1 Exhibit 10.10 AMENDMENT AND RESTATEMENT Dated as of December 18, 1998 of U.S. $3,500,000,000 LOAN AGREEMENT Dated as of March 11, 1998 Among FRED MEYER, INC. as Borrower and THE LENDERS PARTY THERETO as Lenders and CHASE SECURITIES INC. as Lead Arranger and Book Manager and BANKERS TRUST COMPANY as Administrative Agent and THE CHASE MANHATTAN BANK as Syndication Agent and NATIONSBANK OF TEXAS, N.A. and SALOMON BROTHERS HOLDING CO INC. as Co-Documentation Agents 2 AMENDMENT AND RESTATEMENT, dated as of December 18, 1998 (this "Amendment"), of the Loan Agreement, dated as of March 11, 1998 (as amended, the "Loan Agreement"), among FRED MEYER, INC., a Delaware corporation (the "Borrower"), the several banks and other financial institutions from time to time parties to the Loan Agreement (the "Lenders"), CHASE SECURITIES INC. ("CSI"), as Lead Arranger and Book Manager (in such capacity, the "Lead Arranger and Book Manager"), BANKERS TRUST COMPANY ("Bankers Trust"), as Administrative Agent, THE CHASE MANHATTAN BANK ("Chase"), as Syndication Agent, and NATIONSBANK OF TEXAS, N.A. and SALOMON BROTHERS HOLDING CO INC., as Co-Documentation Agents. W I T N E S S E T H : WHEREAS, The Kroger Co. ("Kroger") has agreed, subject to certain conditions, to acquire all of the outstanding common stock of the Borrower in exchange for newly issued shares of common stock of Kroger pursuant to a merger of a wholly owned subsidiary of Kroger into the Borrower (the "Acquisition"); WHEREAS, in connection with the Acquisition, the Borrower has requested and upon the effectiveness of this Amendment, the Required Lenders have agreed, that certain provisions of the Loan Agreement be amended and that the Loan 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, Kroger and each of its other material subsidiaries will guarantee the obligations of the Borrower under the Loan Agreement; 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 Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. Unless otherwise indicated, all Article, Section and subsection references are to the Loan Agreement. SECTION 2. Amendments to Section 1.1. Section 1.1 of the Loan Agreement is hereby amended as follows: (a) by amending and restating the following definitions appearing therein to read in their entireties as follows: "Change in Control" means any one or more of the following events: (a) the acquisition, by contract or otherwise (including the entry into a contract or arrangement that upon consummation will result in such acquisition), 3 2 by any Person or group (as such term is defined for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations pertaining thereto), other than the trusts for the employee benefit plans (as defined in Section 3(2) of ERISA) maintained by Kroger or any subsidiary of Kroger that is an ERISA Affiliate, of beneficial ownership (within the meaning of Rule 13d-3, or any regulation or ruling promulgated to replace or supplement Rule 13d-3, of the General Rules and Regulations under the Exchange Act), directly or indirectly, of securities of Kroger representing 20% or more of the voting power of all securities of Kroger, (b) during any period of up to 24 consecutive months, commencing before or after the date of this Agreement, individuals who at the beginning of such period were directors of Kroger (together with any new directors whose election by the board of directors of Kroger or whose nomination for election by the stockholders of Kroger was approved by a vote of at least 75% of the directors then in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease for any reason to constitute at least 75% of the board of directors of Kroger, or (c) Kroger shall cease to own, directly or indirectly, all of the issued and outstanding capital stock of the Borrower. "ERISA Affiliate" of a Person means any trade or business (whether or not incorporated) that, together with such Person, is treated as a single employer under Section 414 of the Code. "Material Adverse Effect" means a (a) materially adverse effect on the business, assets, operations, properties, prospects or condition (financial or otherwise) of Kroger and its subsidiaries, taken as a whole, (b) material impairment of the ability of the Borrower to perform any of its obligations under any Loan Document to which it is or will be a party or (c) material impairment of the rights of or benefits available to the Agents, the Issuing Banks or the Lenders under any Loan Document. "Plan" means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which Kroger or any ERISA Affiliate of Kroger is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA. "subsidiary" of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation 4 3 shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other subsidiaries or by one or more of such Person's other subsidiaries. (b) by deleting therefrom the following definitions in their respective entireties: "Consolidated EBITDAR"; "Consolidated Interest Expense"; "Disclosed Matters"; "Employee Benefit Plan"; "ERISA Event"; "Excess Cash Flow"; "Fixed Charge Coverage Ratio"; "Guaranteed Pension Plan"; "Material Subsidiary"; "Net Cash Proceeds"; "Permitted Investments"; "Public Notes"; "Restricted Payment"; "Smith's"; "Surety Instruments"; "Tangible Net Assets"; and "Tendered Bonds". (c) by adding thereto the following definitions in the appropriate alphabetical order: "Kroger" means The Kroger Co., an Ohio corporation. "Kroger Guarantee" means the Guarantee dated as of December 18, 1998 executed by Kroger and each of the Kroger Material Subsidiaries. "Kroger Guarantor" means Kroger and each Kroger Material Subsidiary which has executed the Kroger Guarantee. "Kroger Material Subsidiary" has the meaning assigned to the term "Material Subsidiary" in Section 1 of the Kroger Guarantee. "Reportable Event" means any reportable event as defined in Section 4043(b) of ERISA or the regulations issued thereunder with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code). SECTION 3. Amendment to Section 2.11. Section 2.11 of the Loan Agreement is hereby amended by adding the following sentence at the end of paragraph (b) thereof: "Optional prepayments of the Term Loans under this Section 2.11 shall reduce the quarterly payments required under Section 2.1 in the scheduled order of maturity." SECTION 4. Amendment to Section 2.20. Section 2.20 of the Loan Agreement is hereby amended by deleting such Section in its entirety. SECTION 5. Amendments to Article III. Article III of the Loan Agreement is hereby amended by (a) deleting Sections 3.4, 3.5, 3.6, 3.7, 3.9, 3.10, 3.14, 3.15 and 3.16 of such Article in their entireties, (b) redesignating Sections 3.8, 3.11, 3.12, 3.13 and 3.17 of such Article as Sections 3.4, 3.5, 3.6, 3.7 and 3.8, respectively and (c) deleting, in the new Section 3.7, the reference to "Section 5.8" and substituting in lieu thereof a reference to "Section 5.2". 5 4 SECTION 6. Amendment to Section 4.2. Section 4.2 of the Loan Agreement is hereby amended by amending and restating paragraph (b) thereof to read in its entirety as follows: "(b) The representations and warranties of the Borrower set forth in this Agreement and of Kroger set forth in the Kroger Guarantee shall be true and correct on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as the case may be." SECTION 7. Amendments to Article V. Article V of the Loan Agreement is hereby amended by (a) deleting Sections 5.2, 5.3, 5.4, 5.5, 5.6 and 5.7 of such Article in their entireties, (b) redesignating Sections 5.8, 5.9 and 5.10 as Sections 5.2, 5.3 and 5.4, respectively and (c) inserting a new Section at the end thereof to read in its entirety as follows: "Section 5.5 Certain Covenants. (a) The Borrower shall, and shall cause its Subsidiaries, to comply with the covenants set forth in Section 8 of the Kroger Guarantee to the extent applicable. (b) The Borrower will furnish to the Administrative Agent and each Lender prompt written notice of the occurrence of any Default upon actual notice of a Responsible Officer of the Borrower." SECTION 8. Amendments to Article VI. Article VI of the Loan Agreement is hereby amended by deleting all Sections of such Article in their entireties and substituting in lieu thereof the following new Section: "Section 6.1 Guarantee Covenants. The Borrower shall, and shall cause its Subsidiaries, to comply with the covenants set forth in Section 9 of the Kroger Guarantee to the extent applicable." SECTION 9. Amendments to Article VII. Article VII of the Loan Agreement is hereby amended as follows: (a) by inserting the words "or any Kroger Guarantor" after the words "any Subsidiary" in paragraph (c) of such Article; (b) by amending and restating paragraph (d) to read in its entirety as follows: "(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Sections 5.2, 5.5(a) (with respect to the maintenance of the Borrower's existence) or 5.5(b) or in Section 6.1; or"; (c) by deleting paragraphs (f) through (k) thereof and substituting in lieu thereof the following new paragraphs: "(f) Kroger or any of its subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal or notional amount of at least $40,000,000 in the aggregate (but excluding Debt outstanding 6 5 hereunder) of Kroger or such subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or (g) Kroger or any of its subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against Kroger or any of its subsidiaries seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 30 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or Kroger or any of its subsidiaries shall take any corporate action to authorize any of the actions set forth above in this paragraph (g); or (h) any judgment or order for the payment of money in excess of $40,000,000 shall be rendered against Kroger or any of its subsidiaries and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 10 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of Default under this paragraph (h) if and for so long as (i) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer covering payment thereof and (ii) such insurer, which shall be rated at least "A" by A.M. Best Company, has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order; or 7 6 (i) any non-monetary judgment or order shall be rendered against Kroger or any of its subsidiaries that could be reasonably expected to have a Material Adverse Effect, and there shall be any period of 10 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or (j) a Reportable Event or Reportable Events, or a failure to make a required installment or other payment (within the meaning of Section 412(n)(1) of the Code), shall have occurred with respect to any Plan or Plans that reasonably could be expected to result in liability of Kroger or any of its subsidiaries to the PBGC or to a Plan in an aggregate amount exceeding $40,000,000 and, within 30 days after Kroger has provided written notice of any such Reportable Event to the Administrative Agent, the Administrative Agent shall have notified Kroger in writing that (i) the Required Lenders have determined that, on the basis of such Reportable Event or Reportable Events or the failure to make a required payment, there are reasonable grounds (A) for the termination of such Plan or Plans by the PBGC, (B) for the appointment by the appropriate United States District Court of a trustee to administer such Plan or Plans or (C) for the imposition of a lien in favor of a Plan and (ii) as a result thereof an Event of Default exists hereunder; or a trustee shall be appointed by a United States District Court to administer any such Plan or Plans; or the PBGC shall institute proceedings (including giving notice of intent thereof) to terminate any Plan or Plans; or (k) (A) (i) Kroger or any ERISA Affiliate of Kroger shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan, (ii) Kroger or such ERISA Affiliate does not have reasonable grounds for contesting such Withdrawal Liability or is not in fact contesting such Withdrawal Liability in a timely and appropriate manner and (iii) the amount of the Withdrawal Liability specified in such notice, when aggregated with all other amounts required to be paid to Multiemployer Plans in connection with Withdrawal Liabilities (determined as of the date or dates of such notification), either (x) exceeds $100,000,000 or requires payments exceeding $40,000,000 in any year or (y) is less than $100,000,000 but any Withdrawal Liability payment remains unpaid 30 days after such payment is due (unless such Withdrawal Liability is being contested in good faith by Kroger or any ERISA Affiliate of Kroger), or (B) Kroger or any ERISA Affiliate of Kroger shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, if solely as a result of such reorganization or termination the aggregate contributions of Kroger and its ERISA Affiliates to all Multiemployer Plans that are then in reorganization or have been or are being terminated have been or will be increased over the amounts required to be contributed to such Multiemployer Plans for their most recently completed plan years by an amount exceeding $40,000,000; or"; and 8 7 (d) by inserting the following words at the end of paragraph (m) thereof: ", or Kroger or any other Kroger Guarantor shall fail to comply with the terms and conditions of the Kroger Guarantee and, if such failure occurs with respect to Sections 8 or 11 (to the extent Section 11 applies to Section 8) of the Kroger Guarantee, such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender), or the Kroger Guarantee shall cease for any reason to be in full force and effect (other than pursuant to the terms hereof or thereof) or any Kroger Guarantor or any Person acting by or on behalf of any such Kroger Guarantor shall deny or disaffirm all or any portion of its obligations under the Kroger Guarantee ". SECTION 10. Waiver of Events of Default. Any Default or Event of Default arising out of any Change in Control resulting from the Acquisition is hereby waived. SECTION 11. Restatement of Loan Agreement. The Loan Agreement is hereby restated in its entirety to read as set forth in Exhibit A to this Amendment. The only amendments to the Loan Agreement, as restated, are those reflected in this Amendment. The schedules and exhibits to the Loan Agreement have not been amended hereby, except that the Commitments shall be as set forth in the Register. SECTION 12. 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 III of the Loan 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. For purposes of the representations and warranties set forth in Article III of the Loan Agreement, this Amendment shall be treated as a "Loan Document" and the execution and delivery of this Amendment shall be treated as a "Transaction". SECTION 13. Lead Arranger; Book Manager. CSI shall act as Lead Arranger and Book Manager with respect to this Amendment. SECTION 14. Conditions to Effectiveness. This Amendment shall become effective as of the date (the "Effective Date") of consummation of the Acquisition upon receipt by the Lead Arranger and Book Manager of each of the following: (a) counterparts of this Amendment, duly executed and delivered by the Borrower and the Required Lenders; (b) counterparts of a Guarantee, substantially in the form of Exhibit B to this Amendment (the "Kroger Guarantee"), duly executed and delivered by Kroger and each Kroger Material Subsidiary; 9 8 (c) 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 Lead Arranger and Book Manager; (d) an opinion of counsel to Kroger, as to the due authorization and execution by the Kroger Guarantors of the Kroger Guarantee and to such other matters, as is customary for similar transactions, as may be reasonably requested by the Lead Arranger and Book Manager; (e) such documents and certificates as the Lead Arranger and Book Manager and its counsel may reasonably request relating to this Amendment or the Kroger Guarantee, all in form and substance satisfactory to the Lead Arranger and Book Manager and its counsel; (f) satisfactory evidence that (i) the Current Synthetic Lease Facility of the Borrower has been terminated and all loans outstanding thereunder have been paid in full, (ii) the Commitments have been reduced by $500,000,000 or (iii) a combination thereof resulting in the reduction of Commitments and the commitments under the Current Synthetic Lease Facility in an aggregate amount of $500,000,000; (g) satisfactory evidence that, if the Current Synthetic Lease Facility is not terminated, amendments, in form and substance satisfactory to the Lead Arranger and Book Manager, to the operative documents of such Current Synthetic Lease Facility have been executed and are effective; (h) the surviving corporation following the Acquisition has confirmed in writing its assumption of all of the obligations of the Borrower under the Loan Agreement; and (i) the payment of all fees and other amounts payable in connection with this Amendment. SECTION 15. Payment of Expenses. The Borrower agrees to pay or reimburse the Lead Arranger and Book Manager for all of its 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 16. Continuing Effect of Loan Agreement. Except as expressly amended herein, the Loan 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 Kroger. SECTION 17. 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 10 9 binding in respect of all of its Commitments and Loans, including any acquired subsequent to its execution and delivery hereof and prior to the effectiveness hereof. 11 10 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. FRED MEYER, INC. By: JAMES C. AALBERG ------------------------------------ James C. Aalberg Title: Vice President, Treasurer BANKERS TRUST COMPANY, as Administrative Agent and as a Lender By: MARY KAY COYLE ------------------------------------ Mary Kay Coyle Title: Managing Director THE CHASE MANHATTAN BANK, as Syndication Agent and as a Lender By: WILLIAM P. RINDFUSS ------------------------------------ William P. Rindfuss Title: Vice President CHASE SECURITIES INC., as Lead Arranger and Book Manager By: RUTH STRITEHOFF ------------------------------------ Ruth Stritehoff Title: Managing Director NATIONSBANK OF TEXAS, N.A., as Co-Documentation Agent and as a Lender By: JAMES P. JOHNSON ------------------------------------ James P. Johnson Title: Managing Director 12 11 SALOMON BROTHERS HOLDING CO INC., as Co-Documentation Agent and as a Lender By: ------------------------------------ Title: 13 12 ABN AMRO BANK N.V., as a Lender By: SUSAN HENDRICKSON ------------------------------------ Title: Vice President By: PAUL FAUST ------------------------------------ Title: Vice President 14 13 THE ASAHI BANK, LTD., NEW YORK BRANCH, as a Lender By: /s/ ------------------------------------ Title: Senior Manager 15 14 BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA, NASSAU BRANCH, as a Lender By: ANDREW M. ORSEN ------------------------------------ Andrew M. Orsen Title: Vice President By: TERRY R. HULL ------------------------------------ Terry R. Hull Title: Senior Vice President 16 15 BANKBOSTON, N.A., as a Lender By: /s/ ------------------------------------ Title: Vice President 17 16 BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as a Lender By: JAMES P. JOHNSON ------------------------------------ James P. Johnson Title: Managing Director 18 17 BANK OF HAWAII, as a Lender By: DAVID L. WARD ------------------------------------ Title: Assistant Vice President 19 18 BANK LEUMI U.S.A., as a Lender By: /s/ ------------------------------------ Title: VP/Manager 20 19 BANK OF MONTREAL, as a Lender By: SHEILA C. WEIMER ------------------------------------ Sheila C. Weimer Title: Director 21 20 THE BANK OF NEW YORK, as a Lender By: PAULA REGAN ------------------------------------ Paula Regan Title: Vice President 22 21 BANK OF SCOTLAND, as a Lender By: ANNIE CHIN TAT ------------------------------------ Annie Chin Tat Title: Senior Vice President 23 22 THE BANK OF TOKYO-MITSUBISHI LTD., PORTLAND BRANCH, as a Lender By: M.W. KRINGLEN ------------------------------------ Title: Vice President 24 23 BANQUE NATIONALE DE PARIS, as a Lender By: NICHOLAS ROGERS ------------------------------------ Nicholas Rogers Title: Senior Vice President By: STEPHEN H. CELLA ------------------------------------ Stephen H. Cella Title: Vice President 25 24 BAYERISCHE HYPO-UND VEREINSBANK AG, as a Lender By: ELIZABETH DONAHUE ------------------------------------ Elizabeth Donahue Title: Managing Director By: /s/ ------------------------------------ Title: Managing Director 26 25 BHF-BANK AKTIENGESELLSCHAFT, as a Lender By: ------------------------------------ Title: 27 26 CITY NATIONAL BANK, as a Lender By: /s/ ------------------------------------ Title: Vice President 28 27 COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE, as a Lender By: ANTHONY ROCK ------------------------------------ Anthony Rock Title: Vice President By: BRIAN O'LEARY ------------------------------------ Brian O'Leary Title: Vice President 29 28 CREDIT AGRICOLE INDOSUEZ, as a Lender By: MARCY LYONS ------------------------------------ Title: First Vice President By: /s/ ------------------------------------ Title: EVP 30 29 CREDIT LYONNAIS NEW YORK BRANCH, as a Lender By: ------------------------------------ Title: 31 30 THE DAI-ICHI KANGYO BANK, LIMITED, LOS ANGELES AGENCY, as a Lender By: MASATSUGU MORISHITA ------------------------------------ Masatsugu Morishita Title: Sr. Vice President & Joint General Manager 32 31 DLJ CAPITAL FUNDING, INC., as a Lender By: /s/ ------------------------------------ Title: 33 32 DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as Lenders By: BRIGITTE SAGIN ------------------------------------ Brigitte Sagin Title: Assistant Treasurer By: CHRISTOPHER E. SARISKY ------------------------------------ Christopher E. Sarisky Title: Assistant Vice President 34 33 ERSTE BANK NEW YORK BRANCH, as a Lender By: ------------------------------------ Title: 35 34 THE FIRST NATIONAL BANK OF CHICAGO, as a Lender By: CATHERINE A. MUZZEST ------------------------------------ Title: Vice President 36 35 FIRST DOMINION FUNDING I, as a Lender By: ANDREW H. MARSHAK ------------------------------------ Andrew H. Marshak Title: Authorized Signatory 37 36 FIRST HAWAIIAN BANK, as a Lender By: ------------------------------------ Title: 38 37 FIRST SECURITY BANK, N.A., as a Lender By: ------------------------------------- Title: 39 38 FIRST UNION NATIONAL BANK, as a Lender By: DOUGLAS NICKEL ------------------------------------ Douglas Nickel Title: Vice President 40 39 FIRSTRUST BANK, as a Lender By: ------------------------------------ Title: 41 40 FLEET BANK, N.A., as a Lender By: /s/ ------------------------------------- Title: Vice President 42 41 THE FUJI BANK, LIMITED LOS ANGELES AGENCY, as a Lender By: MASAHITO FUKUDA ------------------------------------ Masahito Fukuda Title: Joint General Manager 43 42 GCB INVESTMENT PORTFOLIO, as a Lender By: Citibank, N.A., as Investment Advisor By: STEVE KAUFFMAN ------------------------------------ Title: Vice President 44 43 GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender By: JANET K. WILLIAMS ------------------------------------ Janet K. Williams Title: Duly Authorized Signatory 45 44 GOLDMAN SACHS CREDIT PARTNERS L.P., as a Lender By: STEPHEN B. KING ------------------------------------ Stephen B. King Title: Authorized Signatory 46 45 IKB DEUTSCHE INDUSTRIEBANK AG, Luxembourg Branch as a Lender By: E. BRECHT ------------------------------------ E. Brecht Title: Director By: MANFRED ZIWEY ------------------------------------ Manfred Ziwey Title: Senior Vice President 47 46 IMPERIAL BANK, as a Lender By: ------------------------------------ Title: 48 47 THE INDUSTRIAL BANK OF JAPAN, LIMITED, as a Lender By: TAKUYA HONJO ------------------------------------ Takuya Honjo Title: Senior Vice President 49 48 KEYBANK NATIONAL ASSOCIATION, as a Lender By: RICHARD J. AMENY, JR. ------------------------------------ Richard J. Ameny, Jr. Title: Assistant Vice President 50 49 KZH CNC LLC, as a Lender By: VIRGINIA CONWAY ------------------------------------ Virginia Conway Title: Authorized Agent KZH ING-2 LLC, as a Lender By: VIRGINIA CONWAY ------------------------------------ Virginia Conway Title: Authorized Agent 51 50 LAND BANK OF TAIWAN, LOS ANGELES BRANCH, as a Lender By: ------------------------------------ Title: 52 51 THE LONG TERM CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY, as a Lender By: /s/ ------------------------------------ Title: Deputy General Manager 53 52 MARINE MIDLAND BANK, as a Lender By: SUSAN L. LEFEVRE ------------------------------------ Susan L. LeFevre Title: Authorized Signatory 54 53 MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, as a Lender By: ------------------------------------ Title: 55 54 MEESPIERSON CAPITAL CORP., as a Lender By: ------------------------------------ Title: 56 55 MELLON BANK, N.A., as a Lender By: L.C. IVEY ------------------------------------ Title: Vice President 57 56 MERCANTILE BANK N.A., as a Lender By: KIRK A. PORTER ------------------------------------ Kirk A. Porter Title: Senior Vice President 58 57 MERRILL LYNCH GLOBAL INVESTMENT SERIES: INCOME STRATEGIES PORTFOLIO, as a Lender By: Merrill Lynch Asset Management, L.P., as Investment Adviser By: PAUL TRAVERS ------------------------------------ Paul Travers Title: Authorized Signatory MERILL LYNCH SENIOR FLOATING RATE FUND, INC., as a Lender By: PAUL TRAVERS ------------------------------------ Paul Travers Title: Authorized Signatory DEBT STRATEGIES FUND INC., as a Lender By: PAUL TRAVERS ------------------------------------ Paul Travers Title: Authorized Signatory DEBT STRATEGIES FUND II, INC., as a Lender By: PAUL TRAVERS ------------------------------------ Paul Travers Title: Authorized Signatory 59 58 THE MITSUBISHI TRUST AND BANKING CORPORATION, as a Lender By: TOSHIHIRO HAYASHI ------------------------------------ Toshihiro Hayashi Title: Senior Vice President 60 59 MORGAN STANLEY SENIOR FUNDING, INC., as a Lender By: ------------------------------------ Title: 61 60 NATEXIS BANQUE BFCE, as a Lender By: PEYMAN PARHAMI ------------------------------------ Peyman Parhami Title: Assistant Treasurer By: IAIN A. WHYTE ------------------------------------ Iain A. Whyte Title: Vice President 62 61 NATIONAL BANK OF KUWAIT, as a Lender By: MUHANNAD KAMAL ------------------------------------ Muhannad Kamal Title: General Manager By: ROBERT J. MCNEILL ------------------------------------ Robert J. McNeill Title: Executive Manager 63 62 NATIONAL CITY BANK, as a Lender By: ------------------------------------ Title: 64 63 NATS LOAN TRUST 6, as a Lender By: The Bank of New York, as Trustee By: ------------------------------------ Title: 65 64 PARIBAS, as a Lender By: JUDITH A. DOWLY ------------------------------------ Title: By: LEE S. BUCKNER ------------------------------------ Lee S. Buckner Title: Managing Director 66 65 PIMCO TOTAL RETURN FUND, as a Lender By: ------------------------------------ Title: 67 66 COOPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as a Lender By: ------------------------------------ Title: 68 67 REPUBLIC NATIONAL BANK OF NEW YORK, as a Lender By: JEAN-PIERRE F. DIELS ------------------------------------ Jean-Pierre F. Diels Title: Executive Vice President By: THEODORE R. KOERNER ------------------------------------ Theodore R. Koerner Title: First Vice President 69 68 ROYAL BANK OF CANADA, as a Lender By: JULIE ROTHAMBEY ------------------------------------ Julie Rothambey Title: Senior Manager 70 69 THE ROYAL BANK OF SCOTLAND PLC, as a Lender By: DEREK BONNAR ------------------------------------ Derek Bonnar Title: Vice President 71 70 THE SAKURA BANK, LIMITED, as a Lender By: YOSHIKAZU NAGURA ------------------------------------ Yoshikazu Nagura Title: Vice President 72 71 SOCIETE GENERALE, as a Lender By: J. BLAINE SHAUM ------------------------------------ J. Blaine Shaum Title: Managing Director 73 72 STB DELAWARE FUNDING TRUST I, as a Lender By: DONALD C. HARGADON ------------------------------------ Donald C. Hargadon Title: Assistant Vice President 74 73 THE TOKAI BANK, LIMITED, LOS ANGELES AGENCY, as a Lender By: /s/ ------------------------------------ Title: SVP & Assistant General Manager 75 74 TORONTO DOMINION (TEXAS) INC., as a Lender By: ------------------------------------ Title: 76 75 TRANSAMERICA BUSINESS CREDIT CORPORATION, as a Lender By: ------------------------------------ Title: 77 76 UNION BANK OF CALIFORNIA, N.A., as a Lender By: ------------------------------------ Title: 78 77 US BANK NATIONAL ASSOCIATION, as a Lender By: STEVEN T. WILLIAMS ------------------------------------ Steven T. Williams Title: Vice President 79 78 VAN KAMPEN SENIOR INCOME TRUST, as a Lender By: ------------------------------------ Title: 80 79 WACHOVIA BANK, N.A., as a Lender By: /s/ ------------------------------------ Title: Vice President 81 80 WELLS FARGO BANK, N.A., as a Lender By: DONALD A. HARTMANN ------------------------------------ Donald A. Hartmann Title: Senior Vice President By: CATHERINE M. WALLACE ------------------------------------ Catherine M. Wallace Title: Vice President 82 81 ZIONS FIRST NATIONAL BANK, as a Lender By: RICHARD P. JACKSON ------------------------------------ Richard P. Jackson Title: Vice President