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Exhibit 10.11
AMENDMENT AND RESTATEMENT
Dated as of December 18, 1998
of
PARTICIPATION AGREEMENT
Dated as of March 11, 1998
Among
FRED MEYER, INC.
as Lessee and Construction Agent
and
FMS TRUST 1997-1
as Lessor
and
WILMINGTON TRUST COMPANY
not in its individual capacity, except as expressly specified therein,
but solely as Owner Trustee under the FMS Trust 1997-1
and
THE INVESTORS PARTY TO THE TRUST AGREEMENT
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
and
THE LENDERS PARTIES THERETO
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AMENDMENT AND RESTATEMENT, dated as of December 18, 1998 (this
"Amendment"), of the Participation Agreement, dated as of March 11, 1998 (as
amended, the "Participation Agreement"), among FRED MEYER, INC., a Delaware
corporation ("FMI"; in its capacity as lessee, the "Lessee"; and in its capacity
as Construction Agent, the "Construction Agent"); FMS TRUST 1997-1, a Delaware
business trust (the "Trust" or the "Lessor"); WILMINGTON TRUST COMPANY, not
individually (in its individual capacity, the "Trust Company"), except as
expressly stated herein, but solely as Owner Trustee under the FMS Trust 1997-1
(the "Owner Trustee"); CHASE SECURITIES INC. ("CSI"), as Lead Arranger and Book
Manager (in such capacity, the "Lead Arranger and Book Manager"); BANKERS TRUST
COMPANY, a New York banking corporation, as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders; THE CHASE MANHATTAN BANK,
a New York banking corporation, as syndication agent (in such capacity, the
"Syndication Agent"); NATIONSBANK OF TEXAS, N.A., a national banking
association, and SALOMON BROTHERS HOLDING CO INC. as co-documentation agents (in
such capacity, the "Co-Documentation Agents"); each of the financial
institutions listed as an Investor on the signature pages of the Trust Agreement
(each an "Investor"; collectively, the "Investors"); and each of the financial
institutions listed as a Lender on the signature pages hereof (each, a "Lender";
collectively, the "Lenders").
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 FMI in exchange
for newly issued shares of common stock of Kroger pursuant to a merger of a
wholly owned subsidiary of Kroger into FMI (the "Acquisition");
WHEREAS, in connection with the Acquisition, Kroger and FMI have
requested and upon the effectiveness of this Amendment, the parties hereto have
agreed, that certain provisions of the Participation Agreement be amended and
that the Participation 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 Lessee under the Participation Agreement; and
WHEREAS, the Lessee 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 Annex A to the
Participation Agreement and used herein shall have the meanings given to them in
Annex A to the Participation Agreement. Unless otherwise indicated, all Article,
Section and subsection references are to the Participation Agreement.
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SECTION 2. Amendments to Annex A. Annex A to the Participation
Agreement is hereby amended as follows:
(a) by amending and restating the following definitions appearing
therein to read in their entireties as follows:
"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.
"Guarantee" means any of the Lessee Guarantee, Subsidiary Guarantees
and Kroger Guarantee.
"Guarantor" means any of the Lessee Guarantor, Subsidiary Guarantors
and Kroger Guarantors.
"Loan Parties" means the Lessee and Construction Agent and each of the
Guarantors; provided that, for purposes of Section 7.3 of the Participation
Agreement, the term "Loan Parties" shall not include the Kroger Guarantors.
"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 Lessee to perform any of its
obligations under any Operative Agreement 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 Operative Agreement.
"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.
"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).
"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 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
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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: "Capitalized Lease Obligations"; "Change of Control";
"Consolidated EBITDAR"; "Consolidated Interest Expense"; "ERISA Event";
"Facility"; "Fixed Charge Coverage Ratio"; "Permits"; "Permitted Investments";
"Public Notes" "Restricted Payment"; "Surety Instruments"; and "Tangible Net
Assets".
(c) by adding thereto the following definitions in the appropriate
alphabetical order:
"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), 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 Lessee.
"Credit Agreement Amendment" means the Amendment and Restatement,
dated as of December 18, 1998, of the Credit Agreement.
"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 with
respect to the Participation Agreement and the other Operative Agreements.
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"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.
"Lease Amendment" means the Amendment, dated as of December 18, 1998,
to the Lease .
"Participation Agreement Amendment" means the Amendment and
Restatement, dated as of December 18, 1998, of the Participation Agreement.
SECTION 3. Amendment to Section 6.1. Section 6.1 of the Participation
Agreement is hereby amended by amending and restating the following paragraph
(w) thereof to read in its entirety as follows:
"(w) Financial Information. The Investors, the Administrative
Agent and the Lenders shall have received, in form and substance
satisfactory to each of them, the financial statements required to be
delivered pursuant to Section 4.1(h) of the Kroger Guarantee."
SECTION 4. Amendments to Section 7.3. Section 7.3 of the Participation
Agreement is hereby amended by (a) deleting paragraphs (e), (f), (g), (h), (i),
(j), (m), (n), (o), (p), (s), (t), (u), (v) and (w) of such Section in their
entireties and (b) redesignating paragraphs (k), (l), (q) and (r) of such
Section as paragraphs (e), (f), (g) and (h), respectively.
SECTION 5. Amendments to Section 9.4. Section 9.4 of the Participation
Agreement is hereby amended by (a) deleting paragraphs (b), (c), (d), (e), (f)
and (g) of such Section in their entireties, (b) redesignating paragraphs (h),
(i) and (j) as paragraphs (b), (c) and (d), respectively and (c) inserting a new
paragraph at the end thereof to read in its entirety as follows:
"(e) Certain Covenants. (i) The Lessee shall, and shall cause its
Subsidiaries, to comply with the covenants set forth in Section 4.1 of
the Kroger Guarantee to the extent applicable.
(ii) The Lessee will furnish to the Administrative Agent and each
Lender prompt written notice of the occurrence of any Default upon
actual notice thereof by a Responsible Officer of the Lessee."
SECTION 6. Amendments to Section 9.5. Section 9.5 of the Participation
Agreement is hereby amended by deleting all subsections of such Section in their
entireties and substituting in lieu thereof the following new subsection:
"(a) Kroger Guarantee Covenants. The Lessee shall, and shall
cause its Subsidiaries, to comply with the covenants set forth in
Section 4.2 of the Kroger Guarantee to the extent applicable."
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SECTION 7. Amendments to Section 10.1. Section 10.1 of the
Participation Agreement is hereby amended by (a) deleting the word "and" at the
end of paragraph (k) of such Section, (b) inserting a new paragraph (l) of such
Section to read in its entirety as follows:
"(l) the Lessee shall have the right to give the notices referred to
in Section 2.18 of the Credit Agreement; and",
(c) redesignating the existing paragraph (l) of such Section as paragraph (m)
and (d) changing the reference to "(k)" in new paragraph (m) to a reference to
"(l)".
SECTION 8. Restatement of Participation Agreement. The Participation
Agreement is hereby restated in its entirety to read as set forth in Exhibit A
to this Amendment. The only amendments to the Participation Agreement, as
restated, are those reflected in this Amendment.
SECTION 9. Representations and Warranties. After giving effect to this
Amendment, the Lessee hereby confirms, reaffirms and restates in all material
respects the representations and warranties set forth in Section 7.3 of the
Participation 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.
SECTION 10. Lead Arranger; Book Manager. CSI shall act as Lead
Arranger and Book Manager with respect to this Amendment.
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 Lead Arranger and Book Manager of each of the
following:
(a) counterparts of this Amendment, duly executed and delivered by the
Lessee and Construction Agent, the Lessor, the Owner Trustee, the Trust Company,
the Administrative Agent, the Syndication Agent 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;
(c) an opinion of counsel for the Lessee, as to the due authorization
and execution by the Lessee 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 for 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;
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(f) satisfactory evidence that the Lease Amendment and the Credit
Agreement Amendment have been duly executed and delivered by the requisite
parties and all conditions precedent to the effectiveness thereof have been
satisfied;
(g) satisfactory evidence that the Amendment and Restatement, dated as
of December 18, 1998 of the Loan Agreement, has been executed and delivered by
the requisite parties and all conditions precedent to the effectiveness thereof
have been satisfied.
(h) satisfactory evidence that (i) the Current Synthetic Lease
Facility of the Borrower has been terminated and all Loans outstanding under the
Credit Agreement have been paid in full, (ii) the commitments under the Loan
Agreement have been reduced by $500,000,000 or (iii) a combination thereof
resulting in the reduction of commitments under the Loan Agreement and
Commitments under the Credit Agreement in an aggregate amount of $500,000,000;
(i) the surviving corporation following the Acquisition has confirmed
in writing its assumption of all of the obligations of FMI under the
Participation Agreement and the other Operative Agreements; and
(j) the payment of all fees and other amounts payable in connection
with this Amendment.
SECTION 12. Payment of Expenses. The Lessee 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 13. Continuing Effect of Participation Agreement; Termination
of Amendment. Except as expressly amended herein, the Participation 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 Lessee, Jobsite Holdings, Inc. and Kroger.
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 Loans, 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.
FMS TRUST 1997-1, a Delaware Business
Trust, as Lessor
By WILMINGTON TRUST COMPANY, not
individually, except to the extent
expressly set forth herein, but solely as
Owner Trustee
By: /s/
-------------------------------------
Title:
WILMINGTON TRUST COMPANY, not in its
individual capacity, except to the extent
expressly set forth herein, but solely as
Owner Trustee
By: /s/
-------------------------------------
Title:
FRED MEYER, INC., as Lessee and
Construction Agent
By: JAMES C. AALBERG
-------------------------------------
Title: Vice President, Treasurer
BANKERS TRUST COMPANY, as Administrative
Agent and Lender
By: MARY KAY COYLE
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Title: Managing Director
THE CHASE MANHATTAN BANK, as Syndication
Agent and Lender
By: WILLIAM P. RINDFUSS
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Title: Vice President
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CHASE SECURITIES, INC., as Lead Arranger
and Book Manager
By: RUTH STRITEHOFF
-------------------------------------
Title: Managing Director
NATIONSBANK OF TEXAS, N.A., as
Co-Documentation Agent and as a Lender
By: JAMES P. JOHNSON
-------------------------------------
Title: Managing Director
SALOMON BROTHERS HOLDING CO INC., as
Co-Documentation Agent and as a Lender
By:
-------------------------------------
Title:
SOCIETE GENERALE FINANCIAL CORPORATION,
as Investor and as a Lender
By: /s/
-------------------------------------
Title: Vice-President
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ABN AMRO BANK N.V., as a Lender
By: SUSAN HENDRICKSON
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Title: Vice President
By: PAUL FAUST
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Title: Vice President
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BANCO ESPIRITO SANTO E COMERCIAL DE
LISBOA, NASSAU BRANCH, as a Lender
By: ANDREW M. ORSEN
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Title: Vice President
By: TERRY R. HULL
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Title: Senior Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
By: JAMES P. JOHNSON
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Title: Managing Director
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BANK OF HAWAII, as a Lender
By: DAVID L. WARD
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Title: Assistant Vice President
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BANK LEUMI U.S.A., as a Lender
By: /s/
-------------------------------------
Title:
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BANK OF MONTREAL, as a Lender
By: SHEILA C. WEIMER
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Title: Director
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THE BANK OF NEW YORK, as a Lender
By: PAULA REGAN
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Title: Vice President
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THE BANK OF TOKYO-MITSUBISHI LTD.,
PORTLAND BRANCH, as a Lender
By: M.W. KRINGLEN
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Title: Vice President
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BANQUE NATIONALE DE PARIS, as a Lender
By: NICHOLAS ROGERS
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Title: Senior Vice President
By: STEPHEN H. CELLA
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Title: Vice President
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BAYERISCHE HYPO-UND VEREINSBANK AG, as a
Lender
By:
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Title:
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BHF-BANK AKTIENGESELLSCHAFT, as a Lender
By:
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Title:
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CITY NATIONAL BANK, as a Lender
By: /s/
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Title: Vice President
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COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE, as a Lender
By: ANTHONY ROCK
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Title: Vice President
By: BRIAN O'LEARY
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Title: Vice President
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CREDIT AGRICOLE INDOSUEZ, as a Lender
By: MARCY LYONS
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Title: Vice President
By: /s/
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Title: EVP
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CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender
By:
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Title:
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DLJ CAPITAL FUNDING, INC., as a Lender
By: /s/
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Title:
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DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as Lenders
By: BRIGITTE SACIN
-------------------------------------
Title: Assistant Treasurer
By: CHRISTOPHER E. SARISKY
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Title: Assistant Vice President
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ERSTE BANK NEW YORK BRANCH, as a Lender
By:
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Title:
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THE FIRST NATIONAL BANK OF CHICAGO, as a
Lender
By: CATHERINE A. MUZZEST
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Title: Vice President
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FIRST SECURITY BANK, N.A., as a Lender
By:
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Title:
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FIRST UNION NATIONAL BANK, as a Lender
By: DOUGLAS NICKEL
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Title: Vice President
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FIRSTRUST BANK, as a Lender
By:
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Title:
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FLEET BANK, N.A., as a Lender
By:
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Title: Vice President
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THE FUJI BANK, LIMITED LOS ANGELES
AGENCY, as a Lender
By: MASAHITO FUKUDA
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Title: Joint General Manager
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GENERAL ELECTRIC CAPITAL CORPORATION, as
a Lender
By: JANET K. WILLIAMS
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Title: Duly Authorized Signature
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GOLDMAN SACHS CREDIT PARTNERS L.P., as a
Lender
By: STEPHEN B. KING
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Title: Authorized Signature
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IMPERIAL BANK, as a Lender
By:
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Title:
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THE INDUSTRIAL BANK OF JAPAN, LIMITED, as
a Lender
By: TAKUYA HONJO
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Title: Senior Vice President
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KEYBANK NATIONAL ASSOCIATION, as a Lender
By: RICHARD J. AMENY, JR.
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Title: Assistant Vice President
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LAND BANK OF TAIWAN, LOS ANGELES BRANCH,
as a Lender
By:
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Title:
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THE LONG TERM CREDIT BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY, as a Lender
By:
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Title:
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MARINE MIDLAND BANK, as a Lender
By: SUSAN L. LEFEVRE
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Title: Authorized Signatory
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MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, as a Lender
By:
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Title:
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MEESPIERSON CAPITAL CORP., as a Lender
By:
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Title:
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MELLON BANK, N.A., as a Lender
By: L.C. IVEY
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Title: Vice President
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MERCANTILE BANK N.A., as a Lender
By:
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Title:
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MERITA BANK PLC, as a Lender
By: /s/
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Title: VP
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THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender
By: TOSHIHIRO HAYASHI
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Title: Senior Vice President
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MORGAN STANLEY SENIOR FUNDING, INC., as a
Lender
By:
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Title:
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NATEXIS BANQUE BFCE, as a Lender
By: PEYMAN PARHAMI
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Title: Assistant Treasurer
By: IAIN A. WHYTE
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Title: Vice President
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NATIONAL CITY BANK, as a Lender
By:
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Title:
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NATS LOAN TRUST 6, as a Lender By: The
Bank of New York, as Trustee
By:
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Title:
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PARIBAS, as a Lender
By: JUDITH A. DOWLY
-------------------------------------
Title:
By: LEE S. BUCKNER
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Title: Managing Director
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By:
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Title:
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ROYAL BANK OF CANADA, as a Lender
By: JULIE BOTHAMLEY
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Title: Senior Manager
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THE ROYAL BANK OF SCOTLAND PLC, as a
Lender
By: DEREK BONNAR
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Title: Vice President
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STB DELAWARE FUNDING TRUST I, as a Lender
By: DONALD C. HARGADON
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Title: Assistant Vice President
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THE TOKAI BANK, LIMITED, LOS ANGELES
AGENCY, as a Lender
By: /s/
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Title: SVP & Assistant General Manager
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TORONTO DOMINION (TEXAS) INC., as a
Lender
By:
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Title:
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TRANSAMERICA BUSINESS CREDIT CORPORATION,
as a Lender
By:
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Title:
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UNION BANK OF CALIFORNIA, N.A., as a
Lender
By:
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Title:
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US BANK NATIONAL ASSOCIATION, as a Lender
By: STEVEN T. WILLIAMS
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Title: Vice President
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WACHOVIA BANK, N.A., as a Lender
By: /s/
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Title: Vice President
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WELLS FARGO BANK, N.A., as a Lender
By: DONALD A. HARTMANN
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Title: Senior Vice President
By: CATHERINE M. WALLACE
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Title: Vice President
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ZIONS FIRST NATIONAL BANK, as a Lender
By: RICHARD P. JACKSON
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Title: Vice President