Exhibit 10.40
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Amendment") is dated as
of May 9, 2006, among:
XXXXXX CORPORATION, a Delaware corporation (hereinafter referred to as
the "Borrower");
THE LENDERS PARTY HERETO; and
THE BANK OF NEW YORK, as administrative agent for the Lenders referred
to below (in such capacity, the "Administrative Agent").
RECITALS
A. The Borrower, the Lenders party thereto (the "Lenders"), and The
Bank of New York, as Issuing Lender, Swingline Lender and Administrative Agent
have entered into a Credit Agreement, dated as of October 29, 2004 (as amended
pursuant to a certain Amendment No. 1 and Consent dated, as of July 1, 2005, and
as in effect on the date hereof, the "Credit Agreement").
B. The Borrower has requested that the Lenders agree to amend the
Credit Agreement, among other terms, to (a) increase the Revolving Commitments,
(b) amend the definition of "Consolidated EBITDA", (c) extend the Revolving
Commitment Termination Date, (d) increase aggregate amount of consideration
which the Borrower is permitted to pay for acquisitions under Section 7.04(e),
(e) permit the Borrower to make the Iwatsu Acquisition (hereinafter defined),
(f) permit the Borrower to make certain Restricted Payments for cash dividends
and repurchases of common stock and (g) exclude each of XxXxxx GmbH, XxXxxx
S.R.L., XxXxxx Japan Corporation, XxXxxx Singapore Pte Ltd., XxXxxx Korea Ltd.,
XxXxxx S.A.R.L., XxXxxx XX, XxXxxx Hong Kong Ltd. and XxXxxx Ltd. from the
definition of "Material Foreign Subsidiary" for the period from June 30, 2005
through June 29, 2006.
NOW, THEREFORE, in consideration of the agreements and provisions
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein that are defined in the
Credit Agreement and not otherwise defined herein shall have the meanings
ascribed thereto therein.
2. AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended, as follows:
2.1 Section 1.01 (Defined Terms) of the Credit Agreement is hereby
amended to add the following defined terms in appropriate alphabetical order:
"Acquisition" means the acquisition or purchase in one
transaction or a series of transactions (including pursuant to any
merger) of any assets (including tangible and intangible assets,
including distribution rights and Intellectual Property) of any
Person, including, without limitation, business units and divisions of
any Person or any group of assets (whether or not constituting a
business unit or division) but excluding (a) the purchase of inventory
in the ordinary course of business and (b) the purchase of other
assets the expenditure for which would be accounted for as a Capital
Expenditure.
"Amendment No. 2" means Amendment No. 2 to Credit Agreement,
dated as of May 9, 2006.
"Intellectual Property" means all patents, trademarks,
service marks, trade names, copyrights, trade secrets, know-how,
licenses, information and other proprietary rights and processes and
intellectual property, including without limitation the following:
(a) Any and all copyright rights, copyright applications,
copyright registrations and like protections in each work of
authorship and derivative work thereof domestic or foreign, whether
published or unpublished, statutory or common law;
(b) Any and all trade secrets;
(c) Any and all design rights;
(d) Any and all know-how, including manufacturing know-how,
materials and processes know-how, design know-how (including design
databases and circuit files), technical information and data,
operating and business procedures, work instructions and similar
information;
(e) All patents, patent applications and like protections
both domestic and foreign, including, without limitation,
improvements, divisions, continuations, renewals, reissues, extensions
and continuations-in-part of the same;
(f) Any trademark and servicemark rights, whether registered
or not, and whether state, common law, federal or foreign,
applications to register and registrations of the same and like
protections, and all goodwill as connected with and symbolized by such
trademarks;
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(h) All licenses or other rights, to the extent a security
interest may be granted therein, to use any of the items listed above,
and all license fees and royalties arising from such use to the extent
permitted by such license or rights.
"Iwatsu Acquisition" means the purchase by the Borrower of
certain assets pursuant to the Iwatsu Purchase Agreement.
"Iwatsu Purchase Agreement" means, collectively, the Final
Settlement and Purchase Agreement (Distribution Rights and
Amplification Assets), dated as of March 22, 2006, by and between
Iwatsu Test Instrument Corp., Iwatsu Electric Company, Ltd. and the
Borrower and the Final Settlement and Purchase Agreement (Viewgo
Assets), dated as of March 22, 2006, by and between Iwatsu Test
Instrument Corp., Iwatsu Electric Company and the Borrower.
2.2 Section 1.01 (Defined Terms) of the Credit Agreement is
hereby amended by deleting in its entirety the text of the definition of
"Applicable Margin" and substituting therefor the following:
"Applicable Margin" means, at all times during the applicable
periods set forth below: (a) with respect to ABR Borrowings and
Swingline Loans, the percentage set forth below under the heading "ABR
Margin" and adjacent to such period, (b) with respect to Eurodollar
Borrowings, the percentage set forth below under the heading
"Eurodollar Margin" and adjacent to such period, (c) with respect to
the Commitment Fee payable under Section 3.03(b), the percentage set
forth below under the heading "Commitment Fee" and adjacent to such
period and (d) with respect to the Letter of Credit Fee payable under
Section 3.03(c), the percentage set forth below under the heading
"Letter of Credit Fee" and adjacent to such period:
----------------------- ----------------- --------------- ---------------- ---------------- --------------
WHEN THE LEVERAGE
RATIO IS GREATER THAN EURODOLLAR LETTER OF
OR EQUAL TO AND LESS THAN ABR MARGIN MARGIN COMMITMENT FEE CREDIT FEE
----------------------- ----------------- --------------- ---------------- ---------------- --------------
3.00:1.00 1.125% 2.375% 0.350% 2.375%
----------------------- ----------------- --------------- ---------------- ---------------- --------------
2.50:1.00 3.00:1.00 0.750% 2.000% 0.350% 2.000%
----------------------- ----------------- --------------- ---------------- ---------------- --------------
2.00:1.00 2.50:1.00 0.500% 1.750% 0.300% 1.750%
----------------------- ----------------- --------------- ---------------- ---------------- --------------
1.50:1.00 2.00:1.00 0.250% 1.500% 0.275% 1.500%
----------------------- ----------------- --------------- ---------------- ---------------- --------------
1.00:1.00 1.50:1.00 0.000% 1.250% 0.225% 1.250%
----------------------- ----------------- --------------- ---------------- ---------------- --------------
1.00:1.00 0.000% 1.000% 0.200% 1.000%
----------------------- ----------------- --------------- ---------------- ---------------- --------------
Changes in the Applicable Margin resulting from a change in the
Leverage Ratio shall be based upon the certificate most recently
delivered under Section 6.01(e) (each, a "compliance certificate") and
shall become effective on the fifth day following receipt by the
Administrative Agent of such certificate (or if such fifth day is not a
Business Day, on the immediately preceding Business Day).
Notwithstanding anything to the contrary in this definition, if the
Borrower shall fail to deliver to the Administrative Agent any
compliance certificate on or prior to any date required hereby, the
Leverage Ratio shall be deemed to be 3.0:1.0 from and including such
date to the date of delivery to the Administrative Agent of such
compliance certificate.
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2.3 Section 1.01 (Defined Terms) of the Credit Agreement is
hereby amended by deleting in its entirety the definition of Consolidated
EBITDA and substituting therefor the following:
"Consolidated EBITDA" means, for any period, net operating
income of the Borrower and the Subsidiaries, determined on a
consolidated basis in accordance with GAAP for such period plus (a) the
sum of, without duplication, each of the following of the Borrower and
the Subsidiaries on a consolidated basis in accordance with GAAP, each
to the extent utilized in determining net operating income for such
period (i) depreciation, amortization and other non cash charges
(whether or not such non cash charges are recurring), (ii)
extraordinary losses from sales, exchanges and other dispositions of
property not in the ordinary course of business, (iii) with respect to
the fiscal quarters ending March 31, 2005, June 30, 2005, September 30,
2005, and December 31, 2005, the Tektronix Settlement Payment, and (iv)
with respect to the fiscal quarters ending March 31, 2006, June 30,
2006, September 30, 2006 and December 31, 2006, the sum of $2,800,000,
representing the portion of the consideration paid by the Borrower for
the Iwatsu Acquisition which is required to be accounted for as an
expense minus (b) the sum of, without duplication, each of the
following with respect to the Borrower and the Subsidiaries on a
consolidated basis in accordance with GAAP, to the extent utilized in
determining such net operating income for such period: (1)
extraordinary gains from sales, exchanges and other dispositions of
property not in the ordinary course of business, and (2) other non
recurring gains."
2.4 Section 1.01 (Defined Terms) of the Credit Agreement is
hereby amended by deleting in its entirety the text of the definition of
"Revolving Commitment Termination Date" and substituting therefor the
following:
"Revolving Commitment Termination Date" means
October 29, 2010.
2.5 Section 1.01 (Defined Terms) of the Credit Agreement is
hereby amended by deleting in its entirety the text of the definition of
"Material Foreign Subsidiary" and substituting the following therefor:
"Material Foreign Subsidiary" means each direct or indirect
Foreign Subsidiary as to which any of the following tests are or have
at any time been met: (a) the Borrower's and the other Subsidiaries'
investments in and advances to such
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Foreign Subsidiary is greater than or equal to 10% of the total assets
of the Borrower and its Subsidiaries on a consolidated basis as of the
last day of the most recently completed fiscal year of the Borrower,
(b) such Foreign Subsidiary's proportionate share of the total assets
(after intercompany eliminations) of the Borrower and its Subsidiaries
on a consolidated basis is greater than or equal to 10% of the total
assets of the Borrower and the Subsidiaries on a consolidated basis as
of the last day of the most recently completed fiscal year of the
Borrower, or (c) the income from continuing operations before income
taxes, extraordinary items and the cumulative effect of a change in
accounting principles of such Foreign Subsidiary is greater than or
equal to 10% of such income of the Borrower and its Subsidiaries on a
consolidated basis as of the last day of the most recently completed
fiscal year of the Borrower; provided, however, that regardless of
whether any of XxXxxx GmbH, XxXxxx S.R.L., XxXxxx Japan Corporation,
XxXxxx Singapore Pte Ltd., XxXxxx Korea Ltd., XxXxxx S.A.R.L., XxXxxx
XX, XxXxxx Hong Kong Ltd. or XxXxxx Ltd. (collectively, the "Excluded
Subsidiaries") would otherwise meet the foregoing definition of
"Material Foreign Subsidiary" during the period commencing June 30,
2005 through June 29, 2006, none of the Excluded Subsidiaries shall be
deemed to be a "Material Foreign Subsidiary" during such period."
2.6 Schedule 2.01 of the Credit Agreement is hereby amended
by deleting such Schedule in its entirety and substituting therefor
Schedule 2.01 (Revised) annexed to this Amendment.
2.7 Section 7.04 (Investments, Loans, Advances, Guarantees
and Acquisitions) of the Credit Agreement is hereby amended by deleting in
its entirety the text of Section 7.04(e) and substituting therefor the
following:
"(e) Acquisitions (whether by purchase of stock or assets,
merger or consolidation) by the Borrower and/or its Subsidiaries not
otherwise permitted by this Section, provided that:
(i) at least one year has elapsed since the Effective
Date;
(ii) such Acquisition shall be within the same industry
and line of business as that conducted by, or contemplated to be
conducted by, the Borrower and/or the Subsidiaries on the Effective
Date;
(iii) (1) if immediately prior to and after giving
effect to such Acquisition, the Leverage Ratio is less than 2.00:1.00,
the aggregate consideration paid by the Borrower and/or the
Subsidiaries in connection with all Acquisitions with (A) borrowed
money and/or internally generated funds shall not exceed $40,000,000,
and (B) borrowed money, internally generated funds and/or equity
contributions shall not exceed $60,000,000;
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(2) if immediately prior to and after giving effect
to such Acquisition, the Leverage Ratio is equal to or greater than
2.00:1.00 and less than 2.35:1.00, the aggregate consideration paid by
the Borrower and/or the Subsidiaries in connection with all
Acquisitions, with (A) borrowed money and/or internally generated
funds shall not exceed $25,000,000, and (B) borrowed money, internally
generated funds and/or equity contributions shall not exceed
$35,000,000;
(3) if immediately prior to and after giving effect
to such Acquisition, the Leverage Ratio is equal to or greater than
2.35:1.00, the aggregate consideration paid by the Borrower and/or the
Subsidiaries in connection with all Acquisitions, with (A) borrowed
money and/or internally generated funds shall not exceed $10,000,000,
and (B) borrowed money, internally generated funds and/or equity
contributions shall not exceed $20,000,000;
(iv) the aggregate consideration paid by the Borrower
and/or the Subsidiaries in connection with all Acquisitions, with (A)
borrowed money and/or internally generated funds shall not exceed
$40,000,000, and (B) borrowed money, internally generated funds and/or
equity contributions shall not exceed $60,000,000;
(v) the Borrower shall furnish the Administrative Agent
with written notice of such acquisition not less than thirty (30) days
prior to the closing of such Acquisition;
(vi) in the event any Acquisition is of Capital Stock,
the Borrower shall, pursuant the Security Agreement, grant to the
Administrative Agent a first security interest in all of the Capital
Stock of such new Subsidiary if such new Subsidiary is a Domestic
Subsidiary, and 65% of the Capital Stock of such new Subsidiary if
such new Subsidiary is a Material Foreign Subsidiary, and each new
Subsidiary shall, at the time it becomes a new subsidiary, execute
such certifications, opinions, resolutions and documents as the
Administrative Agent may reasonably require (consistent with the
requirements of this Agreement) to cause such new Subsidiary (if a
Domestic Subsidiary) to become a party to the Guarantee Agreement and
to cause such new Subsidiary to become a party to the Security
Agreement in order for such new Subsidiary to grant to the
Administrative Agent a first security interest in the assets of such
new Subsidiary, subject to the Permitted Encumbrances; and
(vii) the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer of the
Borrower demonstrating that, in a pro forma basis, after giving effect
to such Acquisition, (1) the Borrower would be in compliance with
Sections 7.12, 7.13, 7.14, and 7.15 (such covenants to be determined
as if such Acquisition had been consummated on the first day of the
period for which such covenants are being calculated) and (2) no
Default or Event of Default would exist;
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provided however, the consideration paid by the Borrower for the
Iwatsu Acquisition shall not be included in calculating the
consideration permitted to be paid to the Borrower under clauses (iii)
and (iv).
2.8 Section 7.04 (Investments, Loans, Advances, Guarantees
and Acquisitions) of the Credit Agreement is hereby amended by deleting the
"." at the end of clause (h) and substituting therefor "; and" and adding
the following clause (i):
"(i) the Iwatsu Acquisition provided that (i) the Borrower
shall have complied with Section 7.04(e)(vi) and (vii) and (ii) the
aggregate consideration paid by the Borrower for the Iwatsu Acquisition
does not exceed the amounts set forth in the Iwatsu Purchase Agreement
as in effect on the date of Amendment No. 2 to Credit Agreement."
2.9 Section 7.08 (Restricted Payments) of the Credit
Agreement is hereby amended by deleting in its entirety the text of Section
7.08 and Substituting therefor the following:
"Section 7.08 Restricted Payments. The Borrower will not, and
will not permit any of the Subsidiaries to, declare or make, or agree
to pay for or make, directly or indirectly, any Restricted Payment,
except that (a) the Borrower may declare and pay dividends with respect
to its Capital Stock payable solely in additional shares of its Capital
Stock, (b) any Subsidiary may declare and pay dividends with respect to
its Capital Stock to the Borrower or any Subsidiary Guarantor (c) the
Borrower may make Restricted Payments in cash to pay dividends on its
common stock or to repurchase its common stock so long as, in each
case, immediately before and after giving effect to any such Restricted
Payments (i) the aggregate amount of all such Restricted Payments shall
not exceed (i) $25,000,000 if the Leverage Ratio is and would be less
than 2.00:1.00 immediately prior to and after giving effect to any such
Restricted Payment and (2) $5,000,000 if the Leverage Ratio is and
would be greater than or equal to 2:00:1.00, immediately prior to and
after giving effect to any such Restricted Payment (ii) the Borrower
shall have delivered to the Administrative Agent a certificate of a
Financial Officer of the Borrower demonstrating that, in a pro forma
basis, after effect to any such Restricted Payment (1) the Borrower is
and would be in compliance with Sections 7.12, 7.13, 7.14 and 7.15 and
(2) no Default or Event of Default exists or would result from any such
Restricted Payment."
3. CONDITIONS PRECEDENT TO EFFECTIVENESS.
Upon the fulfillment of the following conditions precedent, this
Amendment and the amendments contained in Section 2 hereof shall
become effective as of May 9, 2006:
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3.1 Amendment. The Administrative Agent shall have received
this Amendment, duly executed by a duly authorized officer or officers of
the Borrower, the Administrative Agent and the Lenders.
3.2 Notes. The Administrative Agent shall have received, for
the benefit of each Lender, an Amended and Restated Revolving Note, duly
executed by a duly authorized officer of the Borrower in the principal
amount of in the amount of such Lender's Revolving Commitment (after giving
effect to this Amendment) as set forth in Schedule 2.01 (Revised) and
otherwise substantially in the form of Exhibit A-1 annexed hereto.
3.3 Secretary's Certificate. The Administrative Agent shall
have received a certificate, dated the date hereof, duly executed by the
Secretary, Assistant Secretary, or other analogous counterpart of the
Borrower:
(a) attaching a true and complete copy of the
resolutions of its Managing Person and of all other documents evidencing
all necessary limited liability company action (in form and substance
satisfactory to the Administrative Agent) taken to authorize this Amendment
and the other transactions contemplated hereby;
(b) certifying that no amendment or modification of its
Organizational Documents has occurred since the date of delivery thereof to
the Administrative Agent in connection with the Credit Agreement; and
(c) setting forth the incumbency of its officer or
officers (or other analogous counterpart) who may sign this Amendment and
the other documents to be executed by it in connection herewith, including
therein a signature specimen of such officer or officers (or other
analogous counterpart).
3.4 Guaranty Confirmation. The Administrative Agent shall
have received a counterpart of the Guaranty Confirmation, substantially in
the form attached hereto as Exhibit C, duly executed by each of the
Guarantors.
3.5 Security Agreement Confirmation. The Administrative
Agent shall have received a counterpart of the Security Agreement
Confirmation, substantially in the form attached hereto as Exhibit D, dated
the date hereof, duly executed by the Borrower and each Guarantor.
3.6 Financial Officer's Certificate. The Administrative
Agent shall have received a certificate signed by a Financial Officer of
the Borrower, in such Financial Officer's capacity as an officer of the
Borrower, in all respects reasonably satisfactory to the Administrative
Agent, dated the date hereof, certifying that the representations and
warranties contained in the Loan Documents that are qualified as to
materiality are true and correct in all respects, that the representations
and warranties contained in the Loan Documents that are not so qualified
are true and correct in all material respects, and that, immediately before
and after giving effect to this Amendment, no Default exists or will exist.
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3.7 Fees. The Administrative Agent shall have received all
fees and other amounts due and payable to the Administrative Agent and the
Lenders under the Loan Documents on or prior to the date hereof, including,
to the extent invoiced, reimbursement or payment of the fees and
disbursements of Special Counsel and all other out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
3.8 Other Documents. The Administrative Agent shall have
received all other documents that the Administrative Agent may reasonably
request with respect to any matter relevant to this Amendment.
4. REPRESENTATIONS AND WARRANTIES. The Borrower represents
and warrants to the Lenders and the Administrative Agent that:
4.1 No Default. After giving effect to this Amendment, no
Default or Event of Default shall have occurred or be continuing.
4.2 Existing Representations and Warranties. As of the date
hereof and after giving effect to this Amendment, each and every one of the
representations and warranties set forth in the Loan Documents is true,
accurate and complete in all respects and with the same effect as though
made on the date hereof, and each is hereby incorporated herein in full by
reference as if restated herein in its entirety, except for any
representation or warranty limited by its terms to a specific date and
except for changes in the ordinary course of business which are not
prohibited by the Credit Agreement (as amended hereby) or changes which do
not, either singly or in the aggregate, have a Material Adverse Effect.
4.3 Authority; Enforceability. (i) The execution, delivery
and performance by the Borrower of this Amendment are within its corporate
powers and have been duly authorized by all necessary corporate action,
(ii) this Amendment is the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and (iii) this Amendment
and the execution, delivery and performance by the Borrower thereof does
not: (A) contravene the terms of the Borrower's organizational documents;
(B) conflict with or result in any breach or contravention of, or the
creation of any Lien (other than Liens under the Loan Documents) under, any
document evidencing any contractual obligation to which the Borrower is a
party or any order, injunction, writ or decree to which it or its
respective property is subject; or (C) violate any requirement of law.
5. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
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5.1 Effect. Except as specifically amended hereby, the
Credit Agreement and the other Loan Documents shall remain in full force
and effect in accordance with their terms and are hereby ratified and
confirmed.
5.2 No Waiver; References. The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of the Administrative Agent or any Lender under the Credit
Agreement, or constitute a waiver of any provision of the Credit Agreement,
except as specifically set forth herein. Upon the effectiveness of this
Amendment, each reference in:
(i) the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of similar import shall mean and
be a reference to the Credit Agreement as amended hereby;
(ii) the other Loan Documents to the term "the Credit
Agreement" shall mean and be a reference to the Credit Agreement as amended
hereby; and
(iii) the Loan Documents to the term "the Loan
Documents" shall be deemed to include this Amendment.
6. MISCELLANEOUS.
6.1 Expenses. The Borrower agrees to pay the Administrative
Agent upon demand for all reasonable expenses, including reasonable
attorneys' fees and expenses of the Administrative Agent, incurred by the
Administrative Agent in connection with the preparation, negotiation and
execution of this Amendment.
6.2 Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute
a part of this Amendment for any other purposes.
6.3 Law; Waiver of Trial by Jury. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LOANS. THE PARTIES
HERETO HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED UPON, ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AMENDMENT.
6.4 Successors. This Amendment shall be binding upon the
Borrower, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Borrower, the
Lenders and the Administrative Agent and the successors and assigns of the
Lenders and the Administrative Agent.
6.5 Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, including
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counterparts executed and delivered by facsimile each of which when so
executed and delivered shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized officers on the date
first written above.
XXXXXX CORPORATION
By: /s/ Xxxx X'Xxxxxx
-------------------------------
Name: Xxxx X'Xxxxxx
Title: Vice President and
Chief Financial Officer
THE BANK OF NEW YORK,
as Administrative Agent, as Issuing Lender
and as a Lender
By:
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXXX BANK, NATIONAL
ASSOCIATION, as a Lender
By:
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Name:
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Title:
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LASALLE BANK NATIONAL
ASSOCIATION, as a Lender
By:
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Name:
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Title:
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MANUFACTURERS AND TRADERS
TRUST COMPANY, as a Lender
By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By:
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Name:
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Title:
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