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Exhibit 10.10
AMENDMENT AND RESTATEMENT
Dated as of December 18, 1998
of
U.S. $3,500,000,000
LOAN AGREEMENT
Dated as of March 11, 1998
Among
▇▇▇▇ ▇▇▇▇▇, INC.
as Borrower
and
THE LENDERS PARTY THERETO
as Lenders
and
CHASE SECURITIES INC.
as Lead Arranger and Book Manager
and
BANKERS TRUST COMPANY
as Administrative Agent
and
THE CHASE MANHATTAN BANK
as Syndication Agent
and
NATIONSBANK OF TEXAS, N.A.
and
SALOMON BROTHERS HOLDING CO INC.
as Co-Documentation Agents
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AMENDMENT AND RESTATEMENT, dated as of December 18, 1998 (this
"Amendment"), of the Loan Agreement, dated as of March 11, 1998 (as amended, the
"Loan Agreement"), among ▇▇▇▇ ▇▇▇▇▇, INC., a Delaware corporation (the
"Borrower"), the several banks and other financial institutions from time to
time parties to the Loan Agreement (the "Lenders"), CHASE SECURITIES INC.
("CSI"), as Lead Arranger and Book Manager (in such capacity, the "Lead Arranger
and Book Manager"), BANKERS TRUST COMPANY ("Bankers Trust"), as Administrative
Agent, THE CHASE MANHATTAN BANK ("Chase"), as Syndication Agent, and NATIONSBANK
OF TEXAS, N.A. and SALOMON BROTHERS HOLDING CO INC., as Co-Documentation Agents.
W I T N E S S E T H :
WHEREAS, The Kroger Co. ("Kroger") has agreed, subject to certain
conditions, to acquire all of the outstanding common stock of the Borrower in
exchange for newly issued shares of common stock of Kroger pursuant to a merger
of a wholly owned subsidiary of Kroger into the Borrower (the "Acquisition");
WHEREAS, in connection with the Acquisition, the Borrower has
requested and upon the effectiveness of this Amendment, the Required Lenders
have agreed, that certain provisions of the Loan Agreement be amended and that
the Loan Agreement be restated upon the terms and conditions set forth below to
permit the consummation of the Acquisition;
WHEREAS, concurrent with the consummation of the Acquisition, Kroger
and each of its other material subsidiaries will guarantee the obligations of
the Borrower under the Loan Agreement; and
WHEREAS, the Borrower has further requested CSI to act as Lead
Arranger and Book Manager with respect to this Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Defined Terms. Terms defined in the Loan Agreement and used
herein shall have the meanings given to them in the Loan Agreement. Unless
otherwise indicated, all Article, Section and subsection references are to the
Loan Agreement.
SECTION 2. Amendments to Section 1.1. Section 1.1 of the Loan
Agreement is hereby amended as follows:
(a) by amending and restating the following definitions appearing
therein to read in their entireties as follows:
"Change in Control" means any one or more of the following events:
(a) the acquisition, by contract or otherwise (including the
entry into a contract or arrangement that upon consummation will
result in such acquisition),
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by any Person or group (as such term is defined for purposes of
Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations pertaining thereto),
other than the trusts for the employee benefit plans (as defined in
Section 3(2) of ERISA) maintained by Kroger or any subsidiary of
Kroger that is an ERISA Affiliate, of beneficial ownership (within the
meaning of Rule 13d-3, or any regulation or ruling promulgated to
replace or supplement Rule 13d-3, of the General Rules and Regulations
under the Exchange Act), directly or indirectly, of securities of
Kroger representing 20% or more of the voting power of all securities
of Kroger,
(b) during any period of up to 24 consecutive months, commencing
before or after the date of this Agreement, individuals who at the
beginning of such period were directors of Kroger (together with any
new directors whose election by the board of directors of Kroger or
whose nomination for election by the stockholders of Kroger was
approved by a vote of at least 75% of the directors then in office who
either were directors at the beginning of such period or whose
election or nomination for election was previously so approved) shall
cease for any reason to constitute at least 75% of the board of
directors of Kroger, or
(c) Kroger shall cease to own, directly or indirectly, all of the
issued and outstanding capital stock of the Borrower.
"ERISA Affiliate" of a Person means any trade or business
(whether or not incorporated) that, together with such Person, is
treated as a single employer under Section 414 of the Code.
"Material Adverse Effect" means a (a) materially adverse effect
on the business, assets, operations, properties, prospects or
condition (financial or otherwise) of Kroger and its subsidiaries,
taken as a whole, (b) material impairment of the ability of the
Borrower to perform any of its obligations under any Loan Document to
which it is or will be a party or (c) material impairment of the
rights of or benefits available to the Agents, the Issuing Banks or
the Lenders under any Loan Document.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of
which Kroger or any ERISA Affiliate of Kroger is (or, if such plan
were terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital
stock having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation
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shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such
limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one
or more of its other subsidiaries or by one or more of such Person's
other subsidiaries.
(b) by deleting therefrom the following definitions in their
respective entireties: "Consolidated EBITDAR"; "Consolidated Interest Expense";
"Disclosed Matters"; "Employee Benefit Plan"; "ERISA Event"; "Excess Cash Flow";
"Fixed Charge Coverage Ratio"; "Guaranteed Pension Plan"; "Material Subsidiary";
"Net Cash Proceeds"; "Permitted Investments"; "Public Notes"; "Restricted
Payment"; "▇▇▇▇▇'▇"; "Surety Instruments"; "Tangible Net Assets"; and "Tendered
Bonds".
(c) by adding thereto the following definitions in the appropriate
alphabetical order:
"Kroger" means The Kroger Co., an Ohio corporation.
"Kroger Guarantee" means the Guarantee dated as of December 18,
1998 executed by Kroger and each of the Kroger Material Subsidiaries.
"Kroger Guarantor" means Kroger and each Kroger Material
Subsidiary which has executed the Kroger Guarantee.
"Kroger Material Subsidiary" has the meaning assigned to the term
"Material Subsidiary" in Section 1 of the Kroger Guarantee.
"Reportable Event" means any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with
respect to a Plan (other than a Plan maintained by an ERISA Affiliate
that is considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 414 of the Code).
SECTION 3. Amendment to Section 2.11. Section 2.11 of the Loan
Agreement is hereby amended by adding the following sentence at the end of
paragraph (b) thereof:
"Optional prepayments of the Term Loans under this Section 2.11 shall
reduce the quarterly payments required under Section 2.1 in the
scheduled order of maturity."
SECTION 4. Amendment to Section 2.20. Section 2.20 of the Loan
Agreement is hereby amended by deleting such Section in its entirety.
SECTION 5. Amendments to Article III. Article III of the Loan
Agreement is hereby amended by (a) deleting Sections 3.4, 3.5, 3.6, 3.7, 3.9,
3.10, 3.14, 3.15 and 3.16 of such Article in their entireties, (b) redesignating
Sections 3.8, 3.11, 3.12, 3.13 and 3.17 of such Article as Sections 3.4, 3.5,
3.6, 3.7 and 3.8, respectively and (c) deleting, in the new Section 3.7, the
reference to "Section 5.8" and substituting in lieu thereof a reference to
"Section 5.2".
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SECTION 6. Amendment to Section 4.2. Section 4.2 of the Loan Agreement
is hereby amended by amending and restating paragraph (b) thereof to read in its
entirety as follows:
"(b) The representations and warranties of the Borrower set forth
in this Agreement and of Kroger set forth in the Kroger Guarantee
shall be true and correct on and as of the date of such Borrowing or
the date of issuance, amendment, renewal or extension of such Letter
of Credit, as the case may be."
SECTION 7. Amendments to Article V. Article V of the Loan Agreement is
hereby amended by (a) deleting Sections 5.2, 5.3, 5.4, 5.5, 5.6 and 5.7 of such
Article in their entireties, (b) redesignating Sections 5.8, 5.9 and 5.10 as
Sections 5.2, 5.3 and 5.4, respectively and (c) inserting a new Section at the
end thereof to read in its entirety as follows:
"Section 5.5 Certain Covenants. (a) The Borrower shall, and shall
cause its Subsidiaries, to comply with the covenants set forth in
Section 8 of the Kroger Guarantee to the extent applicable.
(b) The Borrower will furnish to the Administrative Agent and
each Lender prompt written notice of the occurrence of any Default
upon actual notice of a Responsible Officer of the Borrower."
SECTION 8. Amendments to Article VI. Article VI of the Loan Agreement
is hereby amended by deleting all Sections of such Article in their entireties
and substituting in lieu thereof the following new Section:
"Section 6.1 Guarantee Covenants. The Borrower shall, and shall
cause its Subsidiaries, to comply with the covenants set forth in
Section 9 of the Kroger Guarantee to the extent applicable."
SECTION 9. Amendments to Article VII. Article VII of the Loan
Agreement is hereby amended as follows:
(a) by inserting the words "or any Kroger Guarantor" after the words
"any Subsidiary" in paragraph (c) of such Article;
(b) by amending and restating paragraph (d) to read in its entirety as
follows:
"(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Sections 5.2, 5.5(a) (with respect
to the maintenance of the Borrower's existence) or 5.5(b) or in
Section 6.1; or";
(c) by deleting paragraphs (f) through (k) thereof and substituting in
lieu thereof the following new paragraphs:
"(f) Kroger or any of its subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in
a principal or notional amount of at least $40,000,000 in the
aggregate (but excluding Debt outstanding
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hereunder) of Kroger or such subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event
shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit
the acceleration of, the maturity of such Debt; or any such Debt shall
be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; or
(g) Kroger or any of its subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against Kroger or any of its subsidiaries seeking to
adjudicate it as bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for
any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of
30 days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall
occur; or Kroger or any of its subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this
paragraph (g); or
(h) any judgment or order for the payment of money in excess of
$40,000,000 shall be rendered against Kroger or any of its
subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; provided, however, that any such
judgment or order shall not be an Event of Default under this
paragraph (h) if and for so long as (i) the amount of such judgment or
order is covered by a valid and binding policy of insurance between
the defendant and the insurer covering payment thereof and (ii) such
insurer, which shall be rated at least "A" by A.M. Best Company, has
been notified of, and has not disputed the claim made for payment of,
the amount of such judgment or order; or
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(i) any non-monetary judgment or order shall be rendered against
Kroger or any of its subsidiaries that could be reasonably expected to
have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(j) a Reportable Event or Reportable Events, or a failure to make
a required installment or other payment (within the meaning of Section
412(n)(1) of the Code), shall have occurred with respect to any Plan
or Plans that reasonably could be expected to result in liability of
Kroger or any of its subsidiaries to the PBGC or to a Plan in an
aggregate amount exceeding $40,000,000 and, within 30 days after
Kroger has provided written notice of any such Reportable Event to the
Administrative Agent, the Administrative Agent shall have notified
Kroger in writing that (i) the Required Lenders have determined that,
on the basis of such Reportable Event or Reportable Events or the
failure to make a required payment, there are reasonable grounds (A)
for the termination of such Plan or Plans by the PBGC, (B) for the
appointment by the appropriate United States District Court of a
trustee to administer such Plan or Plans or (C) for the imposition of
a lien in favor of a Plan and (ii) as a result thereof an Event of
Default exists hereunder; or a trustee shall be appointed by a United
States District Court to administer any such Plan or Plans; or the
PBGC shall institute proceedings (including giving notice of intent
thereof) to terminate any Plan or Plans; or
(k) (A) (i) Kroger or any ERISA Affiliate of Kroger shall have
been notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan, (ii) Kroger
or such ERISA Affiliate does not have reasonable grounds for
contesting such Withdrawal Liability or is not in fact contesting such
Withdrawal Liability in a timely and appropriate manner and (iii) the
amount of the Withdrawal Liability specified in such notice, when
aggregated with all other amounts required to be paid to Multiemployer
Plans in connection with Withdrawal Liabilities (determined as of the
date or dates of such notification), either (x) exceeds $100,000,000
or requires payments exceeding $40,000,000 in any year or (y) is less
than $100,000,000 but any Withdrawal Liability payment remains unpaid
30 days after such payment is due (unless such Withdrawal Liability is
being contested in good faith by Kroger or any ERISA Affiliate of
Kroger), or (B) Kroger or any ERISA Affiliate of Kroger shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if solely as a result of such
reorganization or termination the aggregate contributions of Kroger
and its ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have been or will
be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an
amount exceeding $40,000,000; or"; and
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(d) by inserting the following words at the end of paragraph (m)
thereof:
", or Kroger or any other Kroger Guarantor shall fail to comply with
the terms and conditions of the Kroger Guarantee and, if such failure
occurs with respect to Sections 8 or 11 (to the extent Section 11
applies to Section 8) of the Kroger Guarantee, such failure shall
continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrower (which notice will be given
at the request of any Lender), or the Kroger Guarantee shall cease for
any reason to be in full force and effect (other than pursuant to the
terms hereof or thereof) or any Kroger Guarantor or any Person acting
by or on behalf of any such Kroger Guarantor shall deny or disaffirm
all or any portion of its obligations under the Kroger Guarantee ".
SECTION 10. Waiver of Events of Default. Any Default or Event of
Default arising out of any Change in Control resulting from the Acquisition is
hereby waived.
SECTION 11. Restatement of Loan Agreement. The Loan Agreement is
hereby restated in its entirety to read as set forth in Exhibit A to this
Amendment. The only amendments to the Loan Agreement, as restated, are those
reflected in this Amendment. The schedules and exhibits to the Loan Agreement
have not been amended hereby, except that the Commitments shall be as set forth
in the Register.
SECTION 12. Representations and Warranties. After giving effect to
this Amendment, the Borrower hereby confirms, reaffirms and restates in all
material respects the representations and warranties set forth in Article III of
the Loan Agreement as if made on and as of the date hereof except for any
representation or warranty made as of an earlier date, which representation or
warranty shall have been true and correct in all material respects as of such
earlier date. For purposes of the representations and warranties set forth in
Article III of the Loan Agreement, this Amendment shall be treated as a "Loan
Document" and the execution and delivery of this Amendment shall be treated as a
"Transaction".
SECTION 13. Lead Arranger; Book Manager. CSI shall act as Lead
Arranger and Book Manager with respect to this Amendment.
SECTION 14. Conditions to Effectiveness. This Amendment shall become
effective as of the date (the "Effective Date") of consummation of the
Acquisition upon receipt by the Lead Arranger and Book Manager of each of the
following:
(a) counterparts of this Amendment, duly executed and delivered by the
Borrower and the Required Lenders;
(b) counterparts of a Guarantee, substantially in the form of Exhibit
B to this Amendment (the "Kroger Guarantee"), duly executed and delivered by
Kroger and each Kroger Material Subsidiary;
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(c) an opinion of counsel to the Borrower, as to the due authorization
and execution by the Borrower of this Amendment and to such other matters, as is
customary for similar transactions, as may be reasonably requested by the Lead
Arranger and Book Manager;
(d) an opinion of counsel to Kroger, as to the due authorization and
execution by the Kroger Guarantors of the Kroger Guarantee and to such other
matters, as is customary for similar transactions, as may be reasonably
requested by the Lead Arranger and Book Manager;
(e) such documents and certificates as the Lead Arranger and Book
Manager and its counsel may reasonably request relating to this Amendment or the
Kroger Guarantee, all in form and substance satisfactory to the Lead Arranger
and Book Manager and its counsel;
(f) satisfactory evidence that (i) the Current Synthetic Lease
Facility of the Borrower has been terminated and all loans outstanding
thereunder have been paid in full, (ii) the Commitments have been reduced by
$500,000,000 or (iii) a combination thereof resulting in the reduction of
Commitments and the commitments under the Current Synthetic Lease Facility in an
aggregate amount of $500,000,000;
(g) satisfactory evidence that, if the Current Synthetic Lease
Facility is not terminated, amendments, in form and substance satisfactory to
the Lead Arranger and Book Manager, to the operative documents of such Current
Synthetic Lease Facility have been executed and are effective;
(h) the surviving corporation following the Acquisition has confirmed
in writing its assumption of all of the obligations of the Borrower under the
Loan Agreement; and
(i) the payment of all fees and other amounts payable in connection
with this Amendment.
SECTION 15. Payment of Expenses. The Borrower agrees to pay or
reimburse the Lead Arranger and Book Manager for all of its reasonable
out-of-pocket costs and expenses incurred in connection with this Amendment, any
other documents prepared in connection herewith and the transactions
contemplated hereby, including, without limitation, the reasonable fees and
disbursements of counsel.
SECTION 16. Continuing Effect of Loan Agreement. Except as expressly
amended herein, the Loan Agreement shall continue to be, and shall remain, in
full force and effect in accordance with its terms. This Amendment shall
terminate and be of no further force and effect upon the termination of the
Agreement and Plan of Merger, dated as of October 18, 1998, by and between the
Borrower, Jobsite Holdings, Inc. and Kroger.
SECTION 17. Governing Law; Counterparts. THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. This
Amendment may be executed by the parties hereto in any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. The execution and delivery of this
Amendment by any Lender on or prior to the Effective Date shall be binding upon
each of its transferees, successors and assigns and
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
▇▇▇▇ ▇▇▇▇▇, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Treasurer
BANKERS TRUST COMPANY, as Administrative
Agent and as a Lender
By: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Managing Director
THE CHASE MANHATTAN BANK, as Syndication
Agent and as a Lender
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
CHASE SECURITIES INC., as Lead Arranger
and Book Manager
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
NATIONSBANK OF TEXAS, N.A., as
Co-Documentation Agent and as a Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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SALOMON BROTHERS HOLDING CO INC., as
Co-Documentation Agent and as a Lender
By:
------------------------------------
Title:
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ABN AMRO BANK N.V., as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
By: ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Vice President
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THE ASAHI BANK, LTD., NEW YORK BRANCH,
as a Lender
By: /s/
------------------------------------
Title: Senior Manager
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BANCO ESPIRITO SANTO E COMERCIAL DE
LISBOA, NASSAU BRANCH, as a Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
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BANKBOSTON, N.A., as a Lender
By: /s/
------------------------------------
Title: Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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BANK OF HAWAII, as a Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Title: Assistant Vice President
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BANK LEUMI U.S.A., as a Lender
By: /s/
------------------------------------
Title: VP/Manager
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BANK OF MONTREAL, as a Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
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THE BANK OF NEW YORK, as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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BANK OF SCOTLAND, as a Lender
By: ▇▇▇▇▇ ▇▇▇▇ TAT
------------------------------------
▇▇▇▇▇ ▇▇▇▇ Tat
Title: Senior Vice President
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THE BANK OF TOKYO-MITSUBISHI LTD.,
PORTLAND BRANCH, as a Lender
By: ▇.▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
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BANQUE NATIONALE DE PARIS, as a Lender
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ AG,
as a Lender
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/
------------------------------------
Title: Managing Director
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BHF-BANK AKTIENGESELLSCHAFT, as a Lender
By:
------------------------------------
Title:
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CITY NATIONAL BANK, as a Lender
By: /s/
------------------------------------
Title: Vice President
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COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE, as a Lender
By: ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By: ▇▇▇▇▇ ▇'▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Vice President
29
28
CREDIT AGRICOLE INDOSUEZ, as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: First Vice President
By: /s/
------------------------------------
Title: EVP
30
29
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By:
------------------------------------
Title:
31
30
THE DAI-ICHI KANGYO BANK, LIMITED, LOS
ANGELES AGENCY, as a Lender
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Sr. Vice President &
Joint General Manager
32
31
DLJ CAPITAL FUNDING, INC., as a Lender
By: /s/
------------------------------------
Title:
33
32
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as Lenders
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
By: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
34
33
ERSTE BANK NEW YORK BRANCH, as a Lender
By:
------------------------------------
Title:
35
34
THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender
By: ▇▇▇▇▇▇▇▇▇ ▇. MUZZEST
------------------------------------
Title: Vice President
36
35
FIRST DOMINION FUNDING I, as a Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
37
36
FIRST HAWAIIAN BANK, as a Lender
By:
------------------------------------
Title:
38
37
FIRST SECURITY BANK, N.A., as a Lender
By:
-------------------------------------
Title:
39
38
FIRST UNION NATIONAL BANK, as a Lender
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
40
39
FIRSTRUST BANK, as a Lender
By:
------------------------------------
Title:
41
40
FLEET BANK, N.A., as a Lender
By: /s/
-------------------------------------
Title: Vice President
42
41
THE FUJI BANK, LIMITED LOS ANGELES
AGENCY, as a Lender
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Joint General Manager
43
42
GCB INVESTMENT PORTFOLIO, as a Lender
By: Citibank, N.A., as Investment
Advisor
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
44
43
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
45
44
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.,
as a Lender
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signatory
46
▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇▇ Branch
as a Lender
By: ▇. ▇▇▇▇▇▇
------------------------------------
▇. ▇▇▇▇▇▇
Title: Director
By: ▇▇▇▇▇▇▇ ZIWEY
------------------------------------
▇▇▇▇▇▇▇ Ziwey
Title: Senior Vice President
47
46
IMPERIAL BANK, as a Lender
By:
------------------------------------
Title:
48
47
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By: TAKUYA HONJO
------------------------------------
Takuya Honjo
Title: Senior Vice President
49
48
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Assistant Vice President
50
49
KZH CNC LLC, as a Lender
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
KZH ING-2 LLC, as a Lender
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
51
50
LAND BANK OF TAIWAN, LOS ANGELES BRANCH,
as a Lender
By:
------------------------------------
Title:
52
51
THE LONG TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY, as a Lender
By: /s/
------------------------------------
Title: Deputy General Manager
53
52
MARINE MIDLAND BANK, as a Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
54
53
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, as a Lender
By:
------------------------------------
Title:
55
54
MEESPIERSON CAPITAL CORP., as a Lender
By:
------------------------------------
Title:
56
55
MELLON BANK, N.A., as a Lender
By: ▇.▇. ▇▇▇▇
------------------------------------
Title: Vice President
57
56
MERCANTILE BANK N.A., as a Lender
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
58
57
▇▇▇▇▇▇▇ ▇▇▇▇▇ GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO, as a Lender
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management,
L.P., as Investment Adviser
By: ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND,
INC., as a Lender
By: ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
DEBT STRATEGIES FUND INC., as a Lender
By: ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
DEBT STRATEGIES FUND II, INC.,
as a Lender
By: ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
59
58
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
60
59
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as a Lender
By:
------------------------------------
Title:
61
60
NATEXIS BANQUE BFCE, as a Lender
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
By: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
62
61
NATIONAL BANK OF KUWAIT, as a Lender
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Manager
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Manager
63
62
NATIONAL CITY BANK, as a Lender
By:
------------------------------------
Title:
64
63
NATS LOAN TRUST 6, as a Lender
By: The Bank of New York, as Trustee
By:
------------------------------------
Title:
65
64
PARIBAS, as a Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title:
By: ▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
66
65
PIMCO TOTAL RETURN FUND, as a Lender
By:
------------------------------------
Title:
67
66
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By:
------------------------------------
Title:
68
67
REPUBLIC NATIONAL BANK OF NEW YORK,
as a Lender
By: ▇▇▇▇-▇▇▇▇▇▇ ▇. DIELS
------------------------------------
▇▇▇▇-▇▇▇▇▇▇ ▇. Diels
Title: Executive Vice President
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: First Vice President
69
68
ROYAL BANK OF CANADA, as a Lender
By: ▇▇▇▇▇ ROTHAMBEY
------------------------------------
▇▇▇▇▇ Rothambey
Title: Senior Manager
70
69
THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
71
70
THE SAKURA BANK, LIMITED, as a Lender
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
72
71
SOCIETE GENERALE, as a Lender
By: J. ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
J. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
73
72
STB DELAWARE FUNDING TRUST I,
as a Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
74
73
THE TOKAI BANK, LIMITED, LOS ANGELES
AGENCY, as a Lender
By: /s/
------------------------------------
Title: SVP & Assistant
General Manager
75
74
TORONTO DOMINION (TEXAS) INC.,
as a Lender
By:
------------------------------------
Title:
76
75
TRANSAMERICA BUSINESS CREDIT
CORPORATION, as a Lender
By:
------------------------------------
Title:
77
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.,
as a Lender
By:
------------------------------------
Title:
78
77
US BANK NATIONAL ASSOCIATION,
as a Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
79
78
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST,
as a Lender
By:
------------------------------------
Title:
80
79
WACHOVIA BANK, N.A., as a Lender
By: /s/
------------------------------------
Title: Vice President
81
80
▇▇▇▇▇ FARGO BANK, N.A., as a Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
82
81
ZIONS FIRST NATIONAL BANK, as a Lender
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
