EXHIBIT 10.3
AMENDMENT NO. 4
TO
FIVE-YEAR CREDIT AGREEMENT
This AMENDMENT NO. 4, dated as of May 12, 2005 (this "Amendment"), is
made by and among VIACOM INC., a Delaware corporation ("Viacom" or the
"Borrower"), the banks listed on the signature pages of this Amendment as
"Lenders" (the "Lenders"), and JPMORGAN CHASE BANK, N.A. (formerly known as
JPMorgan Chase Bank), as administrative agent for the Lenders (the
"Administrative Agent").
PRELIMINARY STATEMENT:
Viacom, Viacom International Inc., a Delaware corporation ("Viacom
International"), the Lenders, the Administrative Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., as Syndication Agent, and Fleet National Bank and Bank of America, N.A.,
as Co-Documentation Agents, previously entered into that certain Five-Year
Credit Agreement, dated as of March 7, 2001, as amended by Amendment No. 1
thereto, dated as of March 5, 2002, Amendment No. 2 thereto, dated as of
February 28, 2003, and Amendment No. 3 thereto, dated as of February 19, 2004
(as so amended, the "Existing Agreement"; the Existing Agreement, as amended by
this Amendment, being referred to herein as the "Amended Agreement"). The
Borrower now wishes to amend the Existing Agreement in certain particulars. The
Required Lenders and the Administrative Agent have agreed to such amendments, on
the terms and conditions set forth herein. The parties therefore agree as
follows (capitalized terms used but not defined herein having the meanings
assigned such terms in the Existing Agreement):
SECTION 1. Amendments to Existing Agreement. The Existing Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, hereby amended as follows:
(a) References to JPMorgan Chase. Each reference in the Existing
Agreement to (i) the phrase "The Chase Manhattan Bank, a New York banking
corporation" is hereby deleted in its entirety and the new phrase "JPMorgan
Chase Bank, N.A., a national banking association" is substituted therefor, (ii)
the phrase "JPMorgan Chase Bank" is hereby deleted in its entirety and the new
phrase "JPMorgan Chase Bank, N.A." is substituted therefor, and (iii) the phrase
"▇▇ ▇▇▇▇▇▇, a division of Chase Securities Inc." is hereby deleted in its
entirety and the phrase "▇.▇. ▇▇▇▇▇▇ Securities Inc." is substituted therefor.
(b) Consolidated EBITDA. The definition of "Consolidated EBITDA"
contained in Section 1.1 is hereby amended by deleting the phrase "on the
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Disposition of businesses and (iii) pension settlement charges" in its entirety
and substituting therefor the new phrase "on the Disposition of businesses,
(iii) pension settlement charges and (iv) non-cash charges associated with
grants of stock options, employee stock purchase plans and other equity-based
compensation awards to employees and directors, in each case under this clause
(iv) that are expensed in accordance with SFAS No. 123r".
(c) Discontinued Operations. The definition of "Discontinued
Operations" contained in Section 1.1 is hereby amended by deleting the date
"December 14, 1997" in its entirety and substituting therefor the new date
"November 14, 1997".
(d) Material Adverse Effect. The definition of "Material Adverse
Effect" contained in Section 1.1 is hereby amended by deleting the phrase "SFAS
No. 142 and/or SFAS No. 144" in its entirety and substituting therefor the new
phrase "SFAS No. 142, SFAS No. 144 and/or SFAS No. 123r".
(e) New Definitions. The following new definitions are hereby added to
Section 1.1 in the appropriate alphabetical order:
"$2.5 Billion 18-Month Credit Agreement" shall mean the
18-Month Credit Agreement, dated as of May 12, 2005, among Viacom,
Viacom International, each subsidiary borrower party thereto, the
lenders party thereto, JPMorgan Chase Bank, N.A., as administrative
agent, Citibank, N.A., as syndication agent, and Bank of America, N.A.,
Deutsche Bank Securities, Inc. and The Bank of Tokyo-Mitsubishi, Ltd.,
New York Branch, as co-documentation agents, as the same may be
amended, supplemented, restated or otherwise modified from time to
time.
"SFAS" shall have the meaning assigned to such term in Section
1.2(b).
"Viacom Credit Agreements" shall mean the $3.0 Billion
Five-Year Credit Agreement and the $2.5 Billion 18-Month Credit
Agreement.
(f) Canadian Administrative Agent. The definition of "Canadian
Administrative Agent" contained in Annex II is hereby amended in its entirety to
read as follows:
"Canadian Administrative Agent" shall mean JPMorgan Chase
Bank, N.A., Toronto Branch, together with its affiliates, as the
administrative agent for the US-Canadian Lenders (with respect to C$
Loans and fees) under this Agreement, and any successor thereto
pursuant to Section VIII.
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(g) Fees. Section 2.9(a) is hereby amended by deleting the phrase "and
December, on the Revolving Credit Maturity Date or such earlier date on which
the Commitments shall be terminated, commencing on the first of such dates to
occur after the Closing Date" in its entirety and substituting therefor the new
phrase "and December (commencing on the first of such dates to occur after the
Closing Date), and on the Revolving Credit Maturity Date or such earlier date on
which the Commitments shall be terminated".
(h) Corporate Existence. Section 3.1 is hereby amended by deleting the
phrase "or as proposed to be" in its entirety.
(i) Limitation on Subsidiary Indebtedness. Section 5.6 is hereby
amended by deleting the phrase "existing at any time under the $3.0 Billion
Five-Year Credit Agreement" contained in subsection (d) thereof in its entirety
and substituting therefor the new phrase "existing at any time under the Viacom
Credit Agreements".
(j) Notices. Subsections (a), (b) and (c) of Sections 9.1 are hereby
amended in their entirety to read as follows:
"(a) if to Viacom, to it at Viacom Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Treasurer (Telecopy No. (212)
846-1896), with a copy to General Counsel (Telecopy No. (212)
258-6099):
(b) if to Viacom International, to it c/o Viacom Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Treasurer (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to General Counsel (Telecopy No. (212)
258-6099);
(c) if to the Administrative Agent, to it at JPMorgan Chase
Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to (i) JPMorgan Chase
Bank, N.A., Loan and Agency Services, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇ (Telecopy No. (713)
750-2358) and (ii) if such notice or other communication relates to a
Multi-Currency Revolving Loan (including any Borrowing Request for a
Multi-Currency Revolving Loan), ▇.▇. ▇▇▇▇▇▇ Europe Limited, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (Telecopy No. 011-44-207-777-2360);"
(k) Patriot Act Notice. Article IX is hereby amended by adding the
following new Section 9.17 at the end thereof:
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"SECTION 9.17. Patriot Act Notice. Each Lender and each Agent
(for itself and not on behalf of any other party) hereby notifies the
Borrowers and Viacom International that, pursuant to the requirements
of the USA Patriot Act, Title III of Pub. L. 107-56, signed into law
October 26, 2001 (the "Patriot Act"), it is required to obtain, verify
and record information that identifies the Borrowers and Viacom
International, which information includes the name and address of the
Borrowers and Viacom International and other information that will
allow such Lender or such Agent, as applicable, to identify the
Borrowers and Viacom International in accordance with the Patriot Act."
(l) Schedule of Guarantees. Schedule 1.1(a) to the Credit Agreement is
hereby deleted in its entirety and Schedule 1.1(a) attached hereto is
substituted therefor.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written (the "Effective Date") when, and
only when, (a) the $2.5 Billion 18-Month Credit Agreement (as defined in Section
1(g) above) shall have become effective pursuant to the terms thereof and (b)
the Administrative Agent shall have received (i) counterparts of this Amendment
executed by Viacom, the Required Lenders and the Administrative Agent (provided,
that any Lender that executes the $2.5 Billion 18-Month Credit Agreement (as
defined in Section 1(g) above) shall be deemed to have delivered a counterpart
of this Amendment), and (ii) the consent of Viacom International, substantially
in the form of Exhibit A hereto, duly executed by an authorized officer of
Viacom International.
SECTION 3. Representations and Warranties of Borrower. The Borrower
hereby represents and warrants as follows:
(a) No Breach, etc. None of the execution and delivery of this
Amendment, the consummation of the transactions contemplated herein and in the
Amended Agreement and compliance with the terms and provisions hereof and
thereof will conflict with or result in a breach of, or require any consent
under, the charter or By-laws (or other equivalent organizational documents) of
the Borrower, or any applicable law or regulation, or any order, writ,
injunction or decree of any Governmental Authority, or any material agreement or
instrument to which Viacom or any of its Material Subsidiaries is a party or by
which any of them is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument, or result in the creation or
imposition of any Lien upon any of the revenues or assets of Viacom or any of
its Material Subsidiaries pursuant to the terms of any such agreement or
instrument.
(b) Corporate Action. The Borrower has all necessary corporate power
and authority to execute and deliver this Amendment and to perform its
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obligations under this Amendment and the Amended Agreement; the execution and
delivery by the Borrower of this Amendment, and the performance by the Borrower
of this Amendment and the Amended Agreement, have been duly authorized by all
necessary corporate action on the Borrower's part; this Amendment has been duly
and validly executed and delivered by the Borrower; and each of this Amendment
and the Amended Agreement constitutes a legal, valid and binding obligation of
the Borrower, enforceable in accordance with its terms except as such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer 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).
(c) Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority are necessary for the
execution, delivery or performance by the Borrower of this Amendment or for the
validity or enforceability hereof.
SECTION 4. Reference to and Effect on the Existing Agreement. (a) Upon
the effectiveness of this Amendment: (i) each reference in the Existing
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Existing Agreement shall mean and be a reference to the Amended
Agreement; and (ii) each reference in any other Loan Document to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Existing Agreement shall mean and be a reference to the Amended Agreement.
(b) Except as specifically amended above, the Existing Agreement shall
continue to be in full force and effect and is hereby in all respects ratified
and confirmed.
(c) 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 the Lenders or the Administrative Agent under the Existing
Agreement or any other Loan Document, nor constitute a waiver of any provision
of the Existing Agreement or any other Loan Document.
SECTION 5. Execution in Counterparts. This Amendment may be executed in
two or more counterparts, each of which constitutes an original but all of which
when taken together shall constitute but one contract. In furtherance of the
foregoing, it is understood and agreed that signatures hereto submitted by
facsimile transmission shall be deemed to be, and shall constitute, original
signatures.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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SECTION 7. Severability. In the event any one or more of the provisions
contained in this Amendment should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 8. Headings. Section headings used herein are for convenience
of reference only, are not part of this Amendment and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Amendment.
[Remainder of the page left blank intentionally; Signature page to follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
VIACOM INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President &
Chief Financial Officer
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as agent
for the Lenders party to the $2.5
Billion 18-Month Credit Agreement
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
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Lenders
JPMORGAN CHASE BANK, N.A. (as
successor to The Chase Manhattan
Bank), as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
JPMORGAN CHASE BANK, N.A., TORONTO
BRANCH (as successor to The Chase
Manhattan Bank, Toronto Branch), as
a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
CITIBANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CITIBANK N.A., CANADIAN BRANCH, as a
Lender
By:
-----------------------------------
Name:
Title:
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BANK OF AMERICA, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
BANK OF AMERICA, N.A. (acting
through its Canada branch), as a
Lender
By: /s/ ▇▇▇▇▇▇ Sales ▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ Sales ▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
FLEET NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
SUMITOMO MITSUI BANKING CORPORATION
(as successor to The Sumitomo Bank,
Limited), as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Joint General Manager
S-4
THE BANK OF NEW YORK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Authorized Signatory
DEUTSCHE BANK AG, NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH, as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK AG, CANADA BRANCH, as a
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director &
Principal Officer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
S-5
MIZUHO CORPORATE BANK, LTD. (as
successor in interest to The
Dai-Ichi Kangyo Bank Ltd., The
Fuji Bank, Limited, and The
Industrial Bank of Japan, Limited),
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇
Title: Director
BARCLAYS BANK PLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director
S-6
UFJ BANK LIMITED (as successor to The
Sanwa Bank, Limited, New York
Branch, and The Tokai Bank,
Limited, New York Branch), as a
Lender
By:
-----------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
MELLON BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President
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CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Associate
CREDIT SUISSE FIRST BOSTON Toronto
Branch, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
THE ROYAL BANK OF SCOTLAND PLC, as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
S-8
WACHOVIA BANK, N.A., as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
WESTLB AG, NEW YORK BRANCH (as
successor to Westdeutsche
Landesbank Girozentrale, New York
Branch), as a Lender
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
LLOYDS TSB BANK PLC, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Corporate Banking R089
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director, Financial
Institutions, USA G311
S-9
THE NORINCHUKIN BANK, NEW YORK BRANCH,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Joint General Manager
SUNTRUST BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
ABN AMRO BANK N.V., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
UBS AG, STAMFORD BRANCH, as a Lender
By: /s/ Winslowe Ogbourne
-----------------------------------
Name: Winslowe Ogbourne
Title: Associate Director Banking
Products Services, US
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate Director Banking
Products Services, US
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▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
NATIONAL AUSTRALIA BANK LIMITED, as a
Lender
By:
-----------------------------------
Name:
Title:
BANK OF SCOTLAND, as a Lender
By:
-----------------------------------
Name:
Title:
