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EXHIBIT 10.1
WAIVER, AMENDMENT AND JOINDER AGREEMENT
THIS WAIVER, AMENDMENT AND JOINDER AGREEMENT (this "Agreement") is made
and entered into as of this 17th day of April, 1998 by and among CCA Prison
Realty Trust ("CCA REIT"), Prison Realty Management, Inc. ("Management"), U.S.
Corrections Corporation ("USCC"), the Subsidiaries of USCC identified on the
signature pages hereto (such subsidiaries of USCC, collectively with Management
and USCC, the "New Borrowers"), the financial institutions who are or may become
party to the Credit Agreement referenced below (the "Lenders"), and FIRST UNION
NATIONAL BANK (f/k/a First Union National Bank of Tennessee), a national banking
association ("First Union"), as Administrative Agent for the Lenders (the
"Administrative Agent").
Statement of Purpose
The Lenders agreed to extend certain credit facilities to CCA REIT
pursuant to the Credit Agreement dated as of July 18, 1997 by and among CCA
REIT, the Lenders and the Administrative Agent (as amended restated, modified or
otherwise supplemented from time to time, the "Credit Agreement").
CCA REIT desires to purchase 100% of the outstanding capital stock of
USCC for an aggregate purchase price of approximately $255 Million, through a
merger of a Wholly- Owned Subsidiary of CCA REIT with and into USCC, resulting
in USSC becoming a Wholly-Owned Subsidiary of CCA REIT (the "Acquisition and
Merger"). USCC has several Subsidiaries, which Subsidiaries own certain real
property located in Kentucky, North Carolina and Ohio. USCC, Inc., a direct
subsidiary of USCC, has an existing credit facility in the aggregate principal
amount of up to $70 Million with certain lenders party thereto and Credit Suisse
First Boston, as agent for the lenders thereunder (the "Credit Suisse Credit
Facility"). The Credit Suisse Credit Facility is secured by substantially all of
the assets of USCC and its Subsidiaries (the "USSC Collateral").
The transactions described above require certain waivers under the
terms and conditions of the Credit Agreement. The Borrowers hereby request and
the Agents and the Lenders hereby agree to the following:
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. All capitalized terms used in this Agreement and
not defined herein shall have the meanings assigned thereto in the Credit
Agreement.
2. Effect of Amendments and Waivers. Except as expressly amended
hereby, the Credit Agreement and Loan Documents shall be and remain in full
force and effect. The waivers granted herein are specific and limited and shall
not constitute an amendment of the Credit Agreement or the Loan Documents or a
modification, acceptance or waiver of any
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other provision of or default under the Credit Agreement, the Loan 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
(except to the extent necessary to give effect to the specific waivers and
agreements set forth herein).
3. Amendments to Credit Agreement.
(a) Section 1.1 of the Credit Agreement shall hereby be
amended by deleting the defined term "Aggregate Commitment" in its
entirety and substituting the following in lieu thereof:
"'Aggregate Commitment' shall mean the aggregate amount of the
Lenders' Commitments hereunder, as such amount may be reduced or
modified at any time or from time to time pursuant to the terms hereof.
The Aggregate Commitment as of April 17, 1998 shall be Two Hundred and
Twenty Five Million Dollars ($225,000,000)."
(b) Schedule 1.1(b) of the Credit Agreement is hereby replaced
with the updated copy of Schedule 1.1(b) attached hereto.
(c) Schedule 6.1(a) and Schedule 6.1(b) of the Credit
Agreement are hereby replaced with the updated copies of such Schedules
attached hereto.
4. Waivers of Credit Agreement. The Administrative Agent and the
Lenders hereby consent to the following waivers under the Credit Agreement:
(a) The Administrative Agent and the Lenders hereby waive the
provisions of Section 8.16 for the period commencing on the date hereof
and continuing through and including May 15, 1998 (the "Collateral
Waiver Period"), solely to permit the consummation of the Acquisition
and Merger without the execution of the joinder agreements and other
documents required pursuant to Section 8.16; provided, that (i) CCA
REIT and its new direct and indirect Subsidiaries shall use their
reasonable best efforts to deliver to the Administrative Agent the
documents required pursuant to the terms and conditions of Section 8.16
on the date hereof and (ii) on or before the last day of the Collateral
Waiver Period, CCA REIT and its new direct and indirect Subsidiaries
shall have executed and delivered to the Administrative Agent each and
every document required pursuant to the terms and conditions of Section
8.16.
(b) The Administrative Agent and the Lenders hereby waive the
provisions of Sections 10.1 and 10.3 for the period commencing on the
date hereof and continuing through and including April 28, 1998 (the
"Credit Suisse Waiver Period"), solely to permit the Credit Suisse
Credit Facility and the Liens on the USCC Collateral which secure such
Debt; provided, that on or before the last day of such period, the
Credit Suisse Credit Facility shall have been repaid in full and
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terminated and the Liens on the USCC Collateral shall have been
released.
(c) The Administrative Agent and the Lenders hereby waive the
provisions of Sections 10.4 and 10.5 solely to permit the Acquisition
and Merger.
(d) The Administrative Agent and the Lenders hereby waive the
provisions of Section 10.4 solely to permit CCA REIT and its new direct
and indirect Subsidiaries to deliver the security documents and other
documents and instruments required pursuant to Section 10.4(b) which
shall evidence the first priority Lien on the USCC Collateral on or
prior to the last day of the Collateral Waiver Period; provided that
CCA REIT and its new direct and indirect Subsidiaries shall use their
reasonable best efforts to deliver the security documents and other
documents and instruments required pursuant to Section 10.4(b) which
shall evidence the first priority Lien on the USSC Collateral on the
date hereof.
5. The Administrative Agent and the Lenders hereby waive any Default or
Event of Default which shall have or may occur under (a) arising from the
Borrowers' failure to comply with Section 8.16 solely with regard to Management
prior to the date hereof and (b) Section 11.1(g), solely as a result of an
"default or event of "default" under the Credit Suisse Credit Facility resulting
from the consummation of the Acquisition and Merger and the execution and
delivery of this Agreement or any other document required pursuant to this
Agreement; provided, that this waiver shall only be effective during the Credit
Suisse Waiver Period.
6. Each of the New Borrowers hereby agrees that by executing this
Agreement it shall become a Borrower party to the Credit Agreement and each
other applicable Loan Document as if a signatory thereto on the Closing Date of
the Credit Agreement, and each New Borrower shall comply with all of the terms,
covenants, conditions and agreements set forth in the Credit Agreement and each
applicable Loan Document and hereby makes each representation and warranty to be
made by the Borrowers under the Credit Agreement and each applicable Loan
Document, in each case set forth therein. Further, each New Borrower agrees that
it shall be jointly and severally liable with each Borrower for all Obligations
of any Borrower under the Credit Agreement or any other Loan Document regardless
of the date of such Obligation.
7. Conditions. The effectiveness of this Agreement shall be conditioned
upon delivery to the Administrative Agent of the following items:
(a) Notes. CCA REIT and the New Borrowers shall issue and
deliver to the Administrative Agent, in exchange for the Notes
outstanding, separate new Notes, payable to each Lender in the amount
of such Lender's Commitment Percentage or the Aggregate Commitment.
(b) Officer's Certificate. The Administrative Agent shall have
received a certificate from the chief executive officer or chief
financial officer of CCA REIT,
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in form and substance reasonably satisfactory to the Administrative
Agent, to the effect that all representations and warranties of the
Borrowers contained in the Credit Agreement and the other Loan
Documents are true, correct and complete in all material respects; that
no Borrower is in violation of any of the covenants contained in the
Credit Agreement and the other Loan Documents; that, after giving
effect to the transactions contemplated by this Agreement, no Default
or Event of Default has occurred and is continuing; and that each
Borrower has satisfied each of the closing conditions hereof to be
satisfied thereby.
(c) Secretary's Certificates. The Administrative Agent shall
have received a certificate of the secretary or assistant secretary of
each of CCA REIT and the New Borrowers certifying that (A) attached
thereto is a true and complete copy of the certificate of incorporation
or declaration of trust, as applicable, of such entity and all
amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation; (B)
attached thereto is a true and complete copy of the bylaws of such
entity as in effect on the date of such certification; (C) attached
thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors of such entity authorizing the transactions
contemplated herein, the borrowings contemplated hereunder and the
execution, delivery and performance of this Agreement and the other
documents related thereto; and (D) as to the incumbency and genuineness
of the signature of each officer of such entity executing this
Agreement and the other documents related hereto.
(d) Certificates of Good Standing. The Administrative Agent
shall have received short-form certificates as of a recent date of the
good standing of each of CCA REIT and the New Borrowers under the laws
of its jurisdiction of organization and such other jurisdictions
requested by the Administrative Agent.
(e) Opinions of Counsel. The Administrative Agent shall have
received favorable opinions of counsel to the Borrowers (including
local counsel) addressed to the Administrative Agent and the Lenders
with respect to such Persons and the Loan Documents, as modified by
this agreement, reasonably satisfactory in form and substance to the
administrative Agent and the Lenders.
(f) Credit Suisse Credit Facility Payoff. The Administrative
Agent shall have received evidence, in form and substance satisfactory
to the Administrative Agent that (i) USCC, Inc. shall have given
irrevocable notice to Credit Suisse of its intention to pay off and
terminate the Credit Suisse Credit Facility and (ii) funds sufficient
to repay in full all outstanding obligations under the Credit Suisse
Credit Facility have been deposited with a bank satisfactory to the
Administrative Agent pursuant to an agreement, in form and substance
satisfactory to the Administrative Agent, requiring (A) that such funds
be used to pay in full and terminate the Credit Suisse Credit Facility
upon the expiration of the prepayment notice period under the Credit
Suisse Credit Facility and (B) upon such payment and termination all
Liens securing such facility shall be released.
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(g) Fees. In order to compensate the Administrative Agent and
the Lenders for their obligations hereunder, the Borrowers agrees to
pay to the Administrative Agent and the Lenders existing at the time
this Agreement becomes effective the fees set forth in that certain
commitment letter agreement of even date herewith between CCA REIT and
First Union National Bank.
(h) Expenses. The Borrower shall pay all reasonable
out-of-pocket expenses of the Administrative Agent in connection with
the preparation, execution and delivery of this Agreement, including
without limitation, the reasonable fees and disbursements of counsel
for the Administrative Agent.
7. Representations and Warranties; No Default. By its execution hereof,
CCA REIT hereby certifies that each of the representations and warranties set
forth in the Credit Agreement and the other Loan Documents is true and correct
as of the date hereof as if fully set forth herein (other than representations
and warranties which speak as of a specific date pursuant to the Credit
Agreement, which representations and warranties shall have been true and correct
as of such specific dates) and that as of the date hereof no Default or Event of
Default has occurred and is continuing.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
9. Counterparts. This Agreement may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
[SEAL] CCA PRISON REALTY TRUST
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Secretary
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[CORPORATE SEAL] U.S. CORRECTIONS CORPORATION
By /s/ D. Xxxxxx Xxxxxx, III
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Name: D. Xxxxxx Xxxxxx, III
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Title: President
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[CORPORATE SEAL] USCC, INC.
By: /s/ D. Xxxxxx Xxxxxx, III
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Name: D. Xxxxxx Xxxxxx, III
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Title: President
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[CORPORATE SEAL] U.S. CORRECTIONS LEASING (NC)
XXXXX/XXXXXXXX FACILITY, INC.
By: /s/ D. Xxxxxx Xxxxxx, III
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Name: D. Xxxxxx Xxxxxx, III
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Title: President
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[Signature Pages Continue]
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[CORPORATE SEAL] U.S. CORRECTIONS LEASING (NC)
PAMLICO FACILITY, INC.
By: /s/ D. Xxxxxx Xxxxxx, III
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Name: D. Xxxxxx Xxxxxx, III
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Title: President
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[CORPORATE SEAL] QUEENSGATE CORRECTIONAL
CENTER, INC.
By: /s/ D. Xxxxxx Xxxxxx, III
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Name: D. Xxxxxx Xxxxxx, III
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Title: President
[CORPORATE SEAL] PRISON REALTY MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Secretary
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[Signature Pages Continue]
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FIRST UNION NATIONAL BANK (f/k/a
First Union National Bank of Tennessee),
as Administrative Agent and Lender
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Vice President
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[Signature Pages Continue]
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SOUTHTRUST BANK, N.A., as Lender
By: /s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
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Title: Vice President
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[Signature Pages Continue]
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AMSOUTH BANK, as Lender
By: /s/ Xxx Xxxxxxx, Jr.
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Name: Xxx Xxxxxxx, Jr.
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Title: Senior Vice President
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[Signature Pages Continue]
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CIBC INC., as Lender
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Executive Director
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[Signature Pages Continue]
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COMERICA BANK, as Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Account Officer
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[Signature Pages Continue]
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FIRST TENNESSEE BANK, as Lender
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Vice President
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[Signature Pages Continue]
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MERCANTILE BANK NATIONAL
ASSOCIATION, as Lender
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Vice President
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[Signature Pages Continue]
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UNION PLANTERS BANK, N.A.
(formerly Union Planters National Bank),
as Lender
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
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Title: Vice President
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[Signature Pages Continue]
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BANK HAPOALIM, B. M., as Lender
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
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Title: Vice President/Controller
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By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Vice President
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[Signature Pages Continue]
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BANK OF SCOTLAND, as Lender
By: /s/ Xxxxx Xxxx Tat
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Name: Xxxxx Xxxx Tat
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Title: Vice President
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SCHEDULE 1.1(B)
Revolving
Credit Commitment
Lender Commitment Percentage
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First Union National Bank of Tennessee $105,000,000 46.0000000000%
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn.: Syndication Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
First Union National Bank of Tennessee
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn.: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SouthTrust Bank, National Association $ 20,000,000 8.0000000000%
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn.: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
AmSouth Bank $ 20,000,000 8.0000000000%
000 Xxxxx Xxxxxx, #000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn.: Xxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Revolving
Credit Commitment
Lender Commitment Percentage
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CIBC Inc. $15,000,000 6.66666666667%
Two Paces West
2727 Paces Ferry Road, Ste. 1200
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Comerica Bank $20,000,000 8.88888888889%
0xx Xxxxx XX 0000
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
First Tennessee Bank $10,000,000 4.0000000000%
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Mercantile Bank, National Association $10,000,000 4.0000000000%
000 Xxxxxx Xxxxxx, XXXX 00-0
Xx. Xxxxx, Xxxxxxxx 00000
Attn.: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Union Planters Bank, N.A. $10,000,000 4.0000000000%
(formerly Union Planters National Bank)
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn.: Xxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Revolving
Credit Commitment
Lender Commitment Percentage
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Bank Hapoalim, B.M. $10,000,000 4.0000000000%
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn.: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Revolving
Credit Commitment
Lender Commitment Percentage
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Bank of Scotland $5,000,000 2.2222222222%
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn.: Xxxx Xxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 __________ _____________
Total $225,000,000 100%
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