Exhibit 4.1
CONFORMED COPY
AMENDMENT NO. 6, CONSENT AND WAIVER dated as of August
10, 2001 (this "Amendment"), to the Credit Agreement dated
as of January 23, 1998, as amended by Amendment No. 1 dated
as of August 12, 1998, Amendment No. 2 and Waiver dated as
of November 30, 1998, Amendment No. 3 dated as of June 30,
1999, Amendment No. 4 dated as of June 29, 2000, and
Amendment No. 5 and Agreement dated as of January 26, 2001
(the "Credit Agreement"), among EAGLE FAMILY FOODS, INC.
(the "Borrower"), EAGLE FAMILY FOODS HOLDINGS, INC.
("Holdings"), the Lenders (as defined in the Credit
Agreement), THE CHASE MANHATTAN BANK, as administrative
agent (in such capacity, the "Administrative Agent") for the
Lenders, as collateral agent (in such capacity, the
"Collateral Agent") for the Lenders, as swingline lender (in
such capacity, the "Swingline Lender"), and as issuing bank
(in such capacity, the "Issuing Bank"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇
CAPITAL CORPORATION, as documentation agent.
A. Pursuant to the Credit Agreement, the Lenders, the Swingline
Lender and the Issuing Bank have extended credit to the Borrower, and have
agreed to extend credit to the Borrower, in each case pursuant to the terms and
subject to the conditions set forth therein.
B. The Borrower has informed the Administrative Agent that it
intends to sell substantially all the assets of its ReaLemon business (the
"ReaLemon Assets") in exchange for Net Proceeds of not less than $118,000,000 in
cash (the "Proposed Sale"), and to use the Net Proceeds of the Proposed Sale to
prepay Term Loans as required by, and in accordance with the provisions of,
Section 2.11(b) of the Credit Agreement (the "Mandatory Prepayment").
C. The Borrower and Holdings have requested that the Required
Lenders (i) consent to the Proposed Sale and waive compliance by the Borrower
and Holdings with certain provisions of the Credit Agreement in connection with
or as a consequence thereof and (ii) agree to amend certain other provisions of
the Credit Agreement, in each case as set forth herein.
D. The Required Lenders are willing to grant such consent and waiver
and to amend the Credit Agreement, in each case pursuant to the terms and
subject to the conditions set forth herein.
E. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Consent and Waiver. The Required Lenders hereby (a)
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consent to the Proposed Sale and (b) waive compliance by the Borrower and
Holdings with the provisions of Section 6.05 of the Credit Agreement to the
extent necessary to consummate the Proposed Sale; provided, however, that (i)
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the date the Proposed Sale is consummated (the "Sale Closing Date")
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shall be on or prior to October 15, 2001, (ii) the Proposed Sale shall be made
for cash, and the Net Proceeds thereof shall be not less than $118,000,000, and
(iii) on the Sale Closing Date, the Borrower shall cause the Mandatory
Prepayment to occur.
SECTION 2. Limited Waiver. The Required Lenders hereby waive
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compliance by the Borrower and Holdings with the provisions of Sections 6.12 and
6.13 of the Credit Agreement, in each case for the period commencing on and
including September 29, 2001 and ending on and including December 28, 2002.
SECTION 3. Amendments. (a) The definition of the term "Applicable
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Rate" contained in Section 1.01 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Applicable Rate" shall mean (a) with respect to any Eurodollar Loan,
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4.00% per annum, (b) with respect to any ABR Loan, 3.00% per annum, and (c)
with respect to the commitment fees payable hereunder in respect of the
Revolving Commitments, 0.50% per annum.
(b) The definition of the term "Permitted Acquisition" contained in
Section 1.01 of the Credit Agreement is hereby deleted.
(c) The following is hereby inserted in the appropriate alphabetical
order in Section 1.01 of the Credit Agreement:
"Cleandown Availability Period" shall mean the period commencing on
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and including December 1 of any year and ending on and including March 31
of the following year.
(d) Section 2.11 of the Credit Agreement is hereby amended by adding
as a new paragraph (f) thereof the following:
(f) For a period of 30 consecutive days (the "First Cleandown
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Period") chosen at the option of the Borrower and occurring during the
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Cleandown Availability Period commencing on December 1, 2001, Holdings and
the Borrower shall ensure that the aggregate Revolving Exposure shall not
exceed $27,500,000. For a period of 30 consecutive days (together with the
First Cleandown Period, the "Cleandown Periods") chosen at the option of
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the Borrower and occurring during the Cleandown Availability Period
commencing on December 1, 2002, Holdings and the Borrower shall ensure that
the aggregate Revolving Exposure shall not exceed $20,000,000. In order to
comply with the foregoing provisions of this paragraph, the Borrower shall,
to the extent necessary, prepay Revolving Loans and/or Swingline Loans and
shall not, during the relevant Cleandown Period, request any Revolving Loan
or Swingline Loan, or the issuance of any Letter of Credit, in each case to
the extent the making or issuance of the same would result in the aggregate
Revolving Exposure exceeding the applicable amount provided for above.
(e) Section 5.01(c) of the Credit Agreement is hereby amended by
deleting the words "and 6.13" contained in clause (ii) thereof and substituting
therefor the words ", 6.13 and 6.14".
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(f) Section 5.11 of the Credit Agreement is hereby amended by
deleting the proviso to the second sentence thereof.
(g) Section 6.01(a) of the Credit Agreement is hereby amended by (i)
deleting the text of clause (ix) thereof and substituting therefor the words
"[Intentionally Omitted]" and (ii) deleting the amount "$7,500,000" contained in
clause (x) thereof and substituting therefor the amount "$500,000".
(h) Section 6.04 of the Credit Agreement is hereby amended by
deleting the text of paragraph (h) thereof and substituting therefor the words
"[Intentionally Omitted]".
(i) The Credit Agreement is hereby further amended by adding as new
Sections 6.14 and 6.15 thereof the following:
SECTION 6.14. Minimum EBITDA. Holdings and the Borrower will not
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permit Consolidated EBITDA for any period of four consecutive fiscal
quarters ending on any date set forth below to be less than the amount set
forth below opposite such date:
Date Amount
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September 28, 2001 $33,000,000
December 29, 2001 $27,000,000
March 30, 2002 $26,000,000
June 29, 2002 $23,000,000
September 28, 2002 $23,000,000
December 28, 2002 $22,000,000
SECTION 6.15. Deposit Accounts. (a) As promptly as practicable, and
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in any event no later than September 30, 2001, each of Holdings and the
Borrower shall either (i) enter into, and cause each depositary institution
(each, a "Depositary Bank") at which it maintains any deposit accounts
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(each, a "Deposit Account") to enter into, an agreement in form and
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substance satisfactory to the Collateral Agent (a "Control Agreement")
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pursuant to which, among other things, the Depositary Bank will acknowledge
the security interest in favor of the Collateral Agent for the benefit of
the Secured Party in the Deposit Accounts and agree to follow the
instructions of the Collateral Agent with respect to transfers into and out
of such Deposit Accounts or (ii) cause all such Deposit Accounts to be
transferred to and maintained with the Collateral Agent.
(b) After September 30, 2001, neither Holdings nor the Borrower will
maintain any deposit accounts with a financial institution (other than the
Collateral Agent) that has not entered into a Control Agreement with the
Collateral Agent.
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SECTION 4. Amendment Fee. Each Lender that shall execute a
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counterpart hereof and return such counterpart to the Administrative Agent or
its counsel prior to 12:00 noon, New York City time, on August 10, 2001, shall
be entitled, upon the effectiveness of this Amendment as provided in Section 6
below, to an amendment fee (an "Amendment Fee" and, collectively, the "Amendment
Fees") equal to 1/8 of 1% of the sum of (a) the outstanding Term Loans of such
Lender (after giving effect to the Mandatory Prepayment) and (b) the Revolving
Commitment (whether used or unused) of such Lender, in each case, as calculated
on the Amendment Effective Date (as defined below). The Amendment Fee payable
to a Lender shall be paid to the Administrative Agent for the account of such
Lender, shall be paid in immediately available funds and once paid, shall not be
refundable under any circumstances.
SECTION 5. Representations and Warranties. Each of the Borrower and
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Holdings represents and warrants to each other party hereto that, after giving
effect to this Amendment, (a) the representations and warranties set forth in
Article III of the Credit Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as though made on and
as of the date hereof, except to the extent such representations and warranties
expressly relate to an earlier date, and (b) no Default or Event of Default has
occurred and is continuing.
SECTION 6. Conditions to Effectiveness. This Amendment shall become
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effective as of the date (the "Amendment Effective Date") that (a) the Proposed
Sale and the Mandatory Prepayment shall have occurred and (b) the Administrative
Agent shall have received (i) counterparts of this Amendment which, when taken
together, bear the signatures of the Borrower, Holdings and the Required Lenders
and (ii) the Amendment Fees and reimbursement of all other fees and expenses of
the Administrative Agent for which invoices have been submitted to the Borrower.
SECTION 7. Release of Collateral. Upon the effectiveness of this
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Amendment as provided above, the Required Lenders hereby authorize and direct
the Collateral Agent to take any and all action as may be reasonably requested
by the Borrower to evidence the release of the security interests of the
Security Documents in the ReaLemon Assets.
SECTION 8. Effect of Amendment. Except as expressly set forth
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herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Swingline Lender, the Issuing Bank, the Collateral Agent or the
Administrative Agent under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle the Borrower or Holdings to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
other Loan Document in similar or different circumstances. This Amendment shall
apply and be effective only with respect to the provisions of the Credit
Agreement specifically referred to herein.
SECTION 9. Counterparts. This Amendment may be executed in any
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number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
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SECTION 10. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 11. Headings. The headings of this Amendment are for
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purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
EAGLE FAMILY FOODS, INC.,
by:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Executive Officer
EAGLE FAMILY FOODS HOLDINGS, INC.,
by:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Executive Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
Collateral Agent, Issuing Bank and
Swingline Lender,
by:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
individually and as Documentation Agent,
by:
/s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇, INC.,
by:
/s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
Title: Director
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY
by:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
MASSMUTUAL HIGH YIELD PARTNERS II LLC
By: HYP Management, Inc. as Managing Member
by:
/s/ ▇▇▇▇▇▇ ▇▇
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Name: ▇▇▇▇▇▇ ▇▇
Title: Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
by:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Second Vice President and
Associate General Counsel
KZH WATERSIDE LLC
by:
/s/ ▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
KZH PAMCO LLC
by:
/s/ ▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
KZH ING-2 LLC
by:
/s/ ▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Agent
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SOCIETE GENERATE
by:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Managing Director
FUJI BANK
by:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & Manager
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
by:
/s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
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Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
By: ▇▇▇ ▇▇▇▇▇▇ Management Inc. as Collateral
Manager
by:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
by:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
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▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
by:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
PAMCO CAYMAN LTD
By: Highland Capital Management, L.P.
as Collateral Manager
by:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Portfolio Manager
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio Advisor
by:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital as Portfolio Advisor
by:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME INCOME TRUST
by:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
by:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
10
BANK OF HAWAII
by:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
by:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
by:
/s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ALLIANCE CAPITAL MANAGEMENT L.P., as Manager
on behalf of ALLIANCE CAPITAL FUNDING,
L.L.C., as Assignee
By: Alliance Capital Management Corporation,
General Partner of Alliance Capital
Management L.P.
by:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
MONUMENT CAPITAL LTD., as Assignee
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
by:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, LIMITED
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P., as
Collateral Manager
by:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
NORTHWOODS CAPITAL II, LIMITED
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P., as
Collateral Manager
by:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
NORTHWOODS CAPITAL, LIMITED
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P., as
Collateral Manager
by:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
AG CAPITAL FUNDING PARTNERS, L.P.
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P., as
Investment Advisor
by:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
FLEET NATIONAL BANK
by:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK
by:
/s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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NUVEEN SENIOR INCOME FUND
By: Nuveen Senior Loan Asset Management Inc.
by:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director