AMENDMENT NO. 9 AND WAIVER TO AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 10.31
[Execution]
AMENDMENT NO. 9 AND WAIVER TO
AMENDED AND RESTATED LOAN AGREEMENT
This AMENDMENT NO. 9 AND WAIVER TO AMENDED AND RESTATED LOAN AGREEMENT (this “Amendment”), dated as of August 4, 2006, is entered into by and among Wise Alloys LLC, a Delaware limited liability company (“Alloys”), Wise Recycling, LLC, a Maryland limited liability company (“Recycling” and together with Alloys, each individually a “Borrower” and collectively, “Borrowers”), Wise Metals Group LLC, a Delaware limited liability company (“Group”), Wise Alloys Finance Corporation, a Delaware corporation (“Finance”), Listerhill Total Maintenance Center LLC, a Delaware limited liability company (“Listerhill”), Wise Warehousing, LLC, a Delaware limited liability company (“Warehousing”), Wise Recycling Texas, LLC, a Delaware limited liability company (“Recycling Texas”), Wise Recycling West, LLC, a Delaware limited liability company (“Recycling West” and together with Group, Finance, Listerhill, Warehousing and Recycling Texas, each individually a “Guarantor” and collectively, “Guarantors”), the lenders from time to time party thereto, and Wachovia Bank, National Association, successor by merger to Congress Financial Corporation, in its capacity as administrative agent (in such capacity, “Agent”) for Lenders (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, Agent and the financial institutions from time to time parties to the Loan Agreement (as hereinafter defined) as lenders (each individually, a “Lender” and collectively, “Lenders”) have entered into financing arrangements with Borrowers pursuant to which Agent and Lenders have made and provided and hereafter may make and provide, upon certain terms and conditions, loans and advances and other financial accommodations to Borrowers as set forth in the Amended and Restated Loan Agreement, dated May 5, 2004, by and among Agent, Lenders, Borrowers and Guarantors, as amended by Amendment No. 1 to Amended and Restated Loan Agreement, dated as of June 30, 2004, Amendment No. 2 to Amended and Restated Loan Agreement, dated as of November 10, 2004, Amendment No. 3 and Waiver to Amended and Restated Loan Agreement, dated as of March 21, 2005, Amendment No. 4 to Amended and Restated Loan Agreement, dated as of October 31, 2005, Amendment No. 5 to Amended and Restated Loan Agreement, dated as of March 3, 2006, Amendment No. 6 to Amended and Restated Loan Agreement, dated as of March 31, 2006, Amendment No. 7 to Amended and Restated Loan Agreement, dated as of April 28, 2006, and Amendment No. 8 to Amended and Restated Loan and Security Agreement, dated as of June 12, 2006 (as the same now exists and may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the “Loan Agreement”) and the other agreements, documents and instruments referred to therein or any time executed and/or delivered in connection therewith or related thereto, including this Amendment (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the “Financing Agreements”);
WHEREAS, Borrowers have requested that Agent and Lenders agree to waive certain events of default under the Loan Agreement and agree to make certain amendments to the Loan Agreement, and Agent and Lenders are willing to agree to such requests, subject to the terms and conditions contained herein;
WHEREAS, the parties hereto desire to enter into this Amendment to evidence and effectuate such amendments and waivers, subject to the terms and conditions and to the extent set forth herein;
NOW, THEREFORE, in consideration of the premises and covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Amendment to Definition of Maximum Credit. The definition of “Maximum Credit” in Section 1.84 of the Loan Agreement is hereby amended by deleting such definition in its entirety and replacing it with the following:
“1.84 ‘Maximum Credit’ shall mean the amount of $207,500,000.”
(b) Additional Definitions. As used herein, the following terms shall have the meanings given to them below and the Loan Agreement shall be deemed and is hereby amended to include, in addition and not in limitation, the following definitions:
(i) “Amendment No. 9” shall mean Amendment No. 9 and Waiver to Amended and Restated Loan and Security Agreement, dated as of August 4, 2006, among Agent, Lenders, Borrowers and Guarantors, as the same now exists and may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
(ii) “Amendment No. 9 Approving Lenders” shall mean those Lenders that execute and deliver Amendment No. 9 to Agent, on or before 5:00 p.m. New York City time on August 4, 2006.
(c) Interpretation. Capitalized terms used herein which are not otherwise defined herein shall have the respective meanings ascribed thereto in the Loan Agreement.
2. Minimum EBITDA. Section 9.17 of the Loan Agreement is hereby amended by deleting such Section in its entirety and replacing it with the following:
“9.17 Minimum EBITDA. Group and its Subsidiaries shall not permit the EBITDA of Group and its Subsidiaries for each period set forth below (each, a “Section 9.17 Test Period”) to be less than the amount set forth below opposite such Section 9.17 Test Period:
| Period |
Minimum EBITDA | ||
| August 1, 2006 through August 31, 2006 |
$ | 1,000,000 | |
| September 1, 2006 through September 30, 2006 |
$ | 2,000,000 | |
| October 1, 2006 through October 31, 2006 |
$ | 1,000,000 | |
| November 1, 2006 through November 30, 2006 |
$ | 1,000,000 | |
| December 1, 2006 through December 31, 2006 |
$ | 2,000,000 | |
| February 1, 2006 through January 31, 2007 |
$ | 15,000,000 | |
| March 1, 2006 through February 28, 2007 |
$ | 15,000,000 | |
| April 1, 2006 through March 31, 2007 |
$ | 16,000,000 | |
| May 1, 2006 though April 30, 2007 |
$ | 21,000,000 | |
| June 1, 2006 through May 31, 2007 |
$ | 28,000,000 | |
| July 1, 2006 through June 30, 2007 |
$ | 32,000,000 | |
| August 1, 2006 through July 31, 2007 and each twelve (12) month period ending on the last day of each month thereafter |
$ | 35,000,000 | |
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provided, that, solely for purposes of this Section 9.17, the calculation of EBITDA shall not include the effects of any non cash accounting adjustments for FASB 133 or any non cash LIFO reserves; provided, further, that, if the Adjusted Excess Availability is equal to or greater than $20,000,000 for each of the ten (10) consecutive days immediately preceding the last day of any Section 9.17 Test Period, then Group and its Subsidiaries shall not be required to comply with the terms of this Section 9.17 for such Section 9.17 Test Period.”
3. Term.
(a) Section 13.1 (a) of the Loan Agreement is hereby amended by deleting “a term ending on May 5, 2008” and replacing it with “a term ending on May 5, 2009.”
(b) Section 13.1(c) of the Loan Agreement is hereby amended by (i) deleting the reference to “September 10, 2007” and replacing it with “September 10, 2008” and (ii) deleting the reference to “September 9, 2007” and replacing it with “September 9, 2008”.
4. Schedules to Loan Agreement. Schedule 1.27 to the Loan Agreement is hereby amended by deleting such Schedule in its entirety and replacing it with the Schedule attached hereto as Schedule 1.
5. Waiver.
(a) Subject to the terms and conditions set forth herein, Agent and Lenders hereby waive the Events of Default under Section 10.1(a)(iii) of the Loan Agreement arising from the failure of Borrowers and Guarantors to comply with the terms of Section 9.17 of the Loan Agreement for the periods ending May 31, 2006, June 30, 2006 and July 31, 2006 (collectively, the “Acknowledged Events of Default”).
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(b) Agent and Lenders have not waived, are not by this Amendment waiving, and have no intention of waiving any Event of Default which may have occurred on or prior to the date hereof, whether or not continuing on the date hereof, or which may occur after the date hereof (whether the same or similar to the Acknowledged Events of Default or otherwise), other than the Acknowledged Events of Default. The foregoing waiver shall not be construed as a bar to or a waiver of any other or further Event of Default on any future occasion, whether similar in kind or otherwise and shall not constitute a waiver, express or implied, of any of the rights and remedies of Agent or any Lender arising under the terms of the Loan Agreement or any other Financing Agreements on any future occasion or otherwise.
6. Amendment Fee and Maximum Credit Increase Fee. In addition to all other fees, charges, interest and expenses payable by Borrowers to Agent and Lenders under the Loan Agreement and the other Financing Agreements, Borrowers shall pay to Agent, for the account of Amendment No. 9 Approving Lenders (to the extent and in accordance with the arrangements between Agent and each Amendment No. 9 Approving Lender), an amendment fee in the amount of $300,000, which fee shall be fully earned and due and payable on the effective date hereof and may be charged by Agent directly to any loan account of Borrowers.
7. Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or
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undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound, or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(d) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
(e) As of the date hereof and after giving effect to the provisions of Section 5 hereof, no Default or Event of Default exists or has occurred and is continuing.
8. Conditions Precedent. The provisions contained herein shall be effective as of the date hereof, but only upon the satisfaction of each of the following conditions precedent, in a manner satisfactory to Agent:
(a) Agent shall have received an original of this Amendment, duly authorized, executed and delivered by Borrowers, Guarantors and Required Lenders;
(b) Agent shall have received, in form and substance satisfactory to Agent, (i) an Assignment and Acceptance between Wachovia Bank, National Association (“Wachovia”) and RZB Finance LLC (“RZB”), pursuant to which RZB shall assign all of its right, title and interest in and to the Loan Agreement and its Commitment to Wachovia, duly executed and delivered by RZB, (ii) an Assignment and Acceptance between Wachovia and UPS Capital Corporation (“UPS”), pursuant to which UPS shall assign all of its right, title and interest in and to the Loan Agreement and its Commitment to Wachovia, duly executed and delivered by UPS, and (iii) an Assignment and Acceptance between Wachovia and any Eligible Transferee selected by Agent, pursuant to which Wachovia shall assign $37,500,000 of its Commitment to such Eligible Transferee, duly executed and delivered by such Eligible Transferee;
(c) Agent shall have received, in form and substance satisfactory to Agent, an opinion letter of counsel to Borrowers and Guarantors with respect to this Amendment and such other matters as Agent may request (including, without limitation, an opinion as to no conflicts with other Indebtedness);
(d) Agent shall have received, in form and substance satisfactory to Agent, an opinion letter of Alabama counsel to Alloys with respect to this Amendment and such other matters as Agent may request;
(e) Agent shall have received, in form and substance satisfactory to Agent, a certificate of the Chief Financial Officer of Administrative Borrower certifying, among other things, that: (i) after giving effect to the increase in the Maximum Credit, the Indebtedness under the Loan Agreement shall continue to be “Permitted Indebtedness” for all purposes under the Indenture, and (ii) after giving effect to any such increase in the Maximum Credit, the performance of the terms and conditions of the Loan Agreement and the other Financing Agreements and the incurrence of Obligations by Borrowers and Guarantors thereunder (A) are within each Borrower’s and Guarantor’s corporate or limited liability company powers, (B) have
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been duly authorized by each Borrower and Guarantor, (C) are not in contravention of law or the terms of any Borrower’s or Guarantor’s certificate of incorporation, certificate of formation, by laws, operating agreement or other organizational documentation, or any indenture (including the Indenture), agreement or undertaking to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound, and (D) will not result in the creation or imposition of, or require or give rise to any obligation to grant, any lien, security interest, charge or other encumbrance upon any property of any Borrower or Guarantor, other than the liens in favor of Agent;
(f) all representations and warranties contained herein, in the Loan Agreement and in the other Financing Agreements shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date hereof and after giving effect hereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date);
(g) no law, regulation, order, judgment or decree of any Governmental Authority shall exist, and no action, suit, investigation, litigation or proceeding shall be pending or threatened in any court or before any arbitrator or Governmental Authority, which (i) purports to enjoin, prohibit, restrain or otherwise affect (A) the making of the Loans or providing the Letter of Credit Accommodations, or (B) the consummation of the transactions contemplated pursuant to the terms of this Amendment, the Loan Agreement or the other Financing Agreements or (ii) has or has a reasonable likelihood of having a Material Adverse Effect;
(h) Agent shall have received, in form and substance satisfactory to Agent, (i) a Secretary’s Certificate of Members’ and Managers’ Resolutions, Operating Agreement, Incumbency and Member’s Consent for each of Alloys, Recycling, Group, Listerhill, Warehousing, Recycling Texas and Recycling West evidencing the adoption and subsistence of resolutions approving the execution, delivery and performance by each such Borrower or Guarantor, as applicable, of this Amendment and the other Amendment Documents, and (ii) a Secretary’s Certificate of Directors’ Resolutions, Corporate Bylaws, Incumbency and Shareholder’s Consent for Finance evidencing the adoption and subsistence of resolutions approving the execution, delivery and performance by Finance of this Amendment and the other Amendment Documents; and
(i) after giving effect to the provisions of Section 5 hereof, no Default or Event of Default shall exist or shall have occurred and be continuing.
9. Effect of this Amendment; Entire Agreement. Except as expressly set forth herein, no other changes or modifications to the Financing Agreements are intended or implied, and in all other respects the Financing Agreements are hereby specifically ratified, restated and confirmed by all parties hereto as of the date hereof. This Amendment and any instruments or documents delivered or to be delivered in connection herewith, represent the entire agreement and understanding concerning the subject matter hereof and thereof between the parties hereto, and supersede all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof, whether oral or written. To the extent of conflict between the terms of this Amendment and the other Financing Agreements, the terms of this Amendment shall control. The Loan Agreement and this Amendment shall be read and construed as one agreement.
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10. Further Assurances. The parties hereto shall execute and deliver such additional documents and take such additional action as may be reasonably necessary or desirable to effectuate the provisions and purposes of this Amendment.
11. Governing Law. The validity, interpretation and enforcement of this Amendment and any dispute arising out of the relationship between the parties hereto whether in contract, tort, equity or otherwise, shall be governed by the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York.
12. Binding Effect. This Amendment shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.
13. Headings. The headings listed herein are for convenience only and do not constitute matters to be construed in interpreting this Amendment.
14. Counterparts. This Amendment may be executed in any number of counterparts, but all of such counterparts shall together constitute but one and the same agreement. In making proof of this Amendment, it shall not be necessary to produce or account for more than one counterpart thereof signed by each of the parties hereto. This Amendment may be executed and delivered by telecopier or other electronic method of transmission with the same force and effect as if it were a manually executed and delivered counterpart.
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IN WTNESS WHEREOF, Agent, Lenders, Borrowers and Guarantors have caused this Amendment to be duly executed as of the day and year first above written.
| AGENT AND LENDERS | ||
| WACHOVIA BANK, NATIONAL ASSOCIATION, successor by merger to Congress Financial Corporation, as Agent and as a Lender | ||
| By: |
| |
| Title: Vice President | ||
| BANK OF AMERICA, N.A. | ||
| By: |
| |
| Title: |
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| PNC BANK, NATIONAL ASSOCIATION | ||
| By: |
| |
| Title: |
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| THE CIT GROUP/BUSINESS CREDIT, INC. | ||
| By: |
| |
| Title: |
| |
| BURDALE FINANCIAL LIMITED | ||
| By: |
| |
| Title: |
| |
[SIGNATURES CONTINUED ON NEXT PAGE]
IN WITNESS WHEREOF, Agent, Lenders, Borrowers and Guarantors have caused this Amendment to be duly executed as of the day and year first above written.
| AGENT AND LENDERS | ||
| WACHOVIA BANK, NATIONAL ASSOCIATION, successor by merger to Congress Financial Corporation, as Agent and as a Lender | ||
| By: |
| |
| Title: |
| |
| BANK OF AMERICA, N.A. | ||
| By: |
| |
| Title: | Vice President | |
| PNC BANK, NATIONAL ASSOCIATION | ||
| By: |
| |
| Title: |
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| THE CIT GROUP/BUSINESS CREDIT, INC. | ||
| By: |
| |
| Title: |
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| BURDALE FINANCIAL LIMITED | ||
| By: |
| |
| Title: |
| |
[SIGNATURES CONTINUED ON NEXT PAGE]
IN WITNESS WHEREOF, Agent, Lenders, Borrowers and Guarantors have caused this Amendment to be duly executed as of the day and year first above written.
| AGENT AND LENDERS | ||
| WACHOVIA BANK, NATIONAL ASSOCIATION, successor by merger to Congress Financial Corporation, as Agent and as a Lender | ||
| By: |
| |
| Title: |
| |
| BANK OF AMERICA, N.A. | ||
| By: |
| |
| Title: |
| |
| PNC BANK, NATIONAL ASSOCIATION | ||
| By: |
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| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President | ||
| THE CIT GROUP/BUSINESS CREDIT, INC. | ||
| By: |
| |
| Title: |
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| BURDALE FINANCIAL LIMITED | ||
| By: |
| |
| Title: |
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[SIGNATURES CONTINUED ON NEXT PAGE]
IN WITNESS WHEREOF, Agent, Lenders, Borrowers and Guarantors have caused this Amendment to be duly executed as of the day and year first above written.
| AGENT AND LENDERS | ||
| WACHOVIA BANK, NATIONAL ASSOCIATION, successor by merger to Congress Financial Corporation, as Agent and as a Lender | ||
| By: |
| |
| Title: |
| |
| BANK OF AMERICA, N.A. | ||
| By: |
| |
| Title: |
| |
| PNC BANK, NATIONAL ASSOCIATION | ||
| By: |
| |
| Title: |
| |
| THE CIT GROUP/BUSINESS CREDIT, INC. | ||
| By: |
| |
| Title: | Vice President | |
| BURDALE FINANCIAL LIMITED | ||
| By: |
| |
| Title: |
| |
[SIGNATURES CONTINUED ON NEXT PAGE]
IN WITNESS WHEREOF, Agent, Lenders, Borrowers and Guarantors have caused this Amendment to be duly executed as of the day and year first above written.
| AGENT AND LENDERS | ||
| WACHOVIA BANK, NATIONAL ASSOCIATION, successor by merger to Congress Financial Corporation, as Agent and as a Lender | ||
| By: |
| |
| Title: |
| |
| BANK OF AMERICA, N.A. | ||
| By: |
| |
| Title: |
| |
| PNC BANK, NATIONAL ASSOCIATION | ||
| By: |
| |
| Title: |
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| THE CIT GROUP/BUSINESS CREDIT, INC. | ||
| By: |
| |
| Title: |
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| BURDALE FINANCIAL LIMITED | ||
| By: |
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| Title: | Director, Credit Manager | |
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
| BORROWERS | ||
| WISE ALLOYS LLC | ||
| By: |
| |
| Title: | Assistant Secretary | |
| WISE RECYCLING, LLC | ||
| By: |
| |
| Title: | Secretary | |
| GUARANTORS | ||
| WISE METALS GROUP LLC | ||
| By: |
| |
| Title: | Executive Vice President/Secretary | |
| WISE ALLOYS FINANCE CORPORATION | ||
| By: |
| |
| Title: | President | |
| LISTERHILL TOTAL MAINTENANCE CENTER LLC | ||
| By: |
| |
| Title: | Assistant Secretary | |
| WISE RECYCLING TEXAS, LLC | ||
| By: |
| |
| Title: | Assistant Secretary | |
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
| WISE WAREHOUSING, LLC | ||
| By: |
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| Title: | Assistant Secretary | |
| WISE RECYCLING WEST, LLC | ||
| By: |
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| Title: | Assistant Secretary | |
SCHEDULE 1
TO
AMENDMENT NO. 9 AND WAIVER
TO
AMENDED AND RESTATED LOAN AGREEMENT
SCHEDULE 1.27
TO
AMENDED AND RESTATED LOAN AGREEMENT
Commitments
| Lender |
Commitment | Pro Rata Share | ||||
| Wachovia Bank, National Association |
$ | 87,500,000 | 42.168 | % | ||
| Bank of America, N.A |
$ | 50,000,000 | 24.096 | % | ||
| The CIT Group/Business Credit, Inc. |
$ | 30,000,000 | 14.458 | % | ||
| Burdale Financial Limited |
$ | 20,000,000 | 9.639 | % | ||
| PNC Bank, National Association |
$ | 20,000,000 | 9.639 | % | ||
| TOTAL: |
$ | 207,500,000 | 100 | % | ||