Exhibit 10.12
THIRD AMENDMENT AND LIMITED FORBEARANCE AND WAIVER
THIRD AMENDMENT AND LIMITED FORBEARANCE AND WAIVER (this "AMENDMENT"),
dated as of December 19, 2001, among FAIRPOINT COMMUNICATIONS SOLUTIONS CORP., a
Delaware corporation (the "BORROWER"); the Credit Parties (other than the
Parent) listed on the signature pages hereof, for purposes of Section D hereof
only; the Parent, for purposes of Section E hereof only; the lenders party to
the Credit Agreement referred to below (each, a "LENDER" and, collectively, the
"LENDERS"); and FIRST UNION NATIONAL BANK, as Administrative Agent (in such
capacity, the "ADMINISTRATIVE AGENT"). Unless otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement referred to
below (as amended hereby) are used as so defined.
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into that certain Amended and Restated Credit Agreement, dated as of
October 20, 1999, as amended and restated as of March 27, 2000, as further
amended and restated as of November 9, 2000 and as amended by the First
Amendment dated as of March 9, 2001 and further amended by the Second Amendment
and Limited Waiver dated as of November 28, 2001 (as so amended and amended and
restated, the "CREDIT AGREEMENT"); and
WHEREAS, the Borrower has entered into an agreement to sell certain assets
(the "NORTHEAST ASSETS") relating to its business and operations as presently
conducted in the states of Pennsylvania, New York, Maine, New Hampshire, and
Massachusetts to Choice One Communications, Inc. ("CHOICE ONE") and certain
subsidiaries of Choice One, for consideration including, but not limited to, (i)
an amount of $1,500,000 in cash, (ii) 2.5 million shares of Choice One's
unregistered common stock (subject to an increase by up to 2 million additional
shares of such stock, on the terms set forth in the Northeast Asset Sale
Agreement), and (iii) an amount of cash equal to 85% of the aggregate amount of
accounts receivable of the Borrower relating to the Northeast Assets (as
adjusted in accordance with the Northeast Asset Sale Agreement) as of the
closing of the Northeast Asset Sale; and
WHEREAS, the Borrower has requested that Lenders waive, and Lenders have
agreed to waive, subject to the terms and conditions set forth below, certain
restrictions contained in Section 5.02(d) and 9.02 of the Credit Agreement with
respect to the contemplated sale of the Northeast Assets, with the disposition
of all proceeds thereof to be effectuated in the manner set forth in this
Amendment, including for the repayment of the Loans; and
WHEREAS, the Borrower has requested that Lenders agree to forbear, and
Lenders have agreed to forbear, from exercising remedies on account of certain
defaults that may occur between the date hereof and March 31, 2002; and
WHEREAS, subject to the terms and conditions set forth below, the
parties hereto wish to amend the Credit Agreement as provided herein;
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NOW, THEREFORE, it is hereby agreed that;
A. AMENDMENTS TO CREDIT AGREEMENT
1. Section 1 of the Credit Agreement is hereby amended by inserting
therein the following new defined terms in appropriate alphabetical order:
"Budget Period" shall mean the time period from December 24, 2001
through March 31, 2002.
"Choice One" shall means Choice One Communications, Inc., a Delaware
corporation.
"Choice One Stock" shall mean any capital stock or other equity
interests of Choice One received or receivable from time to time by the
Borrower in connection with the Northeast Asset Sale.
"Northeast Asset Sale" shall mean the sales of receivables, equipment
and other assets contemplated by the Northeast Asset Sale Agreement.
"Northeast Asset Sale Cash Proceeds" shall mean all cash received or
receivable from time to time by the Borrower and its Subsidiaries arising
from the Northeast Asset Sale.
"Northeast Asset Sale Agreement" shall mean that certain Network
Transition Agreement dated as of November 7, 2001, by and between Choice
One, Choice One Communications of New York, Inc., Choice One Communications
of Pennsylvania, Inc., Choice One of New Hampshire, Inc., Choice One
Communications of Massachusetts, Inc. and Choice One Communications of
Maine, Inc. (collectively, the "Choice One Parties") and the Borrower, as
such agreement is in effect on the Third Amendment Effective Date and as it
may be amended, supplemented or otherwise modified by the Borrower and the
Choice One Parties in a manner not materially adverse to the Lenders or
with the consent of the Required Lenders.
"Northeast Asset Sale Documents" shall mean, collectively, (i) the
Northeast Asset Sale Agreement and (ii) the Management Services Agreement,
the Non-Competition Agreement and the Investor Rights Agreement in the form
delivered to the Collateral Agent in connection with the Third Amendment,
as entered into by the Borrower and the Choice One Parties upon closing of
the Northeast Asset Sale and as they may be amended, supplemented or
otherwise modified to the extent permitted under Section 9.20.
"Third Amendment" shall mean the Third Amendment and Limited
Forbearance and Waiver to this Agreement dated as of December 19, 2001.
"Third Amendment Effective Date" shall have the meaning assigned to
that term in the Third Amendment.
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"Weekly Cash Budget" shall mean the consolidated weekly cash budget for
the Borrower and its Subsidiaries for the period from November 24, 2001
through May 30, 2002, in the form delivered to the Lenders on December 5,
2001 with such subsequent modifications thereto as may be approved by the
Administrative Agent, setting forth projected cash receipts and cash
expenditures for each such week and the projected balance of available cash
during each such week.
2. Section 5.02(d) of the Credit Agreement is hereby amended by adding
at the end thereof the following sentence:
"Notwithstanding anything contained in this Agreement to the contrary,
upon receipt by the Borrower or any of its Subsidiaries of any Northeast
Asset Sale Cash Proceeds, the Borrower and such Subsidiaries shall (i)
apply the first $5,300,000 in the aggregate of such Northeast Asset Sale
Cash Proceeds (which shall be received simultaneously with the closing of
the Northeast Asset Sale) as a mandatory repayment or repayments of
outstanding Loans, in each case on the date of receipt thereof, and (ii)
after the Borrower and its Subsidiaries shall have received $6,800,000 in
the aggregate of Northeast Asset Sale Cash Proceeds (including amounts
applied to repayment of Loans in accordance with clause (i)), apply 50% of
any Northeast Asset Sale Cash Proceeds received in excess of such amount as
a mandatory repayment or repayments of outstanding Loans, in each case on
the date of receipt thereof. The Borrower and its Subsidiaries may apply
any portion of the Northeast Asset Sale Cash Proceeds not required to be
applied to repayment of the Loans for general corporate purposes not
otherwise prohibited under this Agreement or the other Credit Documents".
3. Section 8.01(f) of the Credit Agreement is hereby amended by
deleting the phrase "five Business Days" contained therein and substituting the
phrase "ten days" therefor.
4. Section 8 of the Credit Agreement is hereby amended by adding at the
end thereof the following new Sections 8.11 and 8.12:
"8.11 NORTHEAST ASSET SALE PROCEEDS. Prior to the consummation of the
Northeast Asset Sale, the Borrower shall provide the Collateral Agent with
evidence reasonably satisfactory to the Collateral Agent that the Borrower
has made arrangements to pay, immediately upon receipt thereof, $5,300,000
of Northeast Asset Sale Cash Proceeds to the Collateral Agent as a
repayment of the Loans pursuant to Section 5.02(d). On the date of
consummation of the Northeast Asset Sale, the Borrower shall take all such
actions as the Collateral Agent may reasonably require to create under the
Amended and Restated Pledge Agreement in favor of the Secured Creditors a
perfected security interest in the Choice One Stock free of adverse claims,
and upon receipt thereafter of any additional Choice One Stock, the
Borrower shall take all such actions as the Collateral Agent may reasonably
require to create under the Amended and Restated Pledge Agreement in favor
of the Secured Creditors a perfected security interest in such Choice One
Stock free of adverse claims.
8.12 WEEKLY CASH BUDGET AND CASH REPORTS. The Borrowers will furnish to
the Administrative Agent and the Lenders, commencing on January 4, 2002
(for the week of
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December 24 through December 30, 2001) and by no later than Friday of each
week thereafter, a report for the week most recently ended setting forth
(i) actual cash receipts and cash expenditures of the Borrower and its
Subsidiaries for such week with respect to each line item described in the
Weekly Cash Budget, (ii) actual aggregate cash receipts and aggregate cash
expenditures of the Borrower and its Subsidiaries for such week (and on a
cumulative basis through the Budget Period), as well as the actual balance
of available cash, (iii) the percentage and dollar variance of such amounts
and the aggregate of such amounts from the projected amounts therefor set
forth in the Weekly Cash Budget, and (iv) a narrative analysis of each such
reported variance".
5. Section 9.01 is hereby amended by adding at the end thereof the
following sentence:
"Notwithstanding the foregoing, the Borrower and its Subsidiaries shall
not be in breach of this Section 9.01 after the Third Amendment Effective
Date so long as the Borrower and its Subsidiaries thereafter engage in
business activities taken as a whole that are not materially different from
(i) the business activities taken as a whole (including incidental
activities) conducted by the Borrower and its Subsidiaries immediately
after the consummation of the Northeast Asset Sale and (ii) businesses
reasonably related thereto and related to the wind-down of those businesses
sold in the Northwest Asset Sale and the Northeast Asset Sale".
6. Section 9 of the Credit Agreement is hereby amended by adding at the
end thereof the following new Section 9.20:
"Section 9.20 AMENDMENT OR WAIVER OF THE NORTHEAST ASSET SALE
DOCUMENTS. Neither Borrower nor any of its Subsidiaries will agree to any
amendment or modification to, or waive any of its material rights under,
any Northeast Asset Sale Document after the Third Amendment Effective Date
if the effect of such amendment, modification or waiver, together with any
other amendments, modifications or waivers made, would be materially
adverse to the Lenders, without in each case obtaining the prior written
consent of the Required Lenders".
7. Section 10.03 of the Credit Agreement is hereby amended by adding
",Section 8.11" immediately following the reference to "Section 8.09" contained
therein.
B. LIMITED FORBEARANCE AND WAIVER
1. Effective as of the Third Amendment Effective Date, the Lenders
hereby waive (a) the requirements that the Borrower deliver (i) the monthly
reports and other items required under Section 8.01(c) of the Amended Agreement
and (ii) the budget and other items required under Section 8.01(d) of the
Amended Agreement for the 2002 fiscal year, (b) any breach by the Borrower of
Section 8.01(f) of the Amended Agreement for failure to deliver notice of the
commencement of the litigation listed on Annex A hereto, (c) the restrictions
imposed under Section 9.02 of the Amended Agreement to permit the sale of the
Northeast Assets as contemplated pursuant to the Northeast Asset Sale Agreement
and (d) the requirement imposed under Section 5.02(d) of the Amended Agreement
to permit all of the Net Cash
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Proceeds of such sale of the Northeast Assets to be applied as set forth in this
Amendment, and hereby authorize and request the Collateral Agent to (X) deliver
to the Borrower at the closing of such Asset Sale all applicable UCC-3
termination statements requested by the Borrower and (Y) release any Lien
granted to or held by the Collateral Agent or the Lenders securing Obligations
under the Credit Documents to the extent that such Lien covers such Northeast
Assets (which release shall be deemed to occur automatically upon receipt by the
Borrower of the consideration under the Northeast Asset Sale Agreement for the
Northeast Assets); PROVIDED, that the Borrower shall (i) repay Loans with
Northeast Asset Sale Cash Proceeds to the extent required under Section 5.02(d)
and (ii) deliver, pledge and assign any and all Choice One Stock to the
Collateral Agent (for the benefit of the Secured Creditors) in accordance with
the requirements of Section 8.11 of the Amended Agreement.
2. Subject to the terms and conditions set forth herein and in reliance
on the representations and warranties of the Borrower and the Credit Parties
herein contained, the Lenders hereby agree to forbear, from the Third Amendment
Effective Date until the earlier of (x) March 31, 2002 and (y) the date of
occurrence of a Forbearance Period Default (as hereinafter defined; the earlier
of such dates being the "FORBEARANCE TERMINATION DATE") from exercising remedies
pursuant to Section 10 of the Amended Agreement based upon (I) any Events of
Default under Section 10.03 of the Amended Agreement to the extent arising as a
result of (a) a breach of Section 9.05 of the Amended Agreement for the period
ending December 31, 2001, to the extent such breach arises solely as a result of
a change in accounting treatment with respect to expenditures incurred prior to
December 31, 2001, (b) a breach of Section 9.11 or 9.12 of the Amended
Agreement, whether such breach has occurred prior to the Third Amendment
Effective Date or arises after the Third Amendment Effective Date and prior to
the Forbearance Termination Date, or (c) a breach of Section 9.14 of the Amended
Agreement, to the extent such breach would not occur but for Extended Payables
Indebtedness being included in Consolidated Debt (the Events of Default
described in clauses (I)(a) through (I)(c) being, collectively, the "COVENANT
DEFAULTS"); (II) any Event of Default under Section 10.04(a) or (b) of the
Amended Agreement to the extent such Event of Default would not occur but for
Extended Payables Indebtedness becoming Indebtedness, whether such Event of
Default has occurred prior to the Third Amendment Effective Date or arises after
the Third Amendment Effective Date and prior to the Forbearance Termination
Date; PROVIDED, that Extended Payables Indebtedness, for purposes of this clause
(II), shall exclude any accounts payable with respect to which the payee thereof
has commenced or prosecuted any remedy against the Borrower or any of its
Subsidiaries or any of their properties (the Events of Default described in this
clause (II) being, collectively, the "PAYABLES DEFAULTS"); and (III) any Event
of Default under Section 10.07(b) of the Amended Agreement (whether such Event
of Default has occurred prior to the Third Amendment Effective Date or arises
after the Third Amendment Effective Date and prior to the Forbearance
Termination Date), except to the extent such Event of Default affects the
Collateral Agent and the Lenders adversely after the Third Amendment Effective
Date with respect to a material portion of the Collateral or the Choice One
Stock pledged under the Amended and Restated Pledge Agreement (the Events of
Default described in this clause (III) being, collectively, the "SECURITY
DOCUMENT DEFAULTS"). On the Forbearance Termination Date, the agreement to
forbear set forth in the immediately preceding sentence shall be deemed null and
void as of the date hereof and of no further force and effect, without any
necessity of demand or notice, and on and after the Forbearance Termination
Date, the Lenders may declare a Default (or Event of Default, as the case may
be) and exercise remedies (including
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without limitation the right to accelerate the Loan and all other Obligations
immediately to the extent that such acceleration could have occurred on or prior
to such date but for such agreement to forbear, notwithstanding any grace or
cure periods or other provisions to the contrary in the Credit Documents)
pursuant to Section 10 of the Amended Agreement with respect to any Covenant
Default, Payables Default or Security Document Default (in each case as if the
foregoing agreement to forbear had never been in effect), or any other Defaults
or Events of Default. As used in this Section, "FORBEARANCE PERIOD DEFAULT"
shall mean any Event of Default other than the Covenant Defaults, the Payables
Defaults or the Security Document Defaults; and "EXTENDED PAYABLES INDEBTEDNESS"
shall mean any Indebtedness consisting of accounts payable which are outstanding
prior to December 31, 2001 and become "Indebtedness" after December 31, 2001 due
to failure to pay such accounts payable within 90 days of the date such amounts
are due and payable.
C. LIMITATION OF FORBEARANCE AND WAIVERS
The forbearance, waivers and authorizations set forth above shall be
limited precisely as written and shall relate solely to the Borrower's
non-compliance with the provisions of the Credit Agreement in the manner and to
the extent described above, and shall in no event (1) amend or constitute a
waiver of compliance by the Borrower with respect to (a) Section 5.02(d),
8.01(c), 8.01(d), 8.01(f) or 9.02 of the Credit Agreement or the Amended Credit
Agreement (as the case may be) in any other instance, (b) Section 10.03,
10.04(a), 10.04(b) or 10.07(b) or any other term, provision or condition of the
Credit Agreement or the Amended Agreement (as the case may be), (c) the other
Credit Documents, or (d) any other instrument or agreement referred to therein,
or (2) except for the forbearance expressly provided for herein, prejudice any
right or remedy that the Administrative Agent or any Lender may now have or may
have in the future under or in connection with the Credit Agreement, the other
Credit Documents, any other instrument or agreement referred to therein or under
applicable law. Except as expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement and the other Credit Documents shall remain
in full force and effect and in all other respects are hereby ratified and
confirmed.
D. ACKNOWLEDGMENT AND CONSENT
1. The Security Documents and the Credit Documents to which the
Borrower and other Credit Parties are party are herein referred to collectively
as the "CREDIT SUPPORT DOCUMENTS". Each Credit Party (other than the Parent)
which is party to this Third Amendment (each a "CREDIT SUPPORT PARTY", and
collectively, "CREDIT SUPPORT PARTIES") hereby acknowledges that it has reviewed
the terms and provisions of the Credit Agreement and this Amendment. Each such
Credit Support Party hereby confirms that each Credit Support Document to which
it is a party or otherwise bound and all Collateral encumbered thereby (after
giving effect to the transactions contemplated hereby) will continue to guaranty
or secure, as the case may be, to the fullest extent set forth therein the
payment and performance of all "Guaranteed Obligations" and "Obligations" as the
case may be (in each case as such terms are defined in the applicable Credit
Support Document), including without limitation the payment and performance of
all such "Guaranteed Obligations" or "Obligations", as the case may be, in
respect of the Obligations of the Borrower now or hereafter existing under or in
respect of the Credit Agreement as amended by this Amendment (the "AMENDED
AGREEMENT") and the other
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Credit Documents. Each such Credit Support Party acknowledges and agrees that
any of the Credit Support Documents to which it is a party or otherwise bound
shall continue in full force and effect and that all of its obligations
thereunder shall be valid and enforceable and shall not be impaired or limited
by the execution or effectiveness of this Amendment. Each Credit Support Party
(other than the Borrower) acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such Credit Support
Party is not required by the terms of the Credit Agreement or any other Credit
Document to consent to this Amendment, and (ii) nothing in the Amended
Agreement, this Amendment or any other Credit Document shall be deemed to
require the consent of such Credit Support Party to any future consents or
waivers to the Amended Agreement.
2. No Agent nor any Lender has or shall have, by reason of this
Amendment, the Credit Agreement or the other Credit Documents, a fiduciary
relationship in respect of the Borrower, any other Credit Party or Credit
Parties.
3. Each Credit Support Party hereby confirms, reaffirms and
acknowledges (i) that the Collateral Agent (for the benefit of the Secured
Creditors (as defined in each of the Credit Support Documents)) has a fully
perfected first Lien on, and security interest in, all right, title and interest
of such Credit Support Party in the Collateral (it being understood that such
security interest in the Northeast Assets shall be released as contemplated
hereby), subject to no other Liens (other than Permitted Liens) and (ii) the
continuing validity and effectiveness of the Collateral Agent's and Secured
Creditors' rights under the Credit Documents and applicable law.
4. Except as expressly set forth in this Amendment, each of the
undersigned hereby acknowledges and agrees that the execution and delivery by
any Agent and the Lenders of this Amendment shall not be deemed (i) to create a
course of dealing or otherwise obligate any Agent or the Lenders to forbear or
execute similar agreements under the same or similar circumstances in the
future, (ii) to modify, relinquish or impair any right of any Agent or the
Lenders to receive any indemnity or similar payment from, or exercise any rights
granted by, any Person or entity as a result of any matter arising from or
relating to this Amendment, (iii) to waive any right of the Lenders to receive
interest at an increased rate as a result of any Events of Default that may
occur under the Credit Agreement, (iv) to obligate any Agent or the Lenders in
any way to forbear from individually or collectively enforcing remedies under
the Credit Agreement in any manner or (v) a commitment from or of any Agent or
the Lenders to forbear or "stand still". Except as expressly set forth in this
Amendment, no past or future forbearance on the part of any Agent or the Lenders
should be viewed as a limitation upon or waiver of the absolute right and
privilege of any Agent or the Lenders in exercising rights and remedies that
currently exist or may exist after the Third Amendment Effective Date.
E. ACKNOWLEDGMENT BY PARENT
The Parent hereby acknowledges and agrees that the execution, delivery
and effectiveness of this Amendment do not impair, limit or otherwise affect
adversely to the Lenders the Parent's obligations under the Amended and Restated
Preferred Stock Issuance and Capital Contribution Agreement.
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F. MISCELLANEOUS PROVISIONS
1. In order to induce the Lenders to enter into this Amendment, the
Borrower hereby represents and warrants that (i) the representations and
warranties contained in the Credit Agreement and in the other Credit Documents
are true and correct in all material respects on and as of the Third Amendment
Effective Date (except (a) with respect to any representations and warranties
limited by their terms to a specific date, which shall be true and correct in
all material respects as of such date, (b) to the extent such representations
and warranties are not true and correct solely as a result of the Northwest
Asset Sale, and (c) to the extent that the representations and warranties in
Section 7.04 of the Credit Agreement are not true or correct solely due to those
pending or threatened proceedings described in Annex A and Annex B hereto) and
(ii) there exists no Default or Event of Default under the Credit Agreement on
the Third Amendment Effective Date, in each case both before and after giving
effect to this Amendment.
2. This Amendment is limited as specified and shall not constitute an
amendment, modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document, and, except as expressly set
forth herein, no waiver or amendment contained herein shall be deemed to
prejudice any right or remedy that any Agent or Lender may now have or may have
in the future under or in connection with the Credit Agreement or any other
agreement or instrument referred to therein. Each of the Agents and Lenders
hereby expressly reserves all such rights and remedies.
3. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the "THIRD
AMENDMENT EFFECTIVE DATE") when (i) the Borrower, the other Credit Parties, the
Administrative Agent, the Collateral Agent and the Lenders shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of telecopier) the same to the Administrative Agent
at the Notice Office, and (ii) the Borrower shall have delivered to the
Administrative Agent a certificate of an Authorized Officer of the Borrower
certifying that the projections in the Weekly Cash Budget are based on good
faith estimates and assumptions believed by the Borrower to be reasonable on the
Third Amendment Effective Date.
6. The Borrower acknowledges that all reasonable out-of-pocket costs
and expenses as described in Section 12.01 of the Credit Agreement incurred by
the Agents (including, without limitation, the reasonable fees and disbursements
of O'Melveny & Xxxxx LLP) with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of the Borrower.
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7. From and after the Third Amendment Effective Date, all references in
the Credit Agreement and in the other Credit Documents to the Credit Agreement
shall be deemed to be references to the Amended Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be duly executed and delivered as of the date first above written.
CREDIT PARTIES: FAIRPOINT COMMUNICATIONS
SOLUTIONS CORP.
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President & CFO
FAIRPOINT COMMUNICATIONS
SOLUTIONS CORP. - NEW YORK
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President & CFO
FAIRPOINT COMMUNICATIONS
SOLUTIONS CORP. - VIRGINIA
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President & CFO
FAIRPOINT SOLUTIONS CAPITAL, LLC
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President & CFO
FAIRPOINT COMMUNICATIONS, INC. (for purposes
of Section F only)
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Senior Vice President & CFO
S-1
LENDERS: BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
BANKERS TRUST COMPANY
By: /s/ Xxxx Xxxxxx
-----------------
Name: Xxxx Xxxxxx
Title: Director
FIRST UNION NATIONAL BANK,
individually and as Administrative Agent and
Collateral Agent
By: /s/ Xxxxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
CITICORP USA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President
DLJ CAPITAL FUNDING, INC.
By: /s/ Xxxxx X. Xxxxxx & /s/ Xxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx / Xxx X. Xxxxxx
Title: Vice President / Associate
COBANK, ACB
By: /s/ Xxxx X. Xxxx
------------------
Name: Xxxx X. Xxxx
Title: Vice President
S-2
CIT GROUP/EQUIPMENT FINANCING, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
S-3
ANNEX A
LITIGATION
A-1
ANNEX B
THREATENED PROCEEDING
B-1
