Exhibit 10.45
December 21, 2000
NOVA Corporation
NOVA Information Systems, Inc.
Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
Re: $50,000,000 Revolving Credit Facility
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Ladies and Gentlemen:
BANK OF AMERICA, N.A., as Administrative Agent (the "Administrative Agent") and
the lenders from time to time party hereto (the "Lenders") are pleased to make
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available to NOVA Corporation, a Georgia corporation ("NOVA") and NOVA
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Information Systems, Inc., a Georgia corporation ("NIS"; each of NOVA and NIS,
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individually, a "Borrower" and collectively, the "Borrowers"), a revolving
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credit facility on the terms and subject to the conditions set forth below.
Terms not defined herein have the meanings assigned to them in Exhibit A hereto.
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1. The Facility.
(a) The Commitment. Subject to the terms and conditions set forth herein,
the Lenders agree to make available to the Borrowers until the
Maturity Date a revolving credit facility providing for loans
("Loans") in an aggregate principal amount not exceeding at any time
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$50,000,000 (the "Commitment") in an amount equal to each Lender's
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Commitment Percentage as set forth on Schedule 1.1(a). Within the
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foregoing limit, the Borrowers may borrow, repay and reborrow Loans
until the Maturity Date.
(b) Borrowings, Conversions, Continuations. Each of the Borrowers may
request that Loans be (i) made as or converted to Base Rate Loans by
irrevocable notice to be received by the Administrative Agent not
later than 2 p.m. (Charlotte time) on the Business Day of the
borrowing or conversion, or (ii) made or continued as, or converted
to, Eurodollar Rate Loans by irrevocable notice to be received by the
Administrative Agent not later than 2 p.m. (Charlotte time) three
Business Days prior to the Business Day of the borrowing, continuation
or conversion. In each case, the Administrative Agent shall promptly
give notice of each borrowing request to each Lender by telecopier.
If the Borrowers fail to give a notice of conversion or continuation
prior to the end of any Interest Period in respect of any Eurodollar
Rate Loan, the Borrowers shall be deemed to have requested that such
Loan be converted to a Base Rate Loan on the last day of the
applicable Interest Period. Notices pursuant to this Paragraph 1(b)
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may be given by telephone if promptly confirmed in writing.
Each Eurodollar Rate Loan shall be in a principal amount of $1,000,000
or a whole multiple of $500,000 in excess thereof. Each Base Rate
Loan shall be in a minimum principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. There shall not be more than
5 different Interest Periods in effect at any time.
(c) Funding Mechanics. Each Lender shall, before 3:30 p.m. (Charlotte
time) on the date of such borrowing, make available to the
Administrative Agent at its address referred to in Schedule 1.1(a), in
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immediately available funds, such Lender's ratable portion of such
borrowings. Promptly after the Administrative Agent's receipt of such
fund and upon fulfillment of the applicable conditions set forth in
Paragraph 2, the Administrative Agent will make such funds available
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to the Borrowers by depositing the same in an account of
the Borrowers maintained with the Administrative Agent and designated
by the Borrowers in the relevant notice of borrowing.
Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any borrowing that such Lender will not
make such funds available, the Administrative Agent may assume that
such Lender has made such portion available to the Administrative
Agent on the date of such borrowing in accordance with the terms
hereof and the Administrative Agent may, in reliance upon such
assumption make available to the Borrowers on such date a
corresponding amount. If and to the extent that such Lender shall not
have made its ratable portion available to the Administrative Agent,
such Lender and the Borrowers severally agree to repay to the
Administrative Agent forthwith on demand (provided, that such demand
shall be first made to such Lender prior to such demand being made to
the Borrowers) such corresponding amount together with interest
thereon, for each day from the date such amount is made available to
the Borrowers until the date such amount is repaid to the
Administrative Agent at (i) in the case of the Borrowers, the interest
rate otherwise applicable to Loans and (ii) in the case of a Lender
the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Lender's portion of the Loan so requested (and
such Loan shall be deemed to have been made by such Lender on the date
when such amount is repaid to the Administrative Agent). The failure
of any Lender to make its portion of a Loan shall not relieve any
other Lender of its obligation hereunder to make its portion of a
Loan, but no Lender shall be responsible for the failure of any other
Lender to make its portion of any Loan. Nothing in the Paragraph 1(c)
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shall be deemed to relieve any Lender from its obligation to fulfill
its Commitment hereunder or to prejudice any rights the Borrowers may
have against such Lender as a result of such Lender's failure to
fulfill such Commitment hereunder.
(d) Interest. At the option of the Borrowers, Loans shall bear interest
at a rate per annum equal to (A) from the date hereof through the
first Calculation Date under the Incorporated Agreement to occur with
respect to the Borrowers' fiscal quarter ending December 31, 2000, (i)
the Eurodollar Rate plus 1.25% or (ii) the Base Rate and (B) on and
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after the first Calculation Date under the Incorporated Agreement to
occur with respect to the Borrowers' fiscal quarter ending December
31, 2000, (i) the Applicable Percentage for Eurodollar Loans as then
determined under the Incorporated Agreement plus 0.25% or (ii) the
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Applicable Percentage for Base Rate Loans as then determined under the
Incorporated Agreement plus 0.25%. Interest on Base Rate Loans shall
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be calculated on the basis of a year of 365 or 366 days and actual
days elapsed. All other interest hereunder shall be calculated on the
basis of a year of 360 days and actual days elapsed.
The Borrowers promise to pay interest (i) for each Eurodollar Rate
Loan, (A) on the last day of the applicable Interest Period, and (B)
on the date of any conversion of such Loan to a Base Rate Loan; (ii)
for Base Rate Loans, on the last Business Day of each calendar month;
and (iii) for all Loans, on the Maturity Date. If the time for any
payment is extended by operation of law or otherwise, interest shall
continue to accrue for such extended period.
After the date any principal amount of any Loan is due and payable
(whether on the Maturity Date, upon acceleration or otherwise), or
after any other monetary obligation hereunder shall have become due
and payable, the Borrower shall pay, but only to the extent permitted
by law, interest (after as well as before judgment) on such amounts at
a rate per annum equal to the Base Rate plus 2%. Such interest shall
be payable on demand.
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In no case shall interest hereunder exceed the amount that a Lender
may charge or collect under applicable law.
(e) Evidence of Loans. The Loans and all payments and obligations
hereunder shall be evidenced by each Lender's loan accounts and
records and the Notes, substantially in the form of Exhibit B. Each
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Lender's loan accounts and records shall be conclusive absent manifest
error of the amount of the Loans and payments thereon. Any failure to
record any Loan or payment thereon or any error in doing so shall not
limit or otherwise affect the obligation of the Borrowers to pay any
amount owing with respect to the Loans.
(e) Unused Fee. The Borrowers promise to pay to the Administrative Agent,
for the account of each Lender, a commitment fee of (i) from the date
hereof through the first Calculation Date under the Incorporated
Agreement to occur with respect to the Borrowers' fiscal quarter
ending December 31, 2000, 0.30% per annum on the actual daily unused
portion of the Commitment and (ii) on and after the first Calculation
Date under the Incorporated Agreement to occur with respect to the
Borrowers' fiscal quarter ending December 31, 2000 plus 0.05%, payable
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in arrears on the last Business Day of each calendar quarter and on
the Maturity Date, and calculated on the basis of a year of 360 days
and actual days elapsed.
(f) Repayment. The Borrowers promise to pay all Loans then outstanding on
the Maturity Date. The obligations of the Borrowers, as Borrowers,
are several and not joint obligations of each of the Borrowers.
(g) Prepayments. The Borrowers may prepay Loans in accordance with and
subject to the provisions of Section 3.3(a) the Incorporated
Agreement.
(h) Commitment Reductions. The Borrowers may, upon five Business Days'
notice, reduce or cancel the undrawn portion of the Commitment,
provided, that the amount of such reduction is not less than
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$5,000,000 or a whole multiple of $1,000,000 in excess thereof.
2. Conditions Precedent to Loans.
(a) Conditions Precedent to Initial Loan. As a condition precedent to the
initial Loan hereunder, the Administrative Agent must receive the
following from the Borrowers in form satisfactory to the
Administrative Agent:
(i) three original duplicates of this Agreement duly executed and
delivered on behalf of the Borrowers, the Guarantors, the
Lenders and the Administrative Agent;
(ii) appropriate authorizing resolutions for the Borrowers and the
Guarantors;
(iii) such other documents and certificates (including a legal
opinion) as the Administrative Agent may reasonably request;
(iv) payment of the agreed-upon upfront fees and reasonable legal
fees and expenses of counsel to the Administrative Agent; and
(v) the Notes duly executed and delivered by each of the Borrowers.
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(b) Conditions to Each Borrowing, Continuation and Conversion. As a
condition precedent to each borrowing (including the initial
borrowing), conversion and continuation of any Loan:
(i) The Borrowers must furnish the Administrative Agent with, as
appropriate, a notice of borrowing, conversion or continuation;
(ii) each representation and warranty set forth in Paragraph 3 below
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shall be true and correct in all material respects as if made on
the date of such borrowing, continuation or conversion; and
(iii) no Default or Event of Default shall have occurred and be
continuing on the date of such borrowing, continuation or
conversion.
Each notice of borrowing and notice of conversion or continuation
shall be deemed a representation and warranty by the Borrowers that
the conditions referred to in clauses (ii) and (iii) above have been
met.
3. Representations and Warranties. The Borrowers and the Guarantors hereby
agree that the representations and warranties contained in Section 6 of the
Incorporated Agreement and any and all Additional Incorporated Agreement
Representations (collectively, the "Incorporated Representations") are
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hereby incorporated by reference and shall be as binding on the Borrowers
and the Guarantors as if fully set forth herein.
4. Covenants. So long as principal of and interest on any Loan or any other
amount payable hereunder or under any other Loan Document remains unpaid or
unsatisfied and the Commitment has not been terminated, the Borrowers and
the Guarantors hereby agree that the covenants and agreements applicable to
them contained in Section 7 (Affirmative Covenants) and Section 8 (Negative
Covenants) of the Incorporated Agreement, including for purposes of this
Paragraph 4 each Additional Incorporated Agreement Covenant (collectively,
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the "Incorporated Covenants), are hereby incorporated by reference and
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shall be as binding on the Borrowers and the Guarantors as if fully set
forth herein.
Any financial statements, certificates or other documents received by the
Administrative Agent under the Incorporated Agreement shall be deemed
delivered hereunder.
5. Events of Default. The following are "Events of Default:"
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(a) Any Borrower fails to pay any principal of any Loan as and on the date
when due; or
(b) Any Borrower fails to pay any interest on any Loan, or any commitment
fee due hereunder, or any portion thereof, within three days after the
date when due; or any Borrower fails to pay any other fee or amount
payable to the Administrative Agent to any Lender under any Loan
Document, or any portion thereof, within five days after the date due;
or
(c) Any Borrower fails to comply with any covenant or agreement
incorporated herein by reference pursuant to Paragraph 4 above,
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subject to any applicable grace period and/or notice requirement set
forth in Section 9 of the Incorporated Agreement (it being understood
and agreed that any such notice requirement shall be met by the
Administrative Agent's or any Lender's giving the applicable notice to
such Borrower hereunder); or
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(d) Any representation or warranty in any Loan Document or in any
certificate, agreement, instrument or other document made or delivered
by any Borrower pursuant to or in connection with any Loan Document
proves to have been incorrect when made or deemed made; or
(e) Any "Event of Default" specified in Section 9 of the Incorporated
Agreement, including for purposes of this Paragraph 5(e) each
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Additional Incorporated Agreement Event of Default (collectively, the
"Incorporated Events of Default") occurs and is continuing, without
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giving effect to any waiver or amendment thereof pursuant to the
Incorporated Agreement, it being agreed that each such "Event of
Default" shall survive any termination, cancellation, discharge or
replacement of the Incorporated Agreement.
Upon the occurrence of an Event of Default, the Required Lenders may
declare the Commitment to be terminated, whereupon the Commitment shall be
terminated, and/or declare all sums outstanding hereunder and under the
other Loan Documents, including all interest thereon, to be immediately due
and payable, whereupon the same shall become and be immediately due and
payable, without notice of default, presentment or demand for payment,
protest or notice of nonpayment or dishonor, or other notices or demands of
any kind or character, all of which are hereby expressly waived; provided,
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however, that upon the occurrence of any event specified in Sections 9.1(e)
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or 9.1(i) of the Incorporated Agreement, the Commitment shall automatically
terminate, and all sums outstanding hereunder and under each other Loan
Document, including all interest thereon, shall become and be immediately
due and payable, without notice of default, presentment or demand for
payment, protest or notice of nonpayment or dishonor, or other notices or
demands of any kind or character, all of which are hereby expressly waived.
6. Guaranty. The Guarantors hereby agree that the Guaranty contained in
Section 4 of the Incorporated Agreement (the "Incorporated Guaranty") is
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incorporated by reference and shall be as binding on the Guarantors as if
set forth fully herein; provided, however, as incorporated herein "Credit
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Party Obligations" means (i) as to either NOVA or NIS, without duplication,
(a) all obligations of the other Borrower to a Lender, whenever arising,
under this Agreement, (including, but not limited to, any interest accruing
after the occurrence of a Bankruptcy Event with respect to any Credit
Party, regardless of whether such interest is an allowed claim under the
Bankruptcy Code), and (b) all liabilities and obligations, whenever
arising, owing from the other Borrower to a Lender, or any Affiliate of a
Lender, arising under any Hedging Agreement relating to the Loans hereunder
and (ii) as to each other Guarantor, without duplication, (a) all
obligations of any of the Borrowers to a Lender, whenever arising, under
this Agreement (including, but not limited to, any interest accruing after
the occurrence of a Bankruptcy Event with respect to any Credit Party,
regardless of whether such interest is an allowed claim under the
Bankruptcy Code), and (b) all liabilities and obligations, whenever
arising, owing from any of the Borrowers to a Lender, or any Affiliate of a
Lender, arising under any Hedging Agreement relating to the Loans
hereunder.
7. Other Provisions Relating to the Loans; Miscellaneous. The parties hereto
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hereby agree that the provisions set forth in Sections 3.6, 3.7, 3.8, 3.9,
3.10, 3.11, 3.12, 3.13, 3.14, 3.15, 10 and 11 of the Incorporated Agreement
(the "Additional Incorporated Provisions") are incorporated by reference
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(with such adjustments or modifications as necessary to maintain the
substance of the provisions contained therein) and shall be binding on the
parties hereto as if set forth fully herein. The incorporation by
reference to the Incorporated Agreement of the Incorporated
Representations, the Incorporated Covenants, the Incorporated Events of
Default, the Incorporated Guaranty, the Additional Incorporated Provisions
and the Incorporated Definitions shall survive the termination of the
Incorporated Agreement. The Incorporated Representations, the Incorporated
Covenants, the Incorporated Events of Default, the Incorporated Guaranty,
the Additional Incorporated Provisions and the Incorporated Definitions
(including all exhibits,
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schedules and defined terms referred to therein) are hereby (or, in the
case of each Additional Incorporated Agreement Representations, the
Additional Incorporated Agreement Covenants and the Additional Incorporated
Events of Default, shall, upon its effectiveness, be) incorporated herein
by reference as if set forth in full herein with appropriate substitutions,
including the following: (a) all references to "this Credit Agreement"
shall be deemed to be references to this Agreement; (b) all references to
"the Administrative Agent" shall be deemed to references to the
Administrative Agent, (c) all references to a "Lender" or the "Lenders"
shall be deemed to be references to a Lender or the Lenders, as applicable,
(d) all references to the "Required Lenders" shall be deemed to be
references to the Required Lenders; (e) all references to "Default" and
"Event of Default" shall be deemed to be references to a Default and an
Event of Default, respectively; (f) all references to "Revolving Loans"
shall be deemed to be references to the Loans; and (g) all references as to
"Credit Document" or "Credit Documents" or any similar reference shall be
deemed refer to this Agreement as well as the other Loan Documents.
Please indicate your acceptance of the Commitment on the foregoing terms and
conditions by returning an executed copy of this Agreement to the undersigned
not later than December __, 2000.
ADMINISTRATIVE AGENT
AND LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a Lender
and in its capacity as Administrative Agent
By: /s/ Xxxxxxx X. XxXxxxxx
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Name: Xxxxxxx X. XxXxxxxx
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Title: Managing Director
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SUNTRUST BANK, ATLANTA,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Managing Director
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Accepted and Agreed to as of the date first written above:
BORROWERS
AND GUARANTORS: NOVA CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
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Title: Executive Vice President and CFO
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NOVA INFORMATION SYSTEMS, INC.
By: /s/ Xxxxxx Xxxx Xxxxxxxxx
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Name: Xxxxxx Xxxx Xxxxxxxxx
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Title: Senior Vice President and CFO
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GUARANTORS:
LADCO FINANCIAL GROUP,
a California corporation
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Vice President
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NOVA ASSET MANAGEMENT CO.,
a Delaware corporation
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: President
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NOVA GEORGIA SERVICES, L.P.,
a Delaware limited partnership
By: /s/ Xxxxxx Xxxx Xxxxxxxxx
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Name: Xxxxxx Xxxx Xxxxxxxxx
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Title: Senior Vice President and CFO
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NOVA GA. COMMAND, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: President
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NOVA INFORMATION SERVICES COMPANY,
a Georgia corporation
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: President
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NOVA LICENSING CO.,
a Delaware corporation
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: President
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NOVA TN. COMMAND, INC.,
a Tennessee corporation
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: President
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PMT SERVICES, INC.,
a Tennessee corporation
By: /S/ Xxxxxx Xxxx Xxxxxxxxx
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Name: Xxxxxx Xxxx Xxxxxxxxx
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Title: Senior Vice President and CFO
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EXHIBIT A
DEFINITIONS
The parties hereto hereby agree that all capitalized terms not otherwise defined
herein shall have the respective meanings assigned to such terms in the
Incorporated Agreement, as in effect as of the date hereof (the "Incorporated
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Definitions") and such Incorporated Definitions are hereby incorporated by
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reference and shall be as binding on the parties as if set forth fully herein.
Additional Incorporated A covenant or agreement that is added to Section 7 (Affirmative Covenants)
Agreement Covenant: Section 8 (Negative Covenants) of the Incorporated Agreement after the date
hereof, as such covenant or agreement is in effect on the date so added,
without giving effect to any subsequent amendment or other modification
thereof.
Additional Incorporated An "Event of Default" that is added to Section 9 of the Incorporated
Agreement Event of Agreement after the date hereof, as such "Event of Default" is in effect on
Default: the date so added, without giving effect to any subsequent amendment or
other modification thereof.
Additional Incorporated A representation or warranty that is added to Section 6 of the Incorporated
Agreement Representation Agreement after the date hereof, as such representation of warranty is in
effect on the date so added, without giving effect to any subsequent
amendment or other modification thereof.
Administrative Agent Bank of America, N.A. (or any successor thereto)
Agreement: This letter agreement, as amended, restated, extended, supplemented or
otherwise modified in writing from time to time.
Default: Any event that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
Event of Default: Has the meaning set forth in Paragraph 5.
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Incorporated Agreement: The Credit Agreement, dated as of November 16, 1999 among the Borrowers, the
guarantors party thereto, the lenders party thereto and Bank of America,
N.A., as Administrative Agent for the Lenders. Unless otherwise specified
herein, all references to the Incorporated Agreement shall mean the
Incorporated Agreement as in effect on the date hereof, without giving
effect to any amendment, supplement or other modification thereto or thereof
after the date hereof.
Interest Period "Interest Period" as such term is defined in the Incorporated Agreement,
except that, as used herein, such term shall only refer to an Interest
Period with a duration of one (1) month.
Loan Documents: This Agreement, and each promissory note, certificate, fee letter, and other
instrument, document or agreement delivered in connection with this
Agreement.
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Maturity Date: The earlier of (i) April 30, 2001 or (ii) (a) the effective date of a new
364-day credit facility to be entered into by the Borrowers, the Guarantors,
certain lenders party thereto and Bank of America, N.A., as Agent or (b) the
effective date of a privately placed tranche of debt in the aggregate amount
of at least $100,000,000, in each case, the proceeds of which shall be used
to refinance all outstanding Loans under this Agreement.
Notes: The promissory notes of the Borrowers payable to each Lender in the amount
of such Lender's portion of the Commitment, substantially in the form of
Exhibit B.
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Required Lenders: (i) At any time prior to the termination of the Commitment, Lenders holding
100% of the total Commitment and (ii) at any time after the termination of
the Commitment, Lenders holding 100% of the principal balance of the
outstanding Loans.
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EXHIBIT B
FORM OF PROMISSORY NOTE
December 21, 2000
FOR VALUE RECEIVED, [NOVA Corporation] [NOVA Information Systems,
Inc.], a Georgia corporation (the "Borrower") hereby promises to pay, to the
order of _____________________, its successors and assigns (the "Lender"), at
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the office of Bank of America, N.A., as Administrative Agent (the "Agent"), as
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set forth in that certain Letter Loan Agreement dated as of December __, 2000
among the Borrower, the other Credit Parties party thereto, the Lenders named
therein (including the Lender) and the Agent (as it may be amended, modified,
extended or restated from time to time, the "Loan Agreement"; all capitalized
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terms not otherwise defined herein shall have the meanings set forth in the Loan
Agreement), but in no event later than the Maturity Date, in Dollars and in
immediately available funds, the aggregate unpaid principal amount of all Loans
made by the Lender to the Borrower pursuant to the Loan Agreement, and to pay
interest from the date hereof on the unpaid principal amount hereof, in like
money, at said office, on the dates and at the rates selected in accordance with
the Loan Agreement.
Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in the Loan
Agreement. Further, in the event the payment of all sums due hereunder is
accelerated under the terms of the Loan Agreement, this Note, and all other
indebtedness of the Borrower to the Lender shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees
actually incurred.
This Note and the Loans evidenced hereby may be transferred in whole
or in part only by registration of such transfer on the Register maintained by
or on behalf of the Borrower as provided in the Loan Agreement.
THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
[BORROWER],
a Georgia corporation
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
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Title: Executive Vice President and CFO
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Schedule 1.1(a)
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Lender's Lending Addresses
and Commitment Percentages
Commitment
Percentage
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Bank of America, N.A. 50%
Credit Services
000 X. Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SunTrust Bank Atlanta 50%
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