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Exhibit 10.2
AMENDMENT AND RESTATEMENT
Dated as of December 18, 1998
of
U.S. $500,000,000
364-DAY CREDIT AGREEMENT
Dated as of May 28, 1997
Among
THE KROGER CO.
as Borrower
-----------
and
THE LENDERS PARTIES THERETO
as Lenders
----------
and
CHASE SECURITIES INC.
as Lead Arranger and Book Manager
---------------------------------
and
CITIBANK, N.A.
and
THE CHASE MANHATTAN BANK
as Administrative Agents
------------------------
and
FIRST CHICAGO CAPITAL MARKETS, INC.
as Syndication Agent
--------------------
and
THE BANK OF NEW YORK
as Documentation Agent
----------------------
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AMENDMENT AND RESTATEMENT, dated as of December 18, 1998 (this
"AMENDMENT"), of the 364-Day Credit Agreement, dated as of May 28, 1997 (as
amended, the "CREDIT AGREEMENT"), among THE KROGER CO., an Ohio corporation (the
"BORROWER"), the several banks and other financial institutions from time to
time parties to the Credit Agreement (the "LENDERS"), CHASE SECURITIES INC.,
("CSI"), as Lead Arranger and Book Manager (in such capacity, the "LEAD ARRANGER
AND BOOK MANAGER"), CITIBANK, N.A. ("CITIBANK"), as an administrative agent (in
such capacity, an "ADMINISTRATIVE AGENT") for the Lenders and the Issuing Banks
(as defined in the Credit Agreement) and paying agent for the Lenders and the
Issuing Banks (in such capacity, the "PAYING AGENT"), THE CHASE MANHATTAN BANK
("CHASE"), as an administrative agent (in such capacity, an "ADMINISTRATIVE
AGENT"; the Administrative Agents and Paying Agent, collectively, the "AGENTS")
for the Lenders and the Issuing Banks, FIRST CHICAGO CAPITAL MARKETS, INC., as
syndication agent for the Lenders and the Issuing Banks, and THE BANK OF NEW
YORK, as documentation agent for the Lenders and the Issuing Banks.
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, the Borrower has agreed, subject to certain
conditions, to acquire all of the common stock of Fred Meyer, Inc. ("FMI") in
exchange for newly issued shares of the Borrower pursuant to a merger of a
wholly owned subsidiary of the Borrower into FMI (the "ACQUISITION");
WHEREAS, the Borrower has requested and, upon the
effectiveness of this Amendment and the consummation of the Acquisition, the
Required Lenders have agreed, that certain provisions of the Credit Agreement be
amended and that the Credit Agreement be restated upon the terms and conditions
set forth below to permit the consummation of the Acquisition;
WHEREAS, concurrent with the consummation of the Acquisition,
the Borrower shall cause FMI and the subsidiaries of FMI that are Material
Subsidiaries of the Borrower to guarantee the obligations of the Borrower under
the Credit Agreement, all as contemplated by the Credit Agreement;
WHEREAS, in connection with the Acquisition, the Borrower and
its Material Subsidiaries intend to guarantee FMI's obligations with respect to
its existing credit facilities; and
WHEREAS, the Borrower has further requested CSI to act as Lead
Arranger and Book Manager with respect to this Amendment;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement. Unless otherwise indicated, all Section and subsection references are
to the Credit Agreement.
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SECTION 2. AMENDMENTS TO SECTION 1.01. Section 1.01 of the
Credit Agreement is hereby amended as follows:
(a) by amending and restating the definition of "APPLICABLE
MARGIN" to read in its entirety as follows:
"APPLICABLE MARGIN" means, until the day which is six months
after the Amendment and Restatement Effective Date, the rate
per annum set forth opposite Level 4 in the relevant Table
below, and, thereafter, as of any date prior to the Term Loan
Conversion Date, a percentage per annum determined by
reference to the Borrower's Performance Level in effect on
such date as set forth below:
==============================================================================================
Performance Level Applicable Margin for Applicable Margin for
Base Rate Advances Eurodollar Advances
- ----------------------------------------------------------------------------------------------
Level 1 0.000% 0.305%
- ----------------------------------------------------------------------------------------------
Level 2 0.000% 0.420%
- ----------------------------------------------------------------------------------------------
Level 3 0.000% 0.525%
- ----------------------------------------------------------------------------------------------
Level 4 0.000% 0.600%
- ----------------------------------------------------------------------------------------------
Level 5 0.000% 0.675%
- ----------------------------------------------------------------------------------------------
Level 6 0.000% 0.750%
==============================================================================================
and, as of the date on or after the Term Loan Conversion Date,
a percentage per annum determined by reference to the
Borrower's Performance Level in effect on such date as set
forth below:
==============================================================================================
Performance Level Applicable Margin for Applicable Margin for
Base Rate Advances Eurodollar Advances
- ----------------------------------------------------------------------------------------------
Level 1 0.000% 0.375%
- ----------------------------------------------------------------------------------------------
Level 2 0.000% 0.500%
- ----------------------------------------------------------------------------------------------
Level 3 0.000% 0.625%
- ----------------------------------------------------------------------------------------------
Level 4 0.000% 0.750%
- ----------------------------------------------------------------------------------------------
Level 5 0.000% 0.875%
- ----------------------------------------------------------------------------------------------
Level 6 0.000% 1.000%
==============================================================================================
(b) by amending and restating the definition of "FACILITY FEE
PERCENTAGE" to read in its entirety as follows:
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"FACILITY FEE PERCENTAGE" means, until the day which
is six months after the Amendment and Restatement Effective
Date, 0.150% per annum and, thereafter, a percentage per annum
determined by reference to the Borrower's Performance Level in
effect on such date as set forth below:
===========================================================================
Performance Level Facility Fee Percentage
- ---------------------------------------------------------------------------
Level 1 0.070%
- ---------------------------------------------------------------------------
Level 2 0.080%
- ---------------------------------------------------------------------------
Level 3 0.100%
- ---------------------------------------------------------------------------
Level 4 0.150%
- ---------------------------------------------------------------------------
Level 5 0.200%
- ---------------------------------------------------------------------------
Level 6 0.250%
===========================================================================
(c) by amending and restating the definition of "PERFORMANCE
LEVEL" to read in its entirety as follows:
"PERFORMANCE LEVEL" means, as of any date of determination,
the numerically lowest level set forth below as then in
effect, as determined in accordance with the following
provisions of this definition:
Level 1 The Public Debt Rating by Moody's is
A3 or better or the Public Debt
Rating by S&P is A- OR better or the
Applicable Percentage Ratio is
5.25:1.00 or greater;
Level 2 The Public Debt Rating by Moody's is
Baa1 or the Public Debt Rating by
S&P is BBB+ OR the Applicable
Percentage Ratio is 4.75:1.00 or
greater but less than 5.25:1.00;
Level 3 The Public Debt Rating by Moody's is
Baa2 or the Public Debt Rating by
S&P is BBB OR the Applicable
Percentage Ratio is 4.00:1.00 or
greater but less than 4.75:1.00;
Level 4 The Public Debt Rating by Moody's is
Baa3 and the Public Debt Rating by
S&P is BBB- OR the Applicable
Percentage Ratio is less than
4.00:1.00;
Level 5 The Public Debt Rating by Moody's is
Baa3 or the Public Debt Rating by
S&P is BBB- OR the Applicable
Percentage Ratio is less than
4.00:1.00; and
Level 6 The Public Debt Rating by Moody's is
Ba1 or lower or the Public Debt
Rating by S&P is BB+ or lower AND
the Applicable Percentage Ratio is
lower than 4.00:1.00;
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PROVIDED (a) if any rating established or deemed to have been
established by S&P or Moody's shall be changed (other than as
a result of a change in the rating system of either S&P or
Moody's), such change shall be effective as of the date on
which such change is first announced publicly by the rating
agency making such change, (b) any change in the Performance
Level based on a change in the Applicable Percentage Ratio
shall be effective for all purposes on and after the date of
delivery to the Administrative Agents of a certificate of the
Borrower with respect to the financial statements to be
delivered, as applicable, pursuant to Section 5.01(h) for the
most recently ended Fiscal Quarter, (c) if the Public Debt
Ratings by Moody's and S&P and the Applicable Percentage Ratio
shall fall within different Levels, the Applicable Margin and
Facility Fee Percentage shall be determined based upon the
lower Level unless the Levels determined based upon the Public
Debt Ratings and Applicable Percentage Ratio are two or more
Levels apart, in which case the Applicable Margin and Facility
Fee Percentage shall be determined by reference to the Level
next below the higher of the two Levels (it being understood
that Level 1 is the lowest Level and Level 6 is the highest
Level), (d) if the Applicable Percentage Ratio shall fall
within Level 4 and Level 5, the Applicable Percentage Ratio
shall be deemed to fall within Level 4 and (e) notwithstanding
the foregoing provisions of clause (a), no reduction in the
Performance Level shall be effective if any Default shall have
occurred and be continuing. Any change in the Performance
Level shall be effective on the effective date of such change
in the applicable Performance Level and shall apply to all
Eurodollar Rate Advances made or continued on or after the
commencement of the period (and to Base Rate Advances that are
outstanding at any time during the period) commencing on the
effective date of such change in the applicable Performance
Level and ending on the date immediately preceding the
effective date of the next such change in the applicable
Performance Level.
(d) by amending and restating the definition of "PUBLIC DEBT
RATING" to read in its entirety as follows.
"PUBLIC DEBT RATING" means, as of any date, the
rating that has been most recently announced by either S&P or
Moody's, as the case may be, for any class of non-credit
enhanced long-term senior unsecured debt issued by the
Borrower. For purposes of the foregoing, (a) if only one of
S&P and Moody's shall have in effect a Public Debt Rating, the
Applicable Margin and the Facility Fee Percentage shall be
determined by reference to the available rating; (b) if
neither S&P nor Moody's shall have in effect a Public Debt
Rating, the Applicable Margin and the Facility Fee Percentage
will be set in accordance with the Applicable Percentage
Ratio; (c) if the ratings established by S&P and Moody's shall
fall within different Levels, the Applicable Margin and the
Facility Fee Percentage shall be determined based upon the
higher rating unless one of the ratings is two or more Levels
lower than the other, in which case the Applicable Margin and
Facility Fee Percentage shall be based upon the ratings
applicable to the Level next above the lower of the two Levels
(it being understood that Level 1 is the lowest Level and
Level 6 is the highest Level); (d) if any rating established
by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first
announced publicly by the rating
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agency making such change; and (e) if S&P or Moody's shall
change the basis on which ratings are established, or either
such rating agency shall cease to be in the business of rating
corporate debt obligations, the Borrower and the Lenders shall
negotiate in good faith to amend this definition to reflect
such changed rating system or the unavailability of ratings
from such rating agency and, pending the effectiveness of such
amendment, the Applicable Margin and Facility Fee Percentage
shall be determined by reference to the rating most recently
in effect prior to such change or cessation.
(e) by inserting the following definitions in the proper
alphabetical order:
"AMENDMENT AND RESTATEMENT" means the Amendment and
Restatement of this Agreement, dated as of December 18, 1998.
"AMENDMENT AND RESTATEMENT EFFECTIVE DATE" means the
Effective Date under the Amendment and Restatement.
SECTION 3. AMENDMENT OF SECTION 4.01. Section 4.01 of the
Credit Agreement is hereby amended by inserting to the end thereof the
following:
"(i) Any material reprogramming required to permit
the proper functioning (but only to the extent that such
proper functioning would otherwise be impaired by the
occurrence of the year 2000) in and following the year 2000 of
material computer systems and other material equipment
containing embedded microchips, in either case owned or
operated by the Borrower or any of its Subsidiaries or used or
relied upon in the conduct of their business (including any
such systems and other equipment supplied by others or with
which the computer systems of the Borrower or any of its
Subsidiaries interface), and the testing of all such systems
and other equipment as so reprogrammed, could not reasonably
be expected to have a Material Adverse Effect. The costs to
the Borrower and its Subsidiaries that have not been incurred
as of the date hereof for such reprogramming and testing and
for the other reasonably foreseeable consequences to them of
any improper functioning of other computer systems and
equipment containing embedded microchips due to the occurrence
of the year 2000 could not reasonably be expected to result in
a Default or Event of Default or to have a Material Adverse
Effect."
SECTION 4. AMENDMENT OF SECTION 5.02(b). Section 5.02(b) of
the Credit Agreement is hereby amended by inserting the words "or into any other
Person (so long as the surviving corporation is a Subsidiary of the Borrower)"
after the phrase "into any other Subsidiary of the Borrower" appearing in such
Section.
SECTION 5. AMENDMENT OF SECTION 5.02(c). Section 5.02(c) of
the Credit Agreement is hereby amended by inserting the following proviso at the
end thereof :
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"; PROVIDED, HOWEVER, that the Borrower may make or permit its
Subsidiaries to make any changes in accounting policies or
reporting practices in order to conform to any policies or
practices of Fred Meyer, Inc. and its Subsidiaries. The
parties acknowledge that the Borrower and its Subsidiaries may
change their fiscal years to conform the fiscal years of the
Borrower and its Subsidiaries (including Fred Meyer, Inc. and
its Subsidiaries)."
SECTION 6. AMENDMENT OF SECTION 5.02(d). Section 5.02(d) of
the Credit Agreement is hereby amended by deleting such Section in its entirety
and substituting the following in lieu thereof:
"SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets, except (i)
dispositions of assets in the ordinary course of its business, (ii) in
a transaction authorized by subsection (b) of this Section, (iii)
pursuant to sale-leaseback transactions for not less than fair market
value, (iv) in a transaction with any Subsidiary that is, or as a
result of such transaction becomes, a Material Subsidiary and (v) sales
of assets for fair value, PROVIDED that the aggregate value of such
assets sold, leased, transferred or otherwise disposed of pursuant to
clause (v) during the term of this Agreement shall not be greater than
10% of the total assets from time to time before giving effect to the
LIFO reserve of Kroger and its Subsidiaries on a Consolidated basis."
SECTION 7. AMENDMENT OF SECTION 6.01. Section 6.01 of the
Credit Agreement is hereby amended by deleting each reference to "$30,000,000"
in paragraphs (d), (f), (i), (j) and (k) and substituting in lieu thereof a
reference to "$40,000,000".
SECTION 8. RESTATEMENT OF CREDIT AGREEMENT. The Credit
Agreement is hereby restated in its entirety to read as set forth in Exhibit A
to this Amendment. The only amendments to the Credit Agreement, as restated, are
those reflected in this Amendment. The exhibits and schedules to the Credit
Agreement have not been amended hereby, and the amount of each Lender's
Commitment is as set forth in the Register.
SECTION 9. REPRESENTATIONS AND WARRANTIES. After giving
effect to this Amendment, the Borrower hereby confirms, reaffirms and restates
in all material respects the representations and warranties set forth in Article
IV of the Credit Agreement as if made on and as of the date hereof except for
any representation or warranty made as of an earlier date, which representation
or warranty shall have been true and correct in all material respects as of such
earlier date. Any reference to "this Agreement" in the representations and
warranties set forth in Article IV of the Credit Agreement shall be deemed to
include a reference to this Amendment.
SECTION 10. LEAD ARRANGER; BOOK MANAGER. CSI shall act as
Lead Arranger and Book Manager with respect to this Amendment. CSI shall be
treated as an "Agent" for the purposes of Article VII (other than Section 7.06)
of the Credit Agreement and shall be entitled to the benefits of Section 8.03(b)
to the same extent as if it were the Administrative Agent.
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SECTION 11. CONDITIONS TO EFFECTIVENESS. This Amendment
shall become effective as of the date (the "EFFECTIVE DATE") of consummation of
the Acquisition upon receipt by the Administrative Agents of (a) counterparts of
this Amendment, duly executed and delivered by the Borrower and the Required
Lenders and (b) an opinion of counsel to the Borrower as to the due
authorization and execution by the Borrower of this Amendment and to such other
matters, as is customary for similar transactions, as may be reasonably
requested by the Administrative Agents. Any increase in the Applicable Margin
and Facility Fee Percentage as a result of this Amendment shall be effective on
the Effective Date and, without limiting the foregoing, shall be applicable to
Eurodollar Rate Advances outstanding under the Credit Agreement as of the
Effective Date for the period from the Effective Date to but not including the
last day of the then current Interest Period with respect thereto.
SECTION 12. PAYMENT OF EXPENSES. The Borrower agrees to pay
or reimburse the Agents for all of their reasonable out-of-pocket costs and
expenses incurred in connection with this Amendment, any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel.
SECTION 13. CONTINUING EFFECT OF CREDIT AGREEMENT;
TERMINATION OF AMENDMENT. Except as expressly amended herein, the Credit
Agreement shall continue to be, and shall remain, in full force and effect in
accordance with its terms. This Amendment shall terminate and be of no further
force and effect upon the termination of the Agreement and Plan of Merger, dated
as of October 18, 1998, by and between the Borrower, Jobsite Holdings, Inc. and
FMI.
SECTION 14. GOVERNING LAW; COUNTERPARTS. THIS AMENDMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Amendment may be executed by the parties hereto in any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. The execution and delivery of this
Amendment by any Lender on or prior to the Effective Date shall be binding upon
each of its transferees, successors and assigns and binding in respect of all of
its Commitments and Advances, including any acquired subsequent to its execution
and delivery hereof and prior to the effectiveness hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
THE KROGER CO.
By: /s/ Lawrence M. Turner
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Title: Vice President and Treasurer
CITIBANK, N.A., as Administrative Agent, Issuing
Bank and Lender
By: /s/ Robert A. Snell
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Title: As Attorney in Fact
THE CHASE MANHATTAN BANK, as
Administrative Agent, Issuing Bank and Lender
By: /s/ William P. Rindfuss
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Title: Vice President
CHASE SECURITIES INC., as Lead Arranger and
Book Manager
By: /s/ Ruth Stritehoff
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Title: Managing Director
THE FIRST NATIONAL BANK OF CHICAGO, as
Syndication Agent and Lender
By: /s/ Catherine A. Muszynski
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Title: Vice President
THE BANK OF NEW YORK, as Documentation
Agent and Lender
By: /s/ Paula Began
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Title: Vice President
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BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION, as successor by merger
to Bank of America Illinois, as Lender
By: /s/ Jody A. Pritchard
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Title: Vice President
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BANK OF MONTREAL, as Lender
By: /s/ Leon H. Sinclair
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Title: Director
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THE BANK OF NOVA SCOTIA, as Lender
By: /s/ F.C.H. Ashby
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Title: Senior Manager Loan Operations
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as Lender
By: /s/ Hajime Watanabe
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Title: Deputy General Manager
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BANK ONE, N.A., as Lender
By: /s/ Rebecca McCloskey
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Title: First Vice President
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BANKERS TRUST COMPANY, as Lender
By: /s/ David J. Bell
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Title: Vice President
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CREDIT AGRICOLE INDOSUEZ, as Lender
By: /s/ David Bouhl, FVP
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Title: Head of Corporate Banking Chicago
By: /s/ Dean Balice
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Title: Senior Vice President
Branch Manager
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CIBC, INC., as Lender
By:
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Title:
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COMERICA BANK, as Lender
By: /s/ Lee J. Santioni
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Title: First Vice President
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COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE, as Lender
By: /s/ Eric Lonquet
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Title: Vice President
By: /s/ Martha Skidmore
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Title: Vice President
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CREDIT LYONNAIS, CHICAGO BRANCH, as Lender
By: /s/ Mary Ann Klemm
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Title: Vice President
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THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH, as Lender
By:
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Title:
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FIFTH THIRD BANK, as Lender
By: /s/ Andrew Hauck
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Title: Vice President
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FIRST AMERICAN NATIONAL BANK,
as Lender
By: /s/ Jerry Watterworth
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Title: Senior Vice President
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FIRST HAWAIIAN BANK, as Lender
By: /s/ Charles L. Jenkins
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Title: Vice President, Manager
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FIRST UNION NATIONAL BANK, as Lender
By: /s/ Mary J. Amatore
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Title: Vice President
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THE FUJI BANK, LIMITED, CHICAGO
BRANCH, as Lender
By:
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Title:
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THE INDUSTRIAL BANK OF JAPAN, LIMITED,
CHICAGO BRANCH, as Lender
By: /s/ Walter Wolff
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Title: Joint General Manager
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KREDIETBANK, N.V., as Lender
By:
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Title:
By:
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Title:
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THE LONG TERM CREDIT BANK OF JAPAN,
LTD., CHICAGO BRANCH, as Lender
By:
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Title:
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MELLON BANK, N.A., as Lender
By: /s/ Richard J. Schaich
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Title: Assistant Vice President
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MICHIGAN NATIONAL BANK, as Lender
By:
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Title:
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MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Lender
By: /s/ Robert Bottamedi
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Title: Vice President
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THE NORTHERN TRUST COMPANY, as Lender
By:
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Title:
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PARIBAS, as Lender
By: /s/ Karen E. Coons
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Title: Vice President
By: Ann B. McAloon
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Title: Vice President
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PNC BANK, N.A., as Lender
By: /s/ C. J. Richardson
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Title: Senior Vice President
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THE SAKURA BANK, LIMITED, as Lender
By:
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Title:
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THE SANWA BANK, LIMITED, CHICAGO
BRANCH, as Lender
By:
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Title:
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STAR BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ Derek S. Roudebush
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Title: Vice President
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THE SUMITOMO BANK, LIMITED, CHICAGO
BRANCH, as Lender
By:
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Title:
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THE TOKAI BANK, LIMITED-NEW YORK
BRANCH, as Lender
By: /s/ M. Nakamura
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Title: Joint General Manager
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U.S. BANK, as Lender
By: /s/ Thomas W. Cherry
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Title: Vice President
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WACHOVIA BANK, N.A., as Lender
By: /s/ Brad Watkins
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Title: Vice President