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EXHIBIT 10.106
SECOND AMENDMENT TO CREDIT AGREEMENT, THIRD AMENDMENT TO
GUARANTY AGREEMENT AND WAIVER
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, THIRD AMENDMENT TO GUARANTY
AGREEMENT AND WAIVER (hereinafter, the "Agreement") is entered into as of
January 26, 2001 among the Borrowers party hereto, HCR/Alterra Development, LLC,
a Delaware limited liability company (the "Parent"), Alterra Healthcare
Corporation, a Delaware corporation ("Alterra"), Manor Care, Inc., a Delaware
corporation ("HCR"), Bank of America, N.A., as Administrative Agent (in such
capacity, the "Administrative Agent") and the Lenders party hereto. Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings given to them in the Credit Agreement.
RECITALS
WHEREAS, the Borrowers party thereto, the Parent, the Administrative
Agent, The Chase Manhattan Bank, as syndication agent, Deutsche Bank AG New York
and/or Cayman Islands Branches and Bank United, F.S.B., as co-agents and the
Lenders are parties to that certain Credit Agreement dated as of September 30,
1999 (as amended or modified from time to time, the "Credit Agreement");
WHEREAS, Alterra entered into that certain Guaranty Agreement dated as
of September 30, 1999 in favor of the Administrative Agent, on behalf of the
Lenders (as amended or modified from time to time, the "Alterra Guaranty
Agreement") and HCR entered into that certain Guaranty Agreement dated as of
September 30, 1999 in favor of the Administrative Agent, on behalf of the
Lenders (as amended or modified from time to time, the "HCR Guaranty
Agreement");
WHEREAS, the Credit Parties acknowledge that (a) a Default currently
exists under the Credit Agreement as a result of the failure of the Operative
Parties to comply with the terms of Section 7.11(a) of the Credit Agreement with
respect to the fiscal quarter of the Borrowers ending September 30, 2000 and (b)
a Pool A Event of Default currently exists under the Credit Agreement as a
result of the failure of the Operative Parties to comply with the terms of
Section 7.1(d) of the Credit Agreement with respect to the fiscal quarter of the
Borrowers ending September 30, 2000 (the defaults enumerated in (a) and (b)
collectively, the "Existing Defaults");
WHEREAS, Alterra has issued 1,250,000 shares of Series A 9.75%
Convertible Pay-In-Kind Preferred Stock (the "Series A Stock") and has agreed
with the holders of such Series A Stock to dividend to such holders certain
rights and benefits which are substantially similar and proportionate to the
rights and benefits distributed to the holders of Alterra's common stock
pursuant to Alterra's shareholders' rights plan (the "Shareholders' Rights
Dividend");
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WHEREAS, the Credit Parties have requested that the Lenders (a) waive
the Existing Defaults, (b) consent to Alterra's making the Shareholders' Rights
Dividend, (c) amend certain terms of the Credit Agreement as set forth herein
and (d) amend certain terms of the Alterra Guaranty Agreement as set forth
herein;
WHEREAS, the Lenders are willing to comply with the foregoing requests,
based upon and subject to the terms and conditions specified in this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Reaffirmation of Existing Debt. The Credit Parties acknowledge and
confirm that (a) the Borrowers' obligations to repay the outstanding principal
amount of the Loans is unconditional and not subject to any offsets, defenses or
counterclaims, (b) the Administrative Agent, on behalf of the Lenders, has a
valid and enforceable first priority perfected security interest in the
Collateral, (c) the Administrative Agent and the Lenders have performed fully
all of their respective obligations under the Credit Agreement and the other
Credit Documents, and (d) by entering into this Agreement, the Administrative
Agent and the Lenders do not waive or release (except as specifically provided
in Section 2 and Section 3 hereof) any term or condition of the Credit Agreement
or any of the other Credit Documents or any of their rights or remedies under
such Credit Documents or applicable law or any of the obligations of any Credit
Party thereunder.
2. Waiver. Subject to the other terms and conditions of this Agreement,
the Lenders hereby waive the Existing Defaults. Except for the waiver contained
herein, this Agreement does not modify or effect the obligations of the Credit
Parties to comply fully with all terms, conditions and covenants contained in
the Credit Documents. The waiver contained herein is a one time waiver and is
limited to the Existing Defaults, and nothing contained in this Agreement shall
be deemed to constitute a waiver of any other rights or remedies the
Administrative Agent or any Lender may have under the Credit Agreement or any
other Credit Document or under applicable law.
3. Consent. Subject to the other terms and conditions of this
Agreement, the Lenders hereby consent to Alterra's making the Shareholders'
Rights Dividend to the holders of the Series A Stock, notwithstanding the terms
of Section 5.5 of the Alterra Guaranty Agreement.
4. Amendments to the Credit Agreement.
(a) Debt Service. The definitions of "Debt Service" and "Debt
Service Coverage Ratio" set forth in Section 1.1 of the Credit
Agreement are hereby deleted in their entirety from the Credit
Agreement.
(b) Revolving Committed Amount. The definition of "Revolving
Committed Amount" set forth in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
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"Revolving Committed Amount" means Fifty Six Million
Nine Hundred Seventy Seven Thousand Nine Hundred Thirty Seven
Dollars and Sixty One Cents ($56,977,937.61) (as such
aggregate maximum amount may be reduced from time to time as
provided in Section 3.4).
(c) Maturity Date. The definition of "Maturity Date" set forth
in Section 1.1 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"Maturity Date" means June 29, 2001.
(d) Stabilized Eligible Project. The definition of "Stabilized
Eligible Project" set forth in Section 1.1 of the Credit Agreement is
hereby deleted in its entirety from the Credit Agreement.
(e) No Extension. Section 2.2 of the Credit Agreement is
hereby deleted in its entirety and shall now read as follows:
2.2 [Reserved].
(f) Quarterly Operating Statements. Section 7.1(b) of the
Credit Agreement is hereby amended and restated in its entirety to read
as follows:
(b) Quarterly Operating Statements. As soon as
available, and in any event within 30 days after the close of
each fiscal quarter of the Borrowers, an operating statement
for each Eligible Project, together with (i) the Occupancy
Rate, as at the end of such fiscal quarter for each Eligible
Project and (ii) comparative figures for the preceding fiscal
quarter, all such information to be in reasonable form and
detail and reasonably acceptable to the Administrative Agent
accompanied by a certificate of the chief financial officer of
the applicable Borrower to the effect that such quarterly
operating statements fairly present in all material respects
the operating results of the applicable Eligible Project.
(g) Officer's Certificate. Section 7.1(d) of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
(d) Officer's Certificate. At the time of delivery of
the operating statements provided for in Section 7.1(b) above,
a certificate of an Executive Officer of each Designated
Borrower substantially in the form of Exhibit 7.1(d) stating
that no Default or Event of Default exists, or if any Default
or Event of Default does exist, specifying the nature and
extent thereof and what action the Operative Parties propose
to take with respect thereto.
(h) Annual Business Plan and Budgets. Section 7.1(e) of the
Credit Agreement is hereby deleted in its entirety and shall now read
as follows:
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(e) [Reserved].
(i) Insurance. Section 7.6(c)(v) of the Credit Agreement is
hereby amended by deleting the reference to "Section 2.2" in Section
7.6(c)(v) of the Credit Agreement and replacing such reference with
"Section 2.1".
(j) Financial Covenants. Schedule 7.11 of the Credit Agreement
is hereby deleted in its entirety and shall now read as follows:
7.11 [Reserved].
(k) Asset Dispositions. The second and third paragraphs of
Section 8.5 of the Credit Agreement are hereby amended and restated in
their entirety to read as follows:
Notwithstanding the foregoing paragraph, a Borrower
may sell a Facility and obtain the release of the
Administrative Agent's security interest, for the benefit of
the Lenders, with respect to such Facility provided (i) no
Default (other than a Default which the applicable Borrower is
attempting to remedy by removing such Facility as Collateral
in accordance with the terms of this Section 8.5) or Event of
Default exists before or after giving effect to any such sale,
(ii) such Facility is sold pursuant to the terms and
conditions of an arms-length contract for fair market value,
(iii) to the extent such Borrower has any Revolving Loans
outstanding hereunder, the proceeds received from such
disposition of such Facility are applied to prepay such
Revolving Loans borrowed by such Borrower in full in
accordance with Section 3.3(b)(ii) and (iv) the Borrowing Base
shall continue to exceed the amount of Revolving Loans
outstanding after giving effect to any such sale (to be
evidenced by the delivery to the Administrative Agent prior to
consummating such sale of a Borrowing Base Certificate
certified by each of the chief financial officers of the
Designated Borrowers to be true and correct).
Notwithstanding the terms of Section 8.4 and Section
8.5 to the contrary, the Parent and the limited partners of a
Borrower may (i) sell the Capital Stock of such Borrower or
(ii) merge such Borrower with and into a successor entity and
obtain the release of the Administrative Agent's security
interest, for the benefit of the Lenders, with respect to the
Facility owned by such Borrower provided (A) no Default (other
than a Default which the Parent and the limited partners of
the applicable Borrower are attempting to remedy by removing
the Facility of such Borrower as Collateral in accordance with
the terms of this Section 8.5) or Event of Default exists
before or after giving effect to any such disposition of
Capital Stock or merger, as applicable, (B) such Capital Stock
is sold or such merger is consummated, as applicable, pursuant
to the terms and conditions of an arms-length contract for
fair market value, (C) to the extent such Borrower has any
Revolving Loans outstanding hereunder, the proceeds received
from such disposition of Capital Stock or merger, as
applicable, are applied to prepay such Revolving Loans
borrowed by such Borrower in accordance with Section
3.3(b)(ii) and (D) after giving effect to any such disposition
of Capital Stock or
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merger, as applicable, the Borrowing Base shall continue to
exceed the amount of Revolving Loans outstanding (to be
evidenced by the delivery to the Administrative Agent prior to
consummating such disposition or merger, as applicable, of a
Borrowing Base Certificate certified by each of the chief
financial officers of the Designated Borrowers to be true and
correct).
(l) Events of Default. Section 9.1(a)(iii)(C) of the Credit
Agreement is hereby deleted in its entirety and shall now read as
follows:
(C) [Reserved].
(m) Schedule 2.1(a)(i). Schedule 2.1(a)(i) of the Credit
Agreement is hereby amended and restated in its entirety to read as
provided on Schedule 2.1(a)(i) attached hereto.
(n) Exhibit 7.1(d). Exhibit 7.1(d) of the Credit Agreement is
hereby amended and restated in its entirety to read as provided on
Exhibit 7.1(d) attached hereto.
5. Amendments to the Alterra Guaranty Agreement.
(a) Definitions. The definitions of "Debentures", "Debt
Service Coverage Ratio", "EBITDA", "Equity Issuance", "Funded
Indebtedness", "Interest", "Leverage Ratio", "Net Income", "Net Worth",
"Rent" and "Rental Expense" set forth in Section 1.1 of the Alterra
Guaranty Agreement are each hereby deleted in their entirety from the
Alterra Guaranty Agreement.
(b) Officer's Certificate. Section 4.1(c) of the Alterra
Guaranty Agreement is hereby amended and restated in its entirety to
read as follows:
(c) Officer's Certificate. At the time of delivery of
the financial statements provided for in Section 4.1(a) and
4.1(b) above, a certificate of an Executive Officer of
Alterra, stating that no Default or Event of Default exists,
or if any Default or Event of Default does exist, specifying
the nature and extent thereof and what action the Credit
Parties propose to take with respect thereto.
(c) Financial Covenants. Section 4.9 of the Alterra Guaranty
Agreement is hereby deleted in its entirety and shall now read as
follows:
4.9 [Reserved].
(d) Restricted Payments. Section 5.5(i) of the Alterra
Guaranty Agreement is hereby amended and restated in its entirety to
read as follows:
(i) so long as no Default or Event of Default shall
have occurred or be continuing and no Default or Event of
Default shall exist after giving effect thereto and subject to
the terms of Section 4.1(j), Alterra may repurchase those
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certain convertible securities of Alterra due December 31,
2002 prior to their maturity; provided, that the aggregate
consideration (including cash and non-cash consideration on a
fair market value basis) paid for all such repurchases of such
convertible securities does not exceed $25,000,000 in the
aggregate during the term of the Credit Agreement; provided,
further, however, Alterra may repurchase an additional amount
of such convertible securities in an amount not exceeding
$15,000,000 in the aggregate during the term of the Credit
Agreement so long as Alterra finances such repurchases with
net cash proceeds received by Alterra (I) as a result of
financing or refinancing properties on a non-recourse basis or
(II) from the sale of Non-Stabilized Projects.
6. Conditions Precedent. The effectiveness of this Agreement is subject
to the satisfaction of each of the following conditions (in form and substance
satisfactory to the Administrative Agent):
(a) The Administrative Agent shall have received executed
counterparts of this Agreement duly executed by the Credit Parties, the
Administrative Agent and the Required Lenders.
(b) The Administrative Agent shall have received an opinion
(satisfactory in form and substance to the Administrative Agent) from
the counsel to the Credit Parties as to authority, enforceability and
such other matters as may be required by the Administrative Agent.
(c) Payment by the Credit Parties of all legal fees and
expenses of the Administrative Agent.
(d) The Administrative Agent shall have received such other
documents and information as it deems reasonably necessary.
7. Miscellaneous.
(a) The term "Credit Agreement" as used in each of the Credit
Documents shall hereafter mean the Credit Agreement as amended by this
Agreement. Except as herein specifically agreed, the Credit Agreement
and the obligations of the Credit Parties thereunder and under the
other Credit Documents are hereby ratified and confirmed and shall
remain in full force and effect according to their terms.
(b) Each Credit Party hereby represents and warrants as
follows:
(i) Such Credit Party has taken all necessary action to
authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement has been duly executed and delivered
by such Credit Party and constitutes each such Credit Party's legal,
valid and binding obligations, enforceable in accordance with its
terms, except as such enforceability may be subject to
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(i) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity).
(iii) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Credit Party of this Agreement.
(c) Each Operative Party hereby represents and warrants with
respect to itself to the Lenders that (i) the representations and
warranties of such Operative Party set forth in Section 6 of the Credit
Agreement are true and correct as of the date hereof and (ii) other
than the Existing Defaults, no unwaived event has occurred and is
continuing which constitutes a Default or Event of Default. Alterra
hereby represents and warrants to the Lenders that (i) the
representations and warranties of Alterra set forth in Section 3 of the
Alterra Guaranty Agreement are true and correct as of the date hereof
and (ii) no unwaived event has occurred and is continuing which
constitutes a Default or an Event of Default under the Alterra Guaranty
Agreement. HCR hereby represents and warrants to the Lenders that (i)
the representations and warranties of HCR set forth in Section 3 of the
HCR Guaranty Agreement are true and correct as of the date hereof and
(ii) no unwaived event has occurred and is continuing which constitutes
a Default or Event of Default.
(d) The Guarantors (i) acknowledge and consent to all of the
terms and conditions of this Agreement, (ii) affirm all of their
obligations under the Credit Documents and (iii) agree that this
Agreement and all documents executed in connection herewith do not
operate to reduce or discharge the Guarantors' obligations under the
Credit Agreement or the other Credit Documents.
(e) This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same
instrument. Delivery of an executed counterpart of this Agreement by
telecopy shall be effective as an original and shall constitute a
representation that an executed original shall be delivered. Upon
satisfaction of the conditions identified in Section 6 hereof, the
effectiveness of this Agreement shall be retroactive to December 31,
2000.
(d) 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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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.
BORROWERS: CLARE BRIDGE OF AKRON L.P.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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CLARE BRIDGE OF ARLINGTON L.P.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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XXXXX XXXXXX XX XXXXXXXXXX L.P.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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CLARE BRIDGE OF XXXXXXX FARMS L.P.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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XXXXX XXXXXX XX XXXXXXXXXXX L.P.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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CLARE BRIDGE OF FT. XXXXX X.X.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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XXXXX XXXXXX XX XXXXXXX L.P.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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CLARE BRIDGE OF JEFFERSON TOWNSHIP L.P.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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XXXXX XXXXXX XX XXXXXXX L.P.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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CLARE BRIDGE OF PARMA L.P.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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XXXXX XXXXXX XX XXXXXXXXXX X.X.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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CLARE BRIDGE OF TUSCAWILLA L.P.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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XXXXX XXXXXX XX XXXXXXXXX L.P.,
a Delaware limited partnership
By: HCR/Alterra Development, LLC,
a Delaware limited liability company, its
sole general partner
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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GUARANTORS: HCR/ALTERRA DEVELOPMENT, LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Co-Vice President
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Co-Vice President
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ALTERRA HEALTHCARE CORPORATION,
a Delaware corporation
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Senior Vice President
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MANOR CARE, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Treasurer
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LENDERS: BANK OF AMERICA, N.A.,
as Administrative Agent and as a Lender
By: /s/ F. Xxxxx Xxxxxxxx
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Name: F. Xxxxx Xxxxxxxx
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Title: Managing Director
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THE CHASE MANHATTAN BANK
By: /s/ Xxxx Xxx Xxx
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Name: Xxxx Xxx Xxx
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Title: Vice President
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DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLAND BRANCHES
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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BANK UNITED, F.S.B.
By: /s/
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Name:
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Title:
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COMERICA BANK
By: /s/
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Name:
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Title:
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NATIONAL CITY BANK
By: /s/
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Name:
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Title:
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THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Vice President
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BANK OF MONTREAL
By: /s/
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Name:
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Title:
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THE BANK OF NEW YORK
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Vice President
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