1
Exhibit 10.3
FIFTH AMENDMENT
FIFTH AMENDMENT dated as of November 16, 1998 (this "Amendment"), by and
among (a) METALLURG, INC., a Delaware corporation ("MI"), having its principal
place of business at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
SHIELDALLOY METALLURGICAL CORPORATION, a Delaware corporation ("SMC"), having
its principal place of business at 00 Xxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
(MI and SMC are collectively referred to herein as the "Borrowers"); (b)
METALLURG SERVICES, INC., a New York corporation ("MSI"), having its principal
place of business at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, MIR (CHINA),
INC., a Delaware corporation ("MIR China"), having its principal place of
business at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and METALLURG HOLDINGS
CORPORATION, a New Jersey corporation ("MHC"), having its principal place of
business at 00 Xxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (MSI, MIR China and
MHC are collectively referred to herein as the "Guarantors"); (c) BANKBOSTON,
N.A. (formerly known as The First National Bank of Boston), a national banking
association, as agent (in such capacity the "Agent") for itself and the other
financial institutions from time to time parties to the Loan Agreement referred
to below (collectively, the "Banks"); and (d) the BANKS, amending certain
provisions of the Loan Agreement dated as of April 14, 1997, by and among the
Borrowers, the Guarantors, the Agent and the Banks (as amended or modified and
in effect from time to time, the "Loan Agreement"). Terms not otherwise defined
herein which are defined in the Loan Agreement shall have the respective
meanings herein assigned to such terms in the Loan Agreement. Terms not
otherwise defined herein or in the Loan Agreement but which are defined in ss.1
of this Amendment shall have the respective meanings in this Amendment assigned
to such terms in ss.1.
WHEREAS, the Borrowers and the Guarantors have requested that the Agent
and the Banks agree to amend the terms of the Loan Agreement in certain respects
and to consent to certain amendments to the German Loan Agreement, in each case
in order to permit MI to enter into a set-off system for the calculation of
interest with respect to bank accounts of MI and GfE maintained with Bank
Mendes; and
WHEREAS, the Agent and the Banks are willing to so amend the terms of the
Loan Agreement in such respects as hereinafter more fully set forth and to
consent to such amendments to the German Loan Agreement, in each case, upon the
terms and subject to the conditions contained herein;
NOW, THEREFORE, in consideration of the mutual agreements contained in the
Loan Agreement, herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ss.1. Amendment of ss.1 of the Loan Agreement. Section 1 of the Loan
Agreement is hereby amended by inserting the following new definitions in proper
alphabetical order:
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"Bank Mendes: Bank Mendes Xxxx N.V., a company limited by shares
incorporated under the laws of The Netherlands."
"Bank Mendes Accounts: The bank accounts maintained by MI and GfE
with Bank Mendes and subject to the Interest Set-Off Agreement. "
"Fifth Amendment: The Fifth Amendment hereto dated as of November
__, 1998, among the Borrowers, the Guarantors, the Agent and the Banks."
"Fifth Amendment Effective Date: The date on which the conditions to
the effectiveness of the Fifth Amendment (such conditions being set forth
in Section 5 thereof) shall have been satisfied."
"GfE: GfE-Gesellschaft fur Elektrometallurgie MBH, a company
incorporated under the laws of Germany and a German Borrower."
"Interest Set-Off Agreement. The Interest Set-Off
Agreement-Guarantee dated as of September 30, 1998 between MI, GfE and
Bank Mendes, in the form delivered to the Agent on or prior to the Fifth
Amendment Effective Date."
ss.2. Amendment of ss.9 of the Loan Agreement. Section 9 of the Loan
Agreement is hereby amended as follows:
(a) by amending Section 9.2(b) of the Loan Agreement by deleting the word
"and" at the end of clause (x) thereof and inserting before the semi-colon at
the end of clause (xi) thereof the following new clause (xii):
"(xii) Indebtedness of MI in respect of its guaranty of the
obligations of GfE under the Interest Set-Off Agreement not to exceed the
amount permitted under ss.9.2(d)(xiii) at any time."
(b) by amending Section 9.2(c) of the Loan Agreement by deleting the word
"and" at the end of clause (ix) thereof and inserting before the semi-colon at
the end of clause (x) thereof the following new clause (xi):
"(xi) Liens on any and all present and future claims of MI on Bank
Mendes arising from or in connection with the Bank Mendes Account securing
the Indebtedness permitted by ss.9.2(b)(xii)."
(c) by amending Section 9.2(d)(vii) of the Loan Agreement by replacing
such clause with the following clause (vii):
"(vii) in the Operating Accounts, the Lock Box Accounts, operating
bank accounts of the Guarantors and, subject to ss.9.2(d)(xiii) hereof,
the Bank Mendes Accounts,"
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(d) by further amending Section 9.2(d) of the Loan Agreement by deleting
the word "and" at the end of clause (xi) thereof and inserting before the
semi-colon at the end of clause (xii) thereof the following new clause (xiii):
"(xiii) in GfE consisting of deposits in the Bank Mendes Accounts or
MI's guaranty of the obligations of GfE under the Interest Set-Off
Agreement, provided, however, that (A) the aggregate amount of such
investments, together with any investments in the German Borrowers made
pursuant to ss.9.2(d)(vi)(C) and (D)(ii) hereof, shall not exceed
$16,500,000 at any time and (B) MI shall use its best efforts not to cause
or permit the credit balance in its Bank Mendes Account(s), determined not
less frequently than once per week, to exceed the debit balance in GfE's
Bank Mendes Account(s), determined at such time."
ss.3. Limited Consents.
Consent to Amendment of German Loan Agreement. The German Borrowers and
the German Lender have agreed to amend the German Loan Agreement. Pursuant to
Section 15 of the Loan Agreement, such amendment under the German Loan Agreement
and other German Loan Documents requires the written consent of the Majority
Banks. Accordingly, each of the undersigned Banks hereby consents to the Second
Amendment to the German Loan Agreement in substantially the form attached hereto
as Exhibit A.
Consent to Other Intercompany Interest Set-off Arrangements. The Borrowers
have advised the Agent and the Banks that they may, in the future, wish to enter
into interest set-off arrangements on behalf of one or more of their
Subsidiaries similar to the arrangement with Bank Mendes contemplated under this
Amendment (the "Intercompany Interest Set-off Arrangements"). Notwithstanding
that certain provisions of the Intercompany Interest Set-off Arrangements would
not be permitted under the Loan Agreement, the Borrowers have requested that the
Banks consent to such Intercompany Interest Set-off Arrangements as set forth
herein. The Banks hereby consent to such Intercompany Interest Set-off
Arrangements provided that (a) prior to the Borrowers entering into any such
Intercompany Interest Set-off Arrangement, the Agent shall have been provided
copies of all documentation relating thereto and shall have given its written
consent to such arrangements (including its consent to the institution at which
such Intercompany Interest Set-off Arrangement is to be maintained), (b) the sum
of (i) the aggregate amount of investments made in connection with all such
Intercompany Set-off Arrangements with respect to any Subsidiary, plus (ii) all
other investments in such Subsidiary made pursuant to Section 9.2(d)(vi) plus
(iii) all other investments in any other Subsidiary treated under the same
investment limitation in Section 9.2(d)(vi), shall not exceed the investment
limitation relating to such Subsidiary and such other Subsidiaries set forth in
Section 9.2(d)(vi), (c) immediately prior to and after, and after giving effect
to the institution of such Intercompany Setoff Arrangement, no Default or Event
of Default shall have occurred and be continuing, and (d) the Borrowers shall
use their best efforts not to cause or permit the credit balance in its bank
account(s) maintained in connection with any such Intercompany Interest Set-off
Arrangement, determined not less frequently than once per week, to exceed the
debit balance in the Subsidiary's bank account(s) maintained in connection with
such Intercompany Interest Set-off Arrangement, determined at such time.
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Limitations. The foregoing consents are limited strictly to their terms,
shall apply only to the specific actions described herein, shall not extend to
or affect any of the Borrowers', the Guarantors' or MCL's other obligations
contained in the Loan Agreement or any other Loan Document and shall not impair
any rights consequent thereon. None of the Agent or the Banks shall have any
obligation to issue any further consent with respect to the subject matter of
hereof or any other matter. Except as expressly set forth herein, nothing
contained herein shall be deemed to be a waiver of, or shall in any way impair
or prejudice, any rights of the Agent or the Banks under the Loan Agreement or
any other Loan Document.
ss.4. Representations, Warranties and Covenants; No Default;
Authorization. Each of the Borrowers and Guarantors hereby represents, warrants
and covenants to the Agent and the Banks as follows:
(a) Each of the representations and warranties of such Borrower or
Guarantor contained in the Loan Agreement was true as of the date as of which it
was made and is true as and at the date of this Amendment, and no Default or
Event of Default has occurred and is continuing as of the date of this
Amendment;
(b) This Amendment has been duly authorized, executed and delivered by
each of the Borrowers and Guarantors and is in full force and effect; and
(c) Upon the execution and delivery of this Amendment by the respective
parties hereto, this Amendment shall constitute the legal, valid and binding
obligation of the Borrowers and the Guarantors, enforceable in accordance with
its terms, except that the enforceability thereof may be subject to any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally.
ss.5. Conditions to Effectiveness. The effectiveness of this Amendment,
including the amendments and limited consent contained herein, shall be subject
to the satisfaction of the following conditions precedent:
(a) This Amendment shall have been duly executed and delivered by the
respective parties hereto and shall be in full force and effect;
(b) The Agent shall have received a fully executed copy of the Interest
Set-Off Agreement; and
(c) MI shall have delivered to Bank Mendes a letter, in form and substance
satisfactory to the Agent, instructing Bank Mendes, in the event it enforces its
rights under the Interest Set-Off Agreement, to pay to the Agent any surplus
amounts in the Bank Mendes Accounts.
ss.6. Ratification, etc. Except as expressly amended hereby, the Loan
Agreement and all documents, instruments and agreements related thereto are
hereby ratified and confirmed in all
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respects. All references in the Loan Agreement or any related agreement or
instrument to the Loan Agreement shall hereafter refer to the Loan Agreement as
amended hereby.
ss.7. No Implied Waiver. Except as expressly provided herein, nothing
contained herein shall constitute a waiver of, impair or otherwise affect any
Obligations, any other obligations of any of the Borrowers or Guarantors or any
right of the Agent or any Bank consequent thereon.
ss.8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
ss.9. Governing Law. THIS AMENDMENT SHALL FOR ALL PURPOSES BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICTS OF LAW).
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as a
sealed instrument as of the date first above written.
METALLURG, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President, Finance
SHIELDALLOY METALLURGICAL
CORPORATION
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Secretary
METALLURG SERVICES, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
MIR (CHINA), INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
METALLURG HOLDINGS CORPORATION
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President, Treasurer
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BANKBOSTON, N.A. (formerly known as
The First National Bank of Boston),
individually and as Agent
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Director
BANK OF SCOTLAND
By: /s/ Xxxxx Xxxx Tat
----------------------------------------
Name: Xxxxx Xxxx Tat
Title: Senior Vice President
NATIONAL BANK OF CANADA
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: V.P.
By: /s/ Xxxxxxx Wirte
----------------------------------------
Name: Xxxxxxx Wirte
Title: V.P.
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SIXTH AMENDMENT
SIXTH AMENDMENT dated as of March 31, 1999 (this "Amendment"), by and
among (a) METALLURG, INC., a Delaware corporation ("MI"), having its principal
place of business at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
SHIELDALLOY METALLURGICAL CORPORATION, a Delaware corporation ("SMC"), having
its principal place of business at 00 Xxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
(MI and SMC are collectively referred to herein as the "Borrowers"); (b)
METALLURG SERVICES, INC., a New York corporation ("MSI"), having its principal
place of business at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, MIR (CHINA),
INC., a Delaware corporation ("MIR China"), having its principal place of
business at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and METALLURG HOLDINGS
CORPORATION, a New Jersey corporation ("MHC"), having its principal place of
business at 00 Xxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (MSI, MIR China and
MHC are collectively referred to herein as the "Guarantors"); (c) BANKBOSTON,
N.A. (formerly known as The First National Bank of Boston), a national banking
association, as agent (in such capacity the "Agent") for itself and the other
financial institutions from time to time parties to the Loan Agreement referred
to below (collectively, the "Banks"); and (d) the BANKS, amending certain
provisions of the Loan Agreement dated as of April 14, 1997, by and among the
Borrowers, the Guarantors, the Agent and the Banks (as amended or modified and
in effect from time to time, the "Loan Agreement"). Terms not otherwise defined
herein which are defined in the Loan Agreement shall have the respective
meanings herein assigned to such terms in the Loan Agreement. Terms not
otherwise defined herein or in the Loan Agreement but which are defined in
ss.1.1 of this Amendment shall have the respective meanings in this Amendment
assigned to such terms in ss.1.1.
WHEREAS, the Borrowers and the Guarantors have requested that the Agent
and the Banks amend the terms of the Loan Agreement in order to provide for
certain changes to the financial covenants set forth therein, as provided in
this Amendment;
NOW, THEREFORE, in consideration of the mutual agreements contained in the
Loan Agreement and in this Amendment and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ss.1. Amendments to the Loan Agreement. Subject to the satisfaction of the
conditions set forth in ss.4 below, the Loan Agreement is hereby amended as
follows:
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ss.1.1 Amendments to Definitions. Section 1 of the Loan Agreement is
hereby amended by inserting the following new definitions in the appropriate
places in the alphabetical order:
"Average Liquidity Level. With respect to the Borrowers and the
Guarantors and any particular fiscal period, the average daily Liquidity
Level for such fiscal period determined by reference to the Liquidity
Level on each Business Day during such fiscal period."
"Borrowing Base Availability. On any Business Day of determination,
the excess of (a) the sum of (i) the aggregate amount of Total
Outstandings (excluding German Outstandings) at the close of business on
such day plus (ii) the sum of the German Facility Reserves, if any, of
each of the German Borrowers at the close of business on such day, over
(b) the Borrowing Base, determined by reference to the most recent
Borrowing Base Report and appraisal of Eligible Fixed Assets delivered to
the Banks and the Agent."
"Cash Equivalents. Investments of the types referred to in
ss.9.2(d)(ii)."
"Daily Cash Balance. With respect to the Borrowers and the
Guarantors on any Business Day of determination, the aggregate amount of
all cash and Cash Equivalents on the books of account of the Borrowers and
the Guarantors maintained in accordance with past practices consistently
applied, determined at the close of business on such day."
"Liquidity Level. An amount determined for each Business Day equal
to the sum of the Borrowing Base Availability on such day plus the Daily
Cash Balance on such day."
ss.1.2 Amendment to Conditions Precedent. Section 8 of the Loan Agreement
is hereby amended by inserting therein the following new ss.8(b)(v) immediately
after ss.8(b)(iv) thereof:
"(v) If requested by the Agent, the Agent and each of the Banks
shall have received a Borrowing Base Report dated as of the last day of
the calendar week then most recently ended, together with such supporting
details of receivable aging as of the last day of such week and inventory
designations as of the end of the applicable calendar month (in accordance
with the requirements of ss.9.1(a)(v)) as the Agent or any Bank may
reasonably request."
ss.1.3 Amendment to Affirmative Covenants. Section 9.1 of the Loan
Agreement is hereby amended by deleting the words "within eight (8) Business
Days after" appearing in the fifteenth line of ss.9.1(a)(v) and by substituting
therefor
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the words "no later than Wednesday of the calendar week immediately following
and as of".
ss.1.4 Amendment to Financial Covenants. Section 9.3 of the Loan Agreement
is hereby amended as follows:
(a) By inserting, at the end of Section 9.3(a), the following proviso:
"; provided that the Borrowers shall not be required to comply with
the requirements of the foregoing covenant with respect to any
period of four consecutive fiscal quarters of the Subsidiaries of MI
if the Borrowers shall have demonstrated that they are in compliance
with the requirements of ss.9.3(d) below with respect to the fiscal
quarter ending on the last day of such period."
(b) By inserting, at the end of Section 9.3(b), the following proviso:
"; provided that the Borrowers shall not be required to comply with
the requirements of the foregoing covenant with respect to any
fiscal quarter of the Subsidiaries of MI if the Borrowers shall have
demonstrated that they are in compliance with the requirements of
ss.9.3(d) below with respect to such fiscal quarter."
(c) By inserting, immediately after ss.9.3(c), the following new
ss.9.3(d):
"(d) permit the Average Liquidity Level for any fiscal quarter of
the Subsidiaries of MI to be less than the minimum level set forth
opposite each such fiscal quarter ending date in the table below:
--------------------------------------------------------------------
Minimum Average
Fiscal Quarter Ending Liquidity Level
--------------------------------------------------------------------
3/31/1999 $15,000,000
--------------------------------------------------------------------
6/30/1999 $15,000,000
--------------------------------------------------------------------
9/30/1999 $10,000,000
--------------------------------------------------------------------
12/31/1999 $10,000,000
--------------------------------------------------------------------
3/31/2000 $10,000,000
--------------------------------------------------------------------
provided that the Borrowers shall not be required to comply with the
requirements of the foregoing covenant with respect to any fiscal
quarter of the Subsidiaries of MI if the Borrowers shall have
demonstrated that they are in compliance with the requirements of
ss.ss.9.3(a) and 9.3(b) above with respect to such fiscal quarter or
the period of four fiscal quarters ending on such date, as the case
may be."
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ss.2. Guarantors' Consent. Each of the Guarantors hereby consents to the
amendments to the Loan Agreement set forth in this Amendment, and each confirms
its obligation to the Agent and the Banks under ss.6.4 of the Loan Agreement and
agrees that its guaranty of the Obligations thereunder shall extend to and
include the Loan Agreement as amended by this Amendment.
ss.3. Representations, Warranties and Covenants; No Default;
Authorization. Each of the Borrowers and Guarantors hereby represents, warrants
and covenants to the Agent and the Banks as follows:
(a) each of the representations and warranties of such Borrower or
Guarantor contained in the Loan Agreement was true as of the date as
of which it was made and is true as and at the date of this
Amendment, and no Default or Event of Default has occurred and is
continuing as of the date of this Amendment;
(b) this Amendment has been duly authorized, executed and delivered by
each of the Borrowers and Guarantors and is in full force and
effect; and
(c) upon the execution and delivery of this Amendment by the respective
parties hereto, this Amendment shall constitute the legal, valid and
binding obligation of the Borrowers and the Guarantors, enforceable
in accordance with its terms, except that the enforceability thereof
may be subject to any applicable bankruptcy, reorganization,
insolvency or other laws affecting creditors' rights generally.
ss.4. Conditions to Effectiveness. The effectiveness of this Amendment
shall be subject to the satisfaction of the following conditions precedent:
(a) this Amendment shall have been duly executed and delivered by the
respective parties hereto and shall be in full force and effect;
(b) the Borrowers shall have paid an amendment fee in the amount of
$50,000.00 to the Agent for the accounts of the Banks in accordance
with their respective Commitment Percentages; and
(c) after giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing.
ss.5. Ratification, etc. Except as expressly amended hereby, the Loan
Agreement and all documents, instruments and agreements related thereto are
hereby ratified and confirmed in all respects. All references in the Loan
Agreement
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or any related agreement or instrument to the Loan Agreement shall hereafter
refer to the Loan Agreement as amended hereby.
ss.6. No Implied Waiver. Except as expressly provided herein, nothing
contained herein shall constitute a waiver of, impair or otherwise affect any
Obligations, any other obligations of any of the Borrowers or Guarantors or any
right of the Agent or any Bank consequent thereon.
ss.7. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
ss.8. Governing Law. THIS AMENDMENT SHALL FOR ALL PURPOSES BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICTS OF LAW).
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as a
sealed instrument as of the date first above written.
METALLURG, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President, Finance
SHIELDALLOY METALLURGICAL
CORPORATION
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President, Finance
METALLURG SERVICES, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
MIR (CHINA), INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
METALLURG HOLDINGS
CORPORATION
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President, Treasurer
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BANKBOSTON, N.A. (formerly known
as The First National Bank of Boston),
individually and as Agent
By: /s/ Marwan Isbaih
----------------------------------------
Name: Marwan Isbaih
Title: V.P.
BANK OF SCOTLAND
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Asst. Vice President
NATIONAL BANK OF CANADA
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: VP and Manager
By: /s/ Xxxxxxx X. XxXxxxxx
----------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Assistant Vice President
