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EXHIBIT 10.3
EXECUTION COPY
FIRST AMENDMENT TO
PROVISIONAL WAIVER AND STANDSTILL AGREEMENT
THIS FIRST AMENDMENT TO PROVISIONAL WAIVER AND STANDSTILL AGREEMENT
(this "First Amendment") is made and entered into as of the 14th day of August,
2001, by the Lenders party to the Credit Agreement identified below, FIRST UNION
NATIONAL BANK, as Administrative Agent for the Lenders (the "Administrative
Agent"), FLEET BANK, N.A., as documentation agent for the Lenders (the
"Documentation Agent"), KEYBANK NATIONAL ASSOCIATION, as co-agent (the
"Co-Agent"), THE XXXXXXXX GROUP, a Delaware corporation (the "Borrower") and
each of the Subsidiaries of the Borrower identified below.
Statement of Purpose
Pursuant to the Provisional Waiver and Standstill Agreement dated as of
May 14, 2001 (as amended, restated, supplemented or otherwise modified, the
"Waiver Agreement"), the Borrower, each of the Subsidiaries of the Borrower
identified therein, the Administrative Agent, the Documentation Agent, the
Co-Agent and the Lenders, each a party to the Credit Agreement dated as of
January 22, 1999 (as amended by that certain First Amendment to the Credit
Agreement dated as of June 11, 1999, that certain Second Amendment to the Credit
Agreement dated as of September 10, 1999, that certain Third Amendment to the
Credit Agreement dated as of January 7, 2000, that certain Fourth Amendment to
the Credit Agreement dated as of February 11, 2000, that certain Fifth Amendment
to the Credit Agreement dated as of July 31, 2000, that certain Sixth Amendment
to the Credit Agreement dated as of December 15, 2000, that certain Seventh
Amendment to the Credit Agreement dated as of February 28, 2001, and as further
amended, restated, supplemented or otherwise modified, the "Credit Agreement"),
agreed to waive the Acknowledged Defaults provisionally until August 14, 2001,
subject to the express terms and provisions of the Waiver Agreement.
The Borrower has requested that the Required Lenders continue to waive
through the Waiver Maturity Date (as defined below) the Acknowledged Defaults.
The Lenders, the Administrative Agent, the Documentation Agent and the
Co-Agent are willing to continue to waive the Acknowledged Defaults
provisionally for an additional period of time in respect of the Acknowledged
Defaults during such period subject to the express terms and provisions of this
First Amendment. This First Amendment shall be deemed to be one of the Credit
Documents under and pursuant to the Credit Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Effect of Amendment. Except as expressly amended hereby, the Waiver
Agreement, the Credit Agreement and each other Credit Document, shall be and
remain in full force and
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effect. The amendments granted in this First Amendment are specific and limited
and shall not constitute a modification, acceptance or waiver of any other
provision of the Waiver Agreement, the Credit Agreement, the other Credit
Documents or any other document or instrument entered into in connection
therewith, or a future modification, acceptance or waiver of the provisions set
forth therein. For avoidance of doubt, but in no way limiting the scope and
breadth of the previous sentences in this paragraph, each Credit Party hereby
reaffirms each of the acknowledgments and agreements made by it in Sections 1
(except as expressly amended in Paragraphs 3(b) and 3(c) below), 7 and 8 of the
Waiver Agreement as if each such acknowledgment and agreement was made as of the
date hereof.
2. Capitalized Terms. All capitalized undefined terms used in this
First Amendment shall have the meanings assigned thereto in the Waiver
Agreement.
3. Amendment of Waiver Agreement. The Waiver Agreement shall be hereby
amended as follows:
a. The Statement of Purpose shall hereby be amended by deleting the
third paragraph thereto and replacing it in its entirety with the following:
"The Borrower has requested that the Required Lenders waive
through the Waiver Maturity Date (as defined below) the Events of
Default which result, absent such waiver, solely from the Borrower's
non-compliance with Sections 7.1(a) and 7.2 of the Credit Agreement as
of March 31, 2001 and June 30, 2001 (the "Acknowledged Defaults")."
b. Section 1 shall hereby be amended by deleting paragraph 1(c) and
replacing it in its entirety with the following:
"(c) The Revolving Loans outstanding as of the date hereof are
in an amount equal to $26,300,000 (the "Existing Loans"). There are no
Term Loans outstanding as of the date hereof."
c. Section 1 shall hereby be further amended by deleting paragraph 1(d)
and replacing it in its entirety with the following:
"(d) The Letter of Credit Exposure of the Lenders outstanding
as of the date hereof is an in amount equal to $1,315,000 (the
"Existing L/C Exposure," and, collectively with the Existing Loans, the
"Existing Extensions of Credit")."
d. Section 2 shall hereby be amended by deleting Section 2 and
replacing it in its entirety with the following:
"Provisional Waiver and Limited Deferral. The Administrative
Agent, the Documentation Agent, the Co-Agent and each Lender
respectively agree to waive the Acknowledged Defaults provisionally,
effective as of March 31, 2001 and June 30, 2001, respectively, and to
defer the exercise of any rights or remedies arising by reason of the
Events of Default that have occurred solely as a result of the
occurrence of the
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Acknowledged Defaults until that date (as may be extended, the "Waiver
Maturity Date") which is the earliest to occur of: (a) September 15,
2001; (b) the date of the occurrence of any Event of Default other than
the Acknowledged Defaults; (c) the date on which any material provision
of the Credit Agreement or any other Credit Document shall for any
reason cease to be valid and binding on the Borrower or any other
Credit Party; (d) Credit Suisse First Boston's abandonment or
withdrawal from its commitments to the Borrower for a takeout facility
in the amount of at least $120,000,000 consisting of at least
$20,000,000 on the Revolving Loans and at least $100,000,000 on the
Term Loans (the "Qualified Takeout Facility"); (e) the closing of any
Qualified Takeout Facility; or (f) the date on which any breach of any
of the further conditions or agreements provided in the Waiver
Agreement as amended by this First Amendment shall occur, it being
agreed that the breach of any such further condition or agreement
shall, at the option of Required Lenders, by notice in writing from the
Administrative Agent (unless the Administrative Agent is prohibited by
applicable law from providing such notice) to the Borrower constitute a
Default and Event of Default under the Credit Agreement."
e. Section 3 shall hereby be amended by deleting paragraph 3(b) and
replacing it in its entirety with the following:
"(b) Notwithstanding paragraph 3(a) above, any obligation of
the Lenders to make additional Loans requested by the Borrower
(including the Revolving Loans) shall be at the sole and absolute
discretion of, and on terms and conditions satisfactory to, the
Administrative Agent and Required Lenders."
f. Section 3 shall hereby be further amended by deleting paragraph 3(d)
and replacing it in its entirety with the following:
"(d) From and after August 14, 2001, all LIBOR Loans shall
bear interest at a rate equal to the LIBOR Rate plus 5.50% and all Base
Rate Loans shall bear interest at a rate equal to the Base Rate plus
4.50%."
g. Section 4 shall hereby be amended by deleting subparagraph 4(b)(i)
in its entirety and replacing it with the following:
"(i) subject to receipt of a cash flow projection for the
Borrower and its Subsidiaries for at least a 3-month period beginning
August 14, 2001, which shall be attached hereto as Exhibit "A" and
which shall be in form and substance satisfactory to the Administrative
Agent and Required Lenders (the "New Cash Flow Projection"), commencing
on August 14, 2001 and thereafter no later than the second business day
following each bi-weekly period referenced in the New Cash Flow
Projection, (A) a subsequent cash flow projection in form and substance
satisfactory to the Administrative Agent and Required Lenders for the
Borrower and its Subsidiaries prepared on a rolling basis for at least
the next succeeding 3-month period (the "Cash Flow Projection") and (B)
a report in form and substance satisfactory to the Administrative Agent
and Required Lenders comparing actual cash flow for the bi-weekly
period referenced in the New Cash
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Flow Projection most recently ended to the projected cash flow for such
period set forth in the preceding Cash Flow Projection;"
h. Section 4 shall hereby be further amended by deleting subparagraph
4(b)(ii) in its entirety and replacing it with the following:
"(ii) commencing on August 31, 2001 for the month of July and
thereafter no later than the 15th calendar day of each subsequent
month, a financial report with narrative in the form and substance
satisfactory to the Administrative Agent and Required Lenders;"
i. Section 4 shall hereby be further amended by adding the following
clause (iv) to the end of paragraph 4(b):
"(iv) no later than Friday of each week commencing with August
17, 2001, a written report shall be delivered to the Administrative
Agent (A) summarizing the status of the Qualified Takeout Facility,
including without limitation, any commitments in respect of such
facility and (B) attaching copies of such commitments."
4. Conditions. The effectiveness of this First Amendment shall be
conditioned upon the following:
a. The following documents shall have been duly authorized and executed
by the parties thereto, shall be in full force and effect and no default shall
exist thereunder, and the Borrower shall have delivered original counterparts
thereof to the Agent:
(i) this First Amendment, duly executed and delivered by the
Credit Parties, the Administrative Agent, the Documentation Agent, the
Co-Agent, and the Lenders constituting Required Lenders;
(ii) a certificate of the secretary or assistant secretary of
each Credit Party certifying as to the incumbency and genuineness of
the signature of each officer of such Credit Party executing Credit
Documents to which it is a party and certifying that: (A) the
certificate or articles of incorporation of such Credit Party have not
been amended, modified or repealed since the date delivered to the
Administrative Agent, (B) the bylaws of such Credit Party have not been
amended, modified or repealed since the date delivered to the
Administrative Agent, (C) attached thereto is true, correct and
complete copy of resolutions duly adopted by the Board of Directors of
such Credit Party authorizing the execution and delivery of this First
Amendment, and (D) attached thereto is a true, correct and complete
copy of the certificate of good standing/existence of such Credit Party
under the laws of its jurisdiction of organization; and
(iii) such other documents, certificates and instruments as
the Administrative Agent reasonably requests.
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b. To the extent that the Borrower has received an invoice for such
fees and expenses, the Borrower shall have paid all outstanding professional
fees and expenses, as provided in the Credit Agreement, through the date of this
First Amendment.
c. Concurrently with the execution of this First Amendment, the
Borrower shall have paid to the Administrative Agent, for distribution to the
Lenders executing and delivering this First Amendment, on a pro rata basis
(based upon the ratio of the Commitment of each such consenting Lender to the
total Commitments of all such consenting Lenders), a fee in an amount equal to
12.50 basis points of the total Commitments of all such consenting Lenders.
5. Limited Effect of First Amendment. Except as expressly provided in
this First Amendment, the Credit Agreement, and each other Credit Document shall
continue to be, and shall remain, in full force and effect. This First Amendment
shall not be deemed or otherwise construed: (i) to be a waiver of, or consent to
or a modification or amendment of, any other term or condition of the Credit
Agreement or any other Credit Document; (ii) to prejudice any other right or
rights that the Administrative Agent, the Documentation Agent, the Co-Agent or
any Lender, or any of them, may now have or may have in the future under or in
connection with the Credit Agreement or any other Credit Document, as such
documents may be amended, restated or otherwise modified from time to time;
(iii) to be a commitment or any other undertaking or expression of any
willingness to engage in any further discussion with any Credit Party or any
other Person with respect to any waiver, amendment, modification or any other
change to the Credit Agreement or any other Credit Document or any rights or
remedies arising in favor of the Administrative Agent, the Documentation Agent,
the Co-Agent and the Lenders, or any of them, under or with respect to any such
documents; or (iv) to be a waiver of, or consent to or a modification or
amendment of, any other term or condition of any other agreement by and among
any Credit Party, on the one hand, and the Administrative Agent, the
Documentation Agent, the Co-Agent or any Lender, on the other hand. Neither the
requirements of good faith and fair dealing nor any other theory, concept or
argument shall require any Lender to impart upon any Credit Party any further or
greater benefits, to suffer any prejudice or impairment of any kind whatsoever,
or to tolerate any noncompliance with this First Amendment and any other Credit
Document, because each Lender has bargained for and given valuable consideration
for this First Amendment and the other Credit Documents and its creation of
express, explicit and objective limits of what benefits each Lender is willing
to provide to the Credit Parties, and what, in return, the Credit Parties are
required to provide to each Lender. This First Amendment and the other Credit
Documents provide a clear statement of each Lender's requirements and
obligations and creates an agreed upon standard of performance upon which each
Lender is entitled to rely in exercising and enforcing its respective remedies
under the Credit Documents.
6. Release. Each Credit Party, on behalf of itself and any Person
claiming by, through, or under such Credit Party (collectively, the "Credit
Party Group"), acknowledges that it has no claim, counterclaim, setoff, action
or cause of action of any kind or nature whatsoever ("Claims") against all or
any of the Administrative Agent, the Documentation Agent, the Co-Agent, the
Lenders or any of their respective directors, officers, employees, agents,
attorneys, financial advisors, accountants, legal representatives, successors
and assigns (the Administrative Agent, the Documentation Agent, the Co-Agent,
the Lenders and their respective directors, officers, employees, agents,
attorneys, financial advisors, accountants, legal representatives, successors
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and assigns are jointly and severally referred to as the "Lender Group"), that
directly or indirectly arise out of or are based upon or in any manner connected
with any "Prior Event" (as defined below), and each Credit Party, on behalf of
itself and all the other members of the Credit Party Group, hereby releases the
Lender Group from any liability whatsoever should any Claims nonetheless exist.
As used herein the term "Prior Event" means any transaction, event,
circumstances, action, failure to act or occurrence of any sort or type, whether
known or unknown, which occurred, existed, was taken, permitted or begun prior
to the execution of this First Amendment and occurred, existed, was taken,
permitted or begun in accordance with, pursuant to or by virtue of any terms of
this First Amendment, the transactions referred to herein, any Credit Document
or oral or written agreement relating to any of the foregoing, including without
limitation any approval or acceptance given or denied. This section shall
survive the termination of this First Amendment and shall remain in full force
and effect even if any of the conditions set forth in paragraphs 4(a)(ii)-(iii),
4(b) and 4(c) in the this First Amendment are not satisfied.
7. Representations and Warranties. By its execution hereof, each of the
Credit Parties hereby certifies that each of the representations and warranties
set forth in the Credit Agreement and the other Credit Documents in respect of
such Credit Party is true and correct as of the date hereof as if fully set
forth herein, (other than as a result of the occurrence of the Acknowledged
Defaults and except to the extent such representation or warranty is expressly
stated to have been made as of a specified date, in which case such
representation or warranty shall be true and correct as of such specified date),
and that as of the date hereof no Default or Event of Default (other than Events
of Default occurring as a result of the occurrence of the Acknowledged Defaults)
has occurred and is continuing. Additionally, each Credit Party represents and
warrants that since [March 31, 2001], no event which has had, or could
reasonably be expected to have, a material adverse effect has occurred, except
as previously disclosed in writing to the Administrative Agent.
8. Reversal of Payments. To the extent any Credit Party makes a payment
or payments to the Administrative Agent for the ratable benefit of Lenders
pursuant to the Waiver Agreement, as amended herein, the Revolving Notes or any
other Credit Document which payments or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
9. GOVERNING LAW; CONSENT TO JURISDICTION; ARBITRATION. THIS AGREEMENT
AND THE OTHER CREDIT DOCUMENTS HAVE BEEN EXECUTED, DELIVERED AND ACCEPTED IN,
AND SHALL BE DEEMED TO HAVE BEEN MADE IN, NORTH CAROLINA AND SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA (WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF); PROVIDED
THAT EACH LETTER OF CREDIT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OR RULES
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DESIGNATED IN SUCH LETTER OF CREDIT OR, IF NO SUCH LAWS OR RULES ARE DESIGNATED,
THE UNIFORM CUSTOMS AND PRACTICES FOR DOCUMENTARY CREDITS, INTERNATIONAL CHAMBER
OF COMMERCE, AS IN EFFECT FROM TIME TO TIME (THE "UNIFORM CUSTOMS"), OR, IN
RESPECT OF STANDBY LETTERS OF CREDIT, THE INTERNATIONAL STANDBY PRACTICE RULES
("ISP98"), AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS OR ISP98, THE
LAWS OF STATE OF NORTH CAROLINA (WITHOUT REGARD TO THE CONFLICTS OF LAW
PROVISIONS THEREOF). EACH CREDIT PARTY HEREBY CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF ANY STATE COURT WITHIN MECKLENBURG COUNTY, NORTH CAROLINA OR ANY
FEDERAL COURT LOCATED WITHIN THE WESTERN DISTRICT OF THE STATE OF NORTH CAROLINA
FOR ANY PROCEEDING INSTITUTED HEREUNDER OR UNDER ANY OF THE OTHER CREDIT
DOCUMENTS, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER CREDIT DOCUMENTS, OR ANY PROCEEDING TO WHICH THE ADMINISTRATIVE AGENT OR
ANY LENDER OR ANY CREDIT PARTY IS A PARTY, INCLUDING ANY ACTIONS BASED UPON,
ARISING OUT OF, OR IN CONNECTION WITH ANY COURSE OF CONDUCT, COURSE OF DEALING ,
STATEMENT (WHETHER ORAL OR WRITTEN) OR ACTIONS OR THE ADMINISTRATIVE AGENT OR
ANY LENDER OR ANY CREDIT PARTY. EACH CREDIT PARTY IRREVOCABLY AGREES TO BE BOUND
(SUBJECT TO ANY AVAILABLE RIGHT OF APPEAL) BY ANY JUDGMENT RENDERED OR RELIEF
GRANTED THEREBY AND FURTHER WAIVES ANY OBJECTION THAT IT MAY HAVE BASED ON LACK
OF JURISDICTION OR IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY
SUCH PROCEEDING. EACH CREDIT PARTY CONSENTS THAT ALL SERVICE OF PROCESS BE MADE
BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH IN THE
CREDIT AGREEMENT, AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE
EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE UNITED
STATES MAILS, PROPER POSTAGE PREPAID AND PROPERLY ADDRESSED. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER
TO BRING ANY ACTION OR PROCEEDING AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY
JURISDICTION. THE PROVISIONS OF SECTION 11.4 OF THE CREDIT AGREEMENT SHALL BE
APPLICABLE TO THIS FIRST AMENDMENT.
10. Headings. The captions in this First Amendment are for convenience
of reference only and shall not define or limit the provisions hereof.
11. Counterparts. This First Amendment may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this First Amendment, it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
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12. Entire Agreement, Etc. The Credit Documents and any other documents
executed in connection herewith or therewith express the entire understanding of
the parties with respect to the transactions contemplated hereby.
13. No Third Party Beneficiaries. This First Amendment does not and
shall not be construed to confer any rights or remedies upon any Person other
than the parties to this First Amendment and their respective successors and
permitted assigns.
14. Severability. The provisions of this First Amendment are severable
and if any one clause or provision hereof shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this First
Amendment in any jurisdiction.
15. Survival of Obligations. All covenants, agreements and other
obligations of the Credit Parties under this First Amendment which do not
terminate on the Waiver Maturity Date pursuant to their express terms shall
survive the occurrence of the Waiver Maturity Date and shall thereafter be
enforceable against the Credit Parties according to their terms.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed as of the date and year first above written.
BORROWER:
THE XXXXXXXX GROUP, a Delaware
corporation
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
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OTHER CREDIT PARTIES/GUARANTORS:
XXXXXXXX MEDIA GROUP, INC.
By: /s/
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Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
XXXXXXXX COMMUNICATIONS OF
MASSACHUSETTS, INC.
By: /s/
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Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
KVOS TV, LTD.
By: /s/
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Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
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CENTRAL NY NEWS, INC.
By: /s/
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Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
AK FLORIDA OUTDOOR, INC.
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
TC AVIATION, INC.
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
XXXXXXXX INTERACTIVE MEDIA, INC.
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
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XXXXXXXX BROADCASTING FRESNO, LLC
By: Xxxxxxxx Media Group, Inc.
Its: Sole Manager
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
AK MOBILE TELEVISION, INC.
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
XXXXXXXX VENTURES, INC.
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
SSI, INC.
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
FULL HOUSE SPORTS AND ENTERTAINMENT, INC.
By:
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
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XXXXXXXX SEATTLE STORM, INC.
By: /s/
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Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
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LENDERS:
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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FLEET BANK, N.A. as Documentation Agent
and Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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KEYBANK NATIONAL ASSOCIATION, as Co-Agent
and Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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US BANK NATIONAL ASSOCIATION, as Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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XXX XXXX XX XXXX XXXXXX, as Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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DRESDNER BANK AG, NEW YORK & GRAND CAYMAN
BRANCHES, as Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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WASHINGTON MUTUAL BANK, d/b/a WESTERN
BANK, as Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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BNP PARIBAS, as Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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CITIZENS BANK, as Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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COMPAGNIE FINANCIERE, f/k/a CREDIT
INDUSTRIEL ET COMMMERCIAL, as Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
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FIRST HAWAIIAN BANK, as Lender
By: /s/
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Name:
--------------------------------
Title:
-------------------------------
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NATEXIS BANQUE POPULAIRES, as Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
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MICHIGAN NATIONAL BANK, as Lender
By: /s/
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Name:
--------------------------------
Title:
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THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as Lender
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
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EXECUTION COPY
EXHIBIT A
FORM OF CASH FLOW PROJECTION REPORT
