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EXHIBIT 10.9
SIXTH AMENDMENT
THIS SIXTH AMENDMENT (this "Agreement"), dated as of December 29, 2000,
is entered into by and among EXTENDICARE HEALTH SERVICES, INC., a Delaware
corporation (the "Borrower"), each of the Persons identified as a "Guarantor" on
the signature pages hereto, each of the Persons identified as a "Lender" on the
signature pages hereto and BANK OF AMERICA, N.A., formerly NationsBank, N.A., as
Agent for the Lenders (in such capacity, the "Agent").
RECITALS
A. The Borrower, the Guarantors, the Lenders and the Agent, are party
to that certain Credit Agreement dated as of November 26, 1997 (as previously
amended prior to the date hereof, the "Credit Agreement"). Unless otherwise
defined herein or the context otherwise requires, capitalized terms used in this
Agreement, including its preamble and recitals, have the meanings provided in
the Credit Agreement.
B. The Credit Parties have requested certain amendments to the Credit
Agreement.
C. The Required Lenders have agreed to amend the Credit Agreement on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto hereby agree as follows:
1. Amendments to Credit Agreement.
(a) The following proviso is hereby added to the end of the definition
of "Indebtedness" appearing in Section 1.1 of the Credit Agreement and shall
read as follows:
"provided, however, Indebtedness of such Person shall not
include certain unsecured promissory notes issued to trusts established
by the Credit Parties for purposes approved by the Agent in an
aggregate amount not to exceed $62,000,000.
(b) Mandatory Prepayment; Conditional Reduction. Upon the receipt by
the Credit Parties of the federal income tax refund generated by the carryback
of the year 2000 taxable loss, the Borrower shall prepay the Revolving Loans
(without a permanent reduction of the Revolving Committed Amount, but subject to
an Availability Reserve, as defined below) in an amount equal to the actual cash
proceeds received from such federal income tax refund which are attributable to
the establishment of the trusts described in clause (a) above. Failure of the
Borrower to make such prepayment upon the receipt by the Credit Parties of such
federal income tax refund shall constitute an immediate Event of Default. The
portion of the Revolving Committed Amount subject to such Availability Reserve
shall only become available to the Borrower (subject to the satisfaction of
Section 5.2 of the Credit Agreement and the delivery to the Agent of
satisfactory evidence that such borrowing will be used for the purposes
hereinafter described) for the purpose of (i) paying the
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principal amount of the unsecured promissory notes excluded from the definition
of "Indebtedness" in Section 1.1 of the Credit Agreement in accordance with the
terms of the agreements governing the related trusts, (ii) paying the United
States Internal Revenue Service (the "IRS") for the tax associated with any
deduction received by the Credit Parties for tax year 2000 in connection with
the establishment of the aforementioned trusts or (iii) posting appeal bonds or
issuing letters of credit to the extent required by any United States court of
law in connection with appeals of adverse judgments against the Credit Parties.
For purposes of this clause (b), "Availability Reserve" shall mean an amount of
undrawn availability which must be maintained by the Borrower under the
Revolving Committed Amount in an amount equal to the actual cash proceeds
received from the federal income tax refund generated by the carryback of the
year 2000 taxable loss which are attributable to the establishment of the trusts
described in clause (a) above; provided that such undrawn availability
requirement shall be in addition to any requirements of minimum undrawn
availability set forth in the last sentence of Section 2.1(a) of the Credit
Agreement.
(c) Certain Interest Payments. The Credit Parties shall not allow the
aggregate amount of cash interest which has accumulated in the trusts described
in clause (a) above to exceed $1,000,000 as of any date of determination.
Failure of the Credit Parties to comply with this clause (c) shall constitute an
immediate Event of Default.
2. Effective Date. This Agreement shall be and become effective as of
the date hereof at such time as the Agent shall have received executed
counterparts (including facsimile signatures) of this Agreement, which
collectively shall have been duly executed on behalf of each of the Credit
Parties and the Required Lenders; provided, however, if the Required Lenders
have not consented to this Agreement on or before December 29, 2000, the
Agreement shall never become effective.
3. Construction. This Agreement is a Credit Document executed pursuant
to the Credit Agreement and shall (unless otherwise expressly indicated therein)
be construed, administered and applied in accordance with the terms and
provisions of the Credit Agreement.
4. Representations and Warranties. Each Credit Party hereby represents
and warrants that (i) each Credit Party that is party to this Agreement: (a) has
the requisite corporate power and authority to execute, deliver and perform this
Agreement, as applicable and (b) is duly authorized to, and has been authorized
by all necessary corporate action, to execute, deliver and perform this
Agreement, (ii) the representations and warranties contained in Section 6 of the
Credit Agreement are true and correct in all material respects on and as of the
date hereof upon giving effect to this Agreement as though made on and as of
such date (except for those which expressly relate to an earlier date) and (iii)
no Default or Event of Default exists under the Credit Agreement on and as of
the date hereof upon giving effect to this Agreement.
5. Acknowledgment. The Guarantors acknowledge and consent to all of the
terms and conditions of this Agreement and agree that this Agreement does not
operate to reduce or discharge the Guarantors' obligations under the Credit
Agreement or the other Credit Documents. The Guarantors further acknowledge and
agree that the Guarantors have no claims, counterclaims, offsets, or defenses to
the Credit Documents and the performance of the Guarantors' obligations
thereunder or if the Guarantors did have any such claims, counterclaims, offsets
or defenses to the
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Credit Documents or any transaction related to the Credit Documents, the same
are hereby waived, relinquished and released in consideration of the Lenders'
execution and delivery of this Agreement.
6. Counterparts. This Agreement may be executed by the parties hereto
in several counterparts, each of which shall be deemed to be an original and all
of which shall constitute together but one and the same agreement.
7. Binding Effect. This Agreement, the Credit Agreement and the other
Credit Documents embody the entire agreement between the parties and supersede
all prior agreements and understandings, if any, relating to the subject matter
hereof. These Credit Documents represent the final agreement between the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of the parties. Except as expressly modified and amended in this
Agreement, all the terms, provisions and conditions of the Credit Documents
shall remain unchanged and shall continue in full force and effect.
8. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
BORROWER: EXTENDICARE HEALTH SERVICES, INC.,
By:
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Name: Xxxx X. Xxxxxxxx
Title: Vice President-Finance
GUARANTORS: EXTENDICARE HOLDINGS, INC.
EXTENDICARE HEALTH FACILITY
HOLDINGS, INC.
EXTENDICARE HEALTH FACILITIES, INC.
COVENTRY CARE, INC.
NORTHERN HEALTH FACILITIES, INC.
EXTENDICARE HOMES, INC.
EXTENDICARE HEALTH NETWORK, INC.
THE PROGRESSIVE STEP CORPORATION
EXTENDICARE OF INDIANA, INC.
EDGEWOOD NURSING CENTER, INC.
ELDER CREST, INC.
HAVEN CREST, INC.
MEADOW CREST, INC.
OAK HILL HOME OF REST AND CARE, INC.
EXTENDICARE GREAT TRAIL, INC.
FIR LANE TERRACE CONVALESCENT
CENTER, INC.
ADULT SERVICES UNLIMITED, INC.
ARBORS EAST, INC.
ARBORS AT TOLEDO, INC.
HEALTH POCONOS, INC.
XXXXXXXX PROPERTIES, INC.
COVENTRY CARE HOLDINGS, INC.
By:
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Name: Xxxx X. Xxxxxxxx
Title: Vice President-Finance
{Signatures continue.]
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INDIANA HEALTH AND REHABILITATION
CENTER PARTNERSHIP
By: Extendicare Homes, Inc.,
as General Partner
By:
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Name: Xxxx X. Xxxxxxxx
Title: Vice President-Finance
By: Extendicare of Indiana, Inc.,
as General Partner
By:
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Name: Xxxx X. Xxxxxxxx
Title: Vice President-Finance
CONCORDIA MANOR, LLC
FIRST COAST HEALTH AND
REHABILITATION CENTER, LLC
XXXXXXX HEIGHTS REHABILITATION
CENTER, LLC
TREASURE ISLE CARE CENTER, LLC
By: Extendicare Homes, Inc., as sole member
By:
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Name: Xxxx X. Xxxxxxxx
Title: Vice President-Finance
XXXXXXX STREET, WV, LLC
NEW CASTLE CARE, LLC
By: Fir Lane Terrace Convalescent Center,
Inc., as sole member
By:
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Name: Xxxx X. Xxxxxxxx
Title: Vice President-Finance
[Signatures continue.]
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ALPINE HEALTH AND REHABILITATION
CENTER, LLC
COLONIAL CARE, LLC
GREENBRIAR CARE, LLC
GREENBROOK CARE, LLC
HERITAGE CARE, LLC
LADY LAKE CARE, LLC
NEW HORIZON CARE, LLC
NORTH REHABILITATION CARE, LLC
PALM COURT CARE, LLC
XXXXXX MANOR, LLC
ROCKLEDGE CARE, LLC SOUTH HERITAGE HEALTH
AND REHABILITATION CENTER, LLC
THE OAKS RESIDENTIAL AND
REHABILITATION CENTER, LLC
WINTER HAVEN HEALTH AND
REHABILITATION CENTER, LLC
EDGEWOOD CARE, LP
ELDERCREST CARE, LP
HAVEN CARE, LP
MEADOW CARE, LP
OAKHILL CARE, LP
By: Extendicare Health Facilities, Inc.,
as sole member or general partner, as
applicable
By:
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Name: Xxxx X. Xxxxxxxx
Title: Vice President-Finance
[Signatures continue.]
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ARBORS AT TAMPA, LLC
ARBORS AT BAYONET POINT, LLC
JACKSONVILLE CARE, LLC
SAFETY HARBOR CARE, LLC
KISSIMMEE CARE, LLC
ORANGE PARK CARE, LLC
PORT CHARLOTTE CARE, LLC
SARASOTA CARE, LLC
SEMINOLE CARE, LLC
WINTER HAVEN CARE, LLC
BLANCHESTER CARE,LLC
CANTON CARE, LLC
COLUMBUS HEALTH CARE LLC
DAYTON CARE, LLC
DELAWARE CARE, LLC
FAIRLAWN CARE, LLC
GALLIPOLIS CARE, LLC
XXXXXXXX CARE, LLC
LONDON CARE, LLC
MARIETTA CARE, LLC
TOLEDO CARE, LLC
WATERVILLE CARE, LLC
WEST JEFFERSON CARE, LLC
By: Northern Health Facilities, Inc.,
as sole member
By:
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Name: Xxxx X. Xxxxxxxx
Title: Vice President-Finance
STONEBRIDGE CARE, LP
By: Extendicare Homes, Inc. and
Coventry Care Holdings, Inc.,
as general partners
By:
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Name: Xxxx X. Xxxxxxxx
Title: Vice President-Finance
[Lenders' Signatures continue.]
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LENDERS: BANK OF AMERICA, N.A.,
formerly NationsBank, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By:
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Name:
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Title:
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ROYAL BANK OF CANADA
By:
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Name:
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Title:
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FIRSTAR BANK MILWAUKEE, N.A.
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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POST BALANCED FUND, L.P.
By: Post Advisory Group, Inc.,
its investment advisor
By:
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Name:
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Title:
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CREDIT SUISSE FIRST BOSTON
By:
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Name:
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Title:
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XXX XXXX XX XXXX XXXXXX
By:
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Name:
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Title:
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KEY CORPORATE CAPITAL INC.
By:
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Name:
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Title:
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LASALLE BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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TORONTO DOMINION (TEXAS), INC.
By:
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Name:
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Title:
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BANK ONE, N.A.
By:
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Name:
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Title:
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BANK ONE, N.A. (F/K/A BANK ONE DAYTON)
By:
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Name:
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Title:
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BANK OF MONTREAL
By:
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Name:
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Title:
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THE FUJI BANK, LIMITED
By:
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Name:
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Title:
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U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By:
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Name:
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Title:
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COMERICA BANK
By:
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Name:
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Title:
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CHASE SECURITIES INC AS AGENT FOR
THE CHASE MANHATTAN BANK
By:
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Name:
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Title:
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BLACK DIAMOND CLO 2000-1 LTD.
By:
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Name:
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Title:
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BLACK DIAMOND CLO 1998-1 LTD.
By:
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Name:
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Title:
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THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:
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Name:
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Title:
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XXXXXXX X XXXXX & SONS SPECIAL
SITUATION PARTNERS L.P.
By:
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Name:
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Title:
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FLEET NATIONAL BANK (f/k/a BankBoston, N.A.)
By:
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Name:
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Title:
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INDOSUEZ CAPITAL FUNDING III,
LIMITED
By: Indosuez Capital,
as Portfolio Advisor
By:
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Name:
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Title:
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MARINER LDC
By:
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Name:
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Title:
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PARIBAS CAPITAL FUNDING LLC
By:
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Name:
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Title:
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CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company,
its Investment Manager
By:
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Name:
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Title:
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KZH CRESCENT LLC
By:
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Name:
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Title:
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KZH CRESCENT-2 LLC
By:
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Name:
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Title:
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ROYALTON COMPANY
By: Pacific Investment Management Company,
as its Investment Advisor
By:
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Name:
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Title:
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CAPTIVA III FINANCE LTD.
By:
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Name:
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Title:
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XXXXXXX NATIONAL LIFE INSURANCE
COMPANY
By: PPM America, Inc., as attorney-in-fact,
on behalf of Xxxxxxx National Life
Insurance Company
By:
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Name:
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Title:
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ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors LLC, as Collateral
Manager
By:
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Name:
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Title:
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SENIOR DEBT PORTFOLIO
By: By Boston Management and Research, as
Investment Advisor
By:
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Name:
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Title:
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CYPRESSTREE INVESTMENT PARTNERS I, LTD.
By: CypressTree Investment Management Company,
Inc., as Portfolio Manager
By:
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Name:
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Title:
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XXXX XXXXXXX MUTUAL LIFE
By:
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Name:
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Title:
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XXXX XXXXXXX VARIABLE LIFE
By:
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Name:
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Title:
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NATIONAL CITY BANK
By:
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Name:
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Title:
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DELANO COMPANY
By:
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Name:
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Title:
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