
Name: Stephanie B. Casas
Title: Vice President
AIB DEBT MANAGEMENT LIMITED, as a Bank
By: /s/ Aidan Lanigan
------------------------------------
Name: Aidan Lanigan
Title: Vice President
By: /s/ Vaughn Buck
------------------------------------
Name: Vaughn Buck
Title: Senior Vice President
AIM FLOATING RATE FUND, as Sub-Advisor
By: /s/ Gregory Stoeckle
------------------------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
APEX (Trimaron) CDO I, LTD, as a Bank
By: Trimaron Advisors L.L.C.
By: /s/ David M. Millison
------------------------------------
Name: David M. Millison
Title: Managing Director
Atrium CDO, as a Bank
By: /s/ David H. Lerner
------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
AVALON CAPITAL LTD.
By: INESCO Senior Secured management,
Inc., as Portfolio Advisor
By: /s/ Gregory Stoeckle
------------------------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INESCO Senior Secured management,
Inc., as Portfolio Advisor
By: /s/ Gregory Stoeckle
------------------------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
Bank of America, N.A., as a Bank
By: /s/ Daryl Patterson
------------------------------------
Name: Daryl Patterson
Title: Senior Vice President
Barclays Bank PLC, as a Bank
By: /s/ Sydney G. Dennis
------------------------------------
Name: Sydney G. Dennis
Title: Director
Big Sky III Senior Loan Trust
By: Eaton Vance Management,
as Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
C-SQUARED CDO LTD.
By: TCW Advisors, Inc., as its
Portfolio Manager
By: /s/ Jonathan R. Insull
------------------------------------
Name: Jonathan R. Insull
Title: Managing Director
SANKATY ADVISORS, LLC AS COLLATERAL
MANAGER FOR CASTLE HILL I-INGOTS, LTD.,
as Term Lender
By: /s/ Timothy Barnes
------------------------------------
Name: Timothy Barnes
Title: Senior Vice President
SANKATY ADVISORS, LLC AS COLLATERAL
MANAGER FOR CASTLE HILL II-INGOTS,
LTD., as Term Lender
By: /s/ Timothy Barnes
------------------------------------
Name: Timothy Barnes
Title: Senior Vice President
SANKATY ADVISORS, LLC AS COLLATERAL
MANAGER FOR CASTLE HILL III CLO, LTD.,
as Term Lender
By: /s/ Timothy Barnes
------------------------------------
Name: Timothy Barnes
Title: Senior Vice President
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management,
Inc., as Investment Advisor
By: /s/ Gregory Stoeckle
------------------------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
CSAM Funding I, as a Bank
By: /s/ David H. Lerner
------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
CSAM Funding II, as a Bank
By: /s/ David H. Lerner
------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
CSAM Funding III, as a Bank
By: /s/ David H. Lerner
------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
CSAM Funding IV, as a Bank
By: /s/ David H. Lerner
------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
CELERITY CLO LIMITED
By: TCW Advisors Inc., as Agent
By: /s/ Richard F. Kurth
------------------------------------
Name: Richard F. Kurth
Title: Senior Vice President
By: /s/ Jonathan R. Insull
------------------------------------
Name: Jonathan R. Insull
Title: Managing Director
COSTANTINUS EATON VANCE CDO V
By: Eaton Vance Management, as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch, as a
Bank
By: /s/ S. William Fox
------------------------------------
Name: S. William Fox
Title: Director
By: /s/ David J. Dodd
------------------------------------
Name: David J. Dodd
Title: Associate
DEUTSCHE BANK AG NEW YORK BRANCH, as a
Bank
By: /s/ Richard Henshall
------------------------------------
Name: Richard Henshall
Title: Director
By: /s/ Joel Makowsky
------------------------------------
Name: Joel Makowsky
Title: Director
DIVERSIFIED CREDIT PORTFOLIO LTD.
By: INVESCO Senior Secured Management,
Inc. as Investment Advisor
By: /s/ Gregory Stoeckle
------------------------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management, as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE LIMITED DURATION INCOME
FUND
By: Eaton Vance Management, as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE VT FLOATING RATE INCOME
FUND
By: Eaton Vance Management, as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE SENIOR FLOATING RATE TRUST
By: Eaton Vance Management, as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE FLOATING RATE INCOME TRUST
By: Eaton Vance Management, as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE SENIOR LOAN FUND
By: Eaton Vance Management, as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE CDO III, LTD
By: Eaton Vance Management, as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE CDO VI LTD.
By: Eaton Vance Management, as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
ELF FUNDING TRUST I, as a Lender
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Todd Travers
------------------------------------
Name: Todd Travers
Title: Senior Portfolio Manager
EMERALD ORCHARD LIMITED
By: /s/ Masood Fikree
------------------------------------
Name: Masood Fikree
Title: Attorney In-Fact
Erste Bank Der Oesterreichischen
Sparkassen AG, as a Bank
By: /s/ Bryan J. Lynch
------------------------------------
Name: Bryan J. Lynch
Title: First Vice President
By: /s/ Patrick W. Kunkel
------------------------------------
Name: Patrick W. Kunkel
Title: Director, Erste Bank New York
Branch
FIRST 2004-II CLO, LTD.
By: TCW Advisors, Inc., its Collateral
Manager
By: /s/ Richard F. Kurth
------------------------------------
Name: Richard F. Kurth
Title: Senior Vice President
By: /s/ Jonathan R. Insull
------------------------------------
Name: Jonathan R. Insull
Title: Managing Director
First Dominion Funding II, as a Bank
By: /s/ David H. Lerner
------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
First Dominion Funding III, as a Bank
By: /s/ David H. Lerner
------------------------------------
Name: David H. Lerner
Title: Authorized Signatory
FIRST TRUST/FOUR CORNERS SENIOR
FLOATING RATE INCOME FUND, as a Lender
By: /s/ Steven Columbaro
------------------------------------
Name: Steven Columbaro
Title: Vice President
FIRST TRUST/FOUR CORNERS SENIOR
FLOATING RATE INCOME FUND II, as a
Lender
By: /s/ Steven Columbaro
------------------------------------
Name: Steven Columbaro
Title: Vice President
FORTRESS PORTFOLIO TRUST, as a Lender
By: /s/ Steven Columbaro
------------------------------------
Name: Steven Columbaro
Title: Vice President
FOXE BASIN CLO 2003, LTD.
By: Royal Bank of Canada as Collateral
Manager
By: /s/ Melissa Morano
------------------------------------
Name: Melissa Morano
Title: Authorized Signatory
Franklin Floating Rate Trust, as a Bank
Franklin Floating Rate Master Series,
as a Bank
Franklin Floating Rate Daily Access
Fund, as a Bank
Franklin Templeton Duration Income
Trust, as a Bank
By: /s/ Richard Hsu
------------------------------------
Name: Richard Hsu
Title: Vice President
GLENEAGLES TRADING LLC, as a Bank
By: /s/ Diana M. Himes
------------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
GRAYSON & CO
By: Boston Management and Research, as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
Harch CLO I, Ltd., as a Lender
By: /s/ Michael E. Lewitt
------------------------------------
Name: Michael E. Lewitt
Title: Authorized Signatory
HCM US LOANS MAC 43 LTD., as a Lender
By: Highland Capital Management, L.P.
as Attorney-in-Fact
By: /s/ Todd Travers
------------------------------------
Name: Todd Travers
Title: Senior Portfolio Manager
Hamilton CDO, Ltd.
By: Stanfield Capital Partners LLC,
as its Collateral Manager
By: /s/ Christopher E. Jansen
------------------------------------
Name: Christopher E. Jansen
Title: Managing Partner
HARBOUR TOWN FUNDING LLC, as a Bank
By: /s/ Diana M. Himes
------------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
HIGHLAND FLOATING RATE ADVANCE FUND
(f/k/a/ Columbia Floating Rate
Advantage Fund), as a Lender
By: Highland Capital Management, L.P.
its Investment Advisor
By: /s/ Todd Travers
------------------------------------
Name: Todd Travers
Title: Senior Portfolio Manager
HIGHLAND FLOATING RATE LIMITED
LIABILITY COMPANY (f/k/a/ Columbia
Floating Rate Limited Liability
Company), as a Lender
By: Highland Capital Management, L.P.
its Investment Advisor
By: /s/ Todd Travers
------------------------------------
Name: Todd Travers
Title: Senior Portfolio Manager
Indosuez Capital Funding VI Limited
By: Lyon Capital Management LLC as
Collateral Manager
By: /s/ Alexander B. Kenna
------------------------------------
Name: Alexander B. Kenna
Title: Portfolio Manager
INVESCO EUROPEAN CDO I S.A.
By: INVESCO Senior Secured Management,
Inc., as Collateral Manager
By: /s/ Gregory Stoeckle
------------------------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
JPMORGAN CHASE BANK, N.A. (successor by
merger to Bank One, N.A. (main office
Chicago))
By: /s/ Robert W. Traband
------------------------------------
Name: Robert W. Traband
Title: Vice President
KC CLO I LIMITED, as a Bank
By: /s/ MA
------------------------------------
Name:
Title:
By: /s/ MEF
------------------------------------
Name:
Title:
RESTORATION FUNDING CLO LTD., as a
Lender
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Todd Travers
------------------------------------
Name: Todd Travers
Title: Senior Portfolio Manager
RIVERA FUNDING LLC, as a Bank
By: /s/ Diana M. Himes
------------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
SAGAMORE CLO LTD.
By: INVESCO Senior Secured Management,
Inc., as Collateral Manager
By: /s/ Gregory Stoeckle
------------------------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
SARATOGA CLO I, LIMITED
By: INVESCO Senior Secured Management,
Inc., as Asset Manager
By: /s/ Gregory Stoeckle
------------------------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
SAWGRASS TRADING LLC, as a Bank
By: /s/ Diana M. Himes
------------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
SECURITY BENEFIT LIFE INSURANCE
COMPANY, as a Lender
By: /s/ Steven Columbaro
------------------------------------
Name: Steven Columbaro
Title: Vice President
SECURITY INCOME FUND-INCOME OPPORTUNITY
SERIES, as a Lender
By: /s/ Steven Columbaro
------------------------------------
Name: Steven Columbaro
Title: Vice President
SEMINOLE FUNDING LLC, as a Bank
By: /s/ Diana M. Himes
------------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ Michael B. Bothoff
------------------------------------
Name: Michael B. Bothoff
Title: Vice President
SEQUILS-LIBERTY, LTD.
By: INVESCO Senior Secured Management,
Inc. as Collateral Manager
By: /s/ Gregory Stoeckle
------------------------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
Stanfield Arbitrage CDO, Ltd.
By: Stanfield Capital Partners LLC,
as its Collateral Manager
By: /s/ Christopher E. Jansen
------------------------------------
Name: Christopher E. Jansen
Title: Managing Partner
Stanfield Carrera CLO, Ltd.
By: Stanfield Capital Partners LLC,
as its Asset Manager
By: /s/ Christopher E. Jansen
------------------------------------
Name: Christopher E. Jansen
Title: Managing Partner
Stanfield Quattro CLO, Ltd.
By: Stanfield Capital Partners LLC,
as its Collateral Manager
By: /s/ Christopher E. Jansen
------------------------------------
Name: Christopher E. Jansen
Title: Managing Partner
Stanfield/RMF Transatlantic CDO Ltd.
By: Stanfield Capital Partners LLC,
as its Collateral Manager
By: /s/ Christopher E. Jansen
------------------------------------
Name: Christopher E. Jansen
Title: Managing Partner
STANWICH LOAN FUNDING LLC, as a Bank
By: /s/ Diana M. Himes
------------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
TCW SELECT LOAN FUND, LIMITED
By: TCW Advisors, Inc., as its
Collateral Manager
By: /s/ Richard F. Kurth
------------------------------------
Name: Richard F. Kurth
Title: Senior Vice President
By: /s/ Jonathan R. Insull
------------------------------------
Name: Jonathan R. Insull
Title: Managing Director
TOLLI & CO.
By: EATON VANCE MANAGEMENT, as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
TORONTO DOMINION (NEW YORK), LLC
By: /s/ Masood Fikree
------------------------------------
Name: Masood Fikree
Title: Authorized Signatory
VELOCITY CLO, LTD.
By: TCW Advisors, Inc., its
Collateral Manager
By: /s/ Richard F. Kurth
------------------------------------
Name: Richard F. Kurth
Title: Senior Vice President
By: /s/ Jonathan R. Insull
------------------------------------
Name: Jonathan R. Insull
Title: Managing Director
Wachovia Bank, NA, as a Bank
By: /s/ Rotcher Watkins
------------------------------------
Name: Rotcher Watkins
Title: Managing Director
Windsor Loan Funding, Limited
By: Stanfield Capital Partners LLC
as its Investment Manager
By: /s/ Christopher E. Jansen
------------------------------------
Name: Christopher E. Jansen
Title: Managing Partner
LOAN FUNDING I LLC,
a wholly owned subsidiary of Citibank,
N.A.
By: TCW Advisors, Inc., as portfolio
manager of Loan Funding I LLC
By: /s/ Richard F. Kurth
------------------------------------
Name: Richard F. Kurth
Title: Senior Vice President
By: /s/ Jonathan R. Insull
------------------------------------
Name: Jonathan R. Insull
Title: Managing Director
LOAN FUNDING IV LLC, as a Lender
By: Highland Capital Management, L.P.
as Portfolio Manager
By: /s/ Todd Travers
------------------------------------
Name: Todd Travers
Title: Senior Portfolio Manger
LOAN FUNDING VII LLC, as a Lender
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Todd Travers
------------------------------------
Name: Todd Travers
Title: Senior Portfolio Manager
LOAN FUNDING IX LLC
By: INVESCO Senior Secured Management,
Inc. as Portfolio Manager
By: /s/ Gregory Stoeckle
------------------------------------
Name: Gregory Stoeckle
Title: Authorized Signatory
MACQUARIE/FIRST TRUST GLOBAL
INFRASTRUCTURE/UTILITIES DIVIDEND &
INCOME FUND, as a Lender
By: /s/ Steven Columbaro
------------------------------------
Name: Steven Columbaro
Title: Vice President
Merrill Lynch Capital Corp.
By: /s/ Carol J.F. Feeley
------------------------------------
Name: Carol J.F. Feeley
Title: Vice President
THE NORINCHUKIN BANK, NEW YORK BRANCH
through State Street Bank and Trust
Company N.A., as Fiduciary Custodian
By: Eaton Vance Management,
Attorney-in-fact
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
The Bank of Nova Scotia, as a Bank
By: /s/ Thane Rattew
------------------------------------
Name: Thane Rattew
Title: Managing Director
PAMCO CAYMAN LTD., as a Lender
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/ Todd Travers
------------------------------------
Name: Todd Travers
Title: Senior Portfolio Manager
By: PPM America, Inc., as
Attorney-in-fact, on behalf of
Jackson National Life Insurance
Company
By: /s/ David C. Wyman
------------------------------------
Name: David C. Wyman
Title: Managing Director
PPM SHADOW CREEK FUNDING LLC
By: /s/ Diana M. Himes
------------------------------------
Name: Diana M. Himes
Title: Assistant Vice President
PPM SPYGLASS FUNDING TRUST
By: /s/ Diana M. Himes
------------------------------------
Name: Diana M. Himes
Title: Authorized Agent
SANKATY ADVISORS, LLC, as Collateral
Manager FOR RACE POINT CLO, LIMITED, as
Term Lender
By: /s/ Timothy Barnes
------------------------------------
Name Timothy Barnes
Title: Senior Vice President
SANKATY ADVISORS, LLC, as Collateral
Manager FOR RACE POINT CLO II, LIMITED,
as Term Lender
By: /s/ Timothy Barnes
------------------------------------
Name Timothy Barnes
Title: Senior Vice President
ACKNOWLEDGEMENT AND CONSENT
Dated as of December 10, 2004
The undersigned does hereby (a) consent, acknowledge and
agree to the transactions described in the foregoing First Amendment and (b)
after giving effect to such First Amendment, (i) confirms, reaffirms and
restates the representations and warranties made by it in each Loan Document to
which it is a party (except for those representations or warranties or parts
thereof that, by their terms, expressly relate solely to a specific date, in
which case such representations and warranties shall be true and correct in all
material respects as of such specific date), (ii) ratifies and confirms the
Pledge Agreement and (iii) confirms and agrees that the Pledge Agreement is,
and shall continue to be, in full force and effect, with the Collateral
described therein securing, and continuing to secure, the payment of all
obligations of the undersigned referred to therein; provided that each
reference to the Credit Agreement therein and in each of the other Credit
Documents shall be deemed to be a reference to the Credit Agreement after
giving effect to such First Amendment.
UNITY HOLDING, LLC
By: /s/ Patricia F. Genzel
------------------------------------
Name: Patricia F. Genzel
Title: President