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EXHIBIT 4.25
TENTH AMENDMENT TO CREDIT AGREEMENT
THIS TENTH AMENDMENT TO CREDIT AGREEMENT (this "Tenth Amendment") is
made and entered into as of December 15, 2000 among DANKA BUSINESS SYSTEMS PLC,
a limited liability company incorporated in England and Wales (Registered Number
1101386) ("Danka PLC"), DANKALUX SARL & CO. SCA, a Luxembourg company
("Dankalux"), and DANKA HOLDING COMPANY, a Delaware corporation ("Danka
Holding") (Danka PLC, Dankalux and Danka Holding are herein each a "Company" and
collectively the "Companies"), AMERICAN BUSINESS CREDIT CORPORATION, AMERITREND
CORPORATION, CORPORATE CONSULTING GROUP, INC., D.I. INVESTMENT MANAGEMENT, INC.,
DANKA IMAGING DISTRIBUTION, INC., DANKA MANAGEMENT COMPANY, INC., DANKA OFFICE
IMAGING COMPANY, DYNAMIC BUSINESS SYSTEMS, INC., XXXXXX ENTERPRISES, INC. OF
SOUTH FLORIDA, QUALITY BUSINESS, INC. (collectively with Danka Holding, the
"Grantors"), the entities listed on the signature pages hereof as International
Swing Line Borrowers (collectively the "International Borrowers" and together
with the Grantors and the Companies, the "Danka Parties"), BANK OF AMERICA,
NATIONAL ASSOCIATION (formerly known as NationsBank, National Association, a
national banking association formerly known as NationsBank, National Association
(Carolinas)), each other Bank listed on the signature pages hereof (each
individually, a "Bank" and collectively, the "Banks"), and BANK OF AMERICA,
NATIONAL ASSOCIATION (formerly known as NationsBank, National Association), in
its capacity as agent for the Banks (in such capacity, the "Agent"):
W I T N E S S E T H:
WHEREAS, the Companies, the Banks and the Agent have entered into a
Credit Agreement dated as of December 5, 1996, as amended and supplemented by a
First Amendment dated as of December 5, 1997, a Second Amendment dated as of
July 28, 1998, a Third Amendment dated as of December 31, 1998, a Fourth
Amendment dated as of March 29, 1999, a Fifth Amendment dated as of June 15,
1999, a Sixth Amendment dated as of July 9, 1999 (the "Sixth Amendment"), a
Seventh Amendment dated as of December 1, 1999, an Eighth Amendment dated as of
March 24, 2000, a Ninth Amendment dated as of October 31, 2000, a Waiver Letter
Agreement dated as of October 20, 1998 and a Waiver Letter Agreement dated as of
February 18, 1999 (as further amended hereby and as from time to time further
amended, supplemented or modified, the "Credit Agreement"), pursuant to which
the Banks agreed to make certain revolving credit, term loan and letter of
credit facilities available to the Companies; and
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WHEREAS, Article VIII of the Credit Agreement contains financial
covenants, compliance with which cannot be waived or amended without the written
consent of the Majority Banks; and
WHEREAS, the Danka Parties have requested that the Banks provide
written consent to the amendment of the financial covenants as provided herein;
and
WHEREAS, the Danka Parties have requested that the Banks provide
written consent to the rescheduling of the January 1, 2001 payment of Term Loan
Outstandings; and
WHEREAS, Danka Holding desires to sell from time to time all or part of
certain real properties which are subject to a mortgage granted to certain
lenders (the "TROL Lenders") pursuant to the tax retention lease operating
documents (the "TROL Documents") to which certain Danka Parties are party (each
such property, a "Property"); and
WHEREAS, to release the mortgage held by the TROL Lenders so to
effectuate the sale of a Property, Danka Holding needs to repay a certain sum
(the "Termination Value") of principal indebtedness owed to the TROL Lenders;
and
WHEREAS, Danka Holding desires to pay the Termination Value to the TROL
Lenders upon the sale of any Property from the net sale proceeds from such sale
and from funds held in a cash collateral account in which the TROL Lenders hold
a first priority security interest (the "Cash Collateral Account"); and
WHEREAS, the Credit Agreement does not permit any required principal
payments under the TROL Documents; and
WHEREAS, the Banks and the Danka Parties have agreed to amend certain
provisions of the Credit Agreement and to certain other agreements of the
parties, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good and sufficient consideration, receipt of which is hereby
acknowledged, the Danka Parties and the Banks do hereby agree as follows:
1. Definitions. Any capitalized terms used herein without
definition shall have the meaning set forth in the Credit Agreement.
2. Amendment of Credit Agreement. Subject to the terms and
conditions set forth herein, Section 8.3 of the Credit Agreement is amended to
add new clause (vii) as follows:
"(vii) Notwithstanding anything to the contrary contained in
this Section 8.3, compliance with the financial covenants in
clauses (i) through (v) of this Section 8.3 shall be deemed
satisfied for the period beginning on or after December 31,
2000 and through and including the earlier of (1)
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March 28, 2001 and (2) the date on which there shall have
occurred a "Designated Event" as such term is defined in that
certain indenture dated March 13, 1995, between Danka PLC, as
issuer, and The Bank of New York, as trustee, pursuant to
which Danka PLC issued the Convertible Subordinated Notes, and
any Event of Default that may have existed on or after
December 31, 2000 as a result of any failure by the Danka
Parties to comply therewith during such period shall be
waived, if the Danka Parties do not permit:
(a) The Consolidated Fixed Charge
Coverage Ratio as at the end of the four fiscal
quarter period ending on December 31, 2000 to be less
than 0.80 to 1.00;
(b) At any time on and after December
31, 2000 and on or prior to March 28, 2001 the
Adjusted Consolidated Net Worth of Danka PLC and its
Subsidiaries to be less than $286,000,000;
(c) The Consolidated Total Leverage
Ratio as at the end of December 31, 2000 for the four
fiscal quarter period then ending to exceed 5.30 to
1.00;
(d) The cumulative Consolidated EBITDA
of Danka PLC and its Subsidiaries for the four fiscal
quarter period ending on December 31, 2000 to be less
than $161,000,000; and
(e) The ratio of (A) Consolidated
EBITDA to (B) gross interest expense in each case of
Danka PLC and its Subsidiaries as at the end of the
four fiscal quarter period ending on December 31,
2000 to be less than 1.90 to 1.00.
For purposes of subsections (a), (c), (d) and (e) in this Section 8.3(vii), the
calculation of the Consolidated EBITDA for the four fiscal quarter period ending
December 31, 2000 shall add to income from continuing operations the actual
restructuring charges for such period in an amount not to exceed $62,340,000. In
addition, for purposes of subsections (a), (b) and (e) in this Section 8.3(vii),
the impact of the $10,000,000 waiver extension fee under the Sixth Amendment
dated as of July 9, 1999 on the interest expense for such period shall be
excluded. Notwithstanding anything to the contrary in this Agreement, upon any
occurrence of the circumstances described in subclause (2) of clause (vii) of
this Section 8.3, then immediately, automatically and without any prior notice
thereof, an "Event of Default" as such term is defined in Section 9.1 of this
Agreement shall be deemed to have occurred."
3. New Borrowing. Notwithstanding anything to the contrary in the
Credit Agreement, during the period from and after December 31, 2000, the
Companies shall not request, and the Companies shall not be entitled to receive,
any new Borrowing unless the Chief
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Executive Officer or Chief Financial Officer of Danka PLC shall have, on or
before the date of any such request, delivered a certificate to the Banks (in
care of the Agent) setting forth in reasonable detail the then current cash
balances and cash flow projections of the Companies and certifying that the
Companies require the proceeds from such request in order for the Companies to
be able to pay all of their costs and expenses incurred in the ordinary course
of business and to operate their businesses in the ordinary course of business
in the immediate two weeks following any such request; provided, however, that
the Companies shall not be required to deliver such certificate for any new
Borrowing where the aggregate amount outstanding against ABN Amro Bank N.V.'s
commitments under the International Swing Line Agreement after giving effect to
such new Borrowing does not exceed $7,000,000; and provided further that an
election to continue any Syndicated Loan or Bank of America Swing Line loan
pursuant to Section 2.4(a)(ii) of the Credit Agreement shall not be considered a
new Borrowing for purpose of this paragraph 3. At the request of the Banks
(acting through the Agent) the Companies shall provide to the Banks such
additional facts and evidence supporting the conclusions contained in such
certificate as may be reasonably requested by the Agent.
4. Dividends, Distributions, Investments. During the period from
and including December 31, 2000 and to and including March 28, 2001 (i) Danka
PLC shall not pay any dividends or make any distributions, except as permitted
pursuant to the first paragraph of Section 8.5 (as amended by the Seventh
Amendment to the Credit Agreement, dated as of December 1, 1999), (ii) neither
the Companies nor any of their Subsidiaries shall make any Acquisitions, and
(iii) neither the Companies nor any of their Subsidiaries shall make any
Investments.
5. Rescheduling January 1, 2001 Payment. The Companies may elect,
upon giving of the notice provided for in the proviso to this sentence, to make
the $25,000,000 payment of Term Loan Outstandings, scheduled to be made on
January 1, 2001 in accordance with the provisions of Section 2.9(c) and Schedule
V of the Credit Agreement, on December 29, 2000; provided, that in order for the
Companies to make such election, the Companies shall provide written notice to
the Agent of its election on or before December 22, 2000. Schedule V of the
Credit Agreement is hereby amended to include such scheduled installment
election.
6. Repayment of Tax Retention Operating Lease. Notwithstanding
any provision of the Credit Agreement or other Loan Documents to the contrary,
the Companies may make payments to the TROL Lenders of the Termination Value of
any Property, which payments shall be applied to the principal amount of such
loan and any accrued and unpaid interest thereon and "Holder Advances" as
defined in the TROL Documents (the "Permitted Application"); provided that (a)
the funds for such payments shall be derived solely from (i) funds, if any, in
the Cash Collateral Account (including any investment earnings thereon but
excluding any taxes reasonably estimated to be payable thereon), and (ii) net
proceeds from the sale of any Property (determined without any reduction in
respect of outstanding obligations under the TROL Documents) (the "Net TROL
Proceeds"), and (b) within three (3) Business Days of the receipt of the Net
TROL Proceeds, the Companies shall pay to the TROL Lenders one hundred percent
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(100%) of such Net TROL Proceeds, which payment the TROL Lenders agree to apply
to a Permitted Application.
7. Amendment Fees; Expenses. Promptly upon the execution of this
Tenth Amendment by the Majority Banks, the Danka Parties shall pay to the Agent
for the benefit of each of the Banks which shall have executed this Tenth
Amendment an amendment fee equal to 1/4% of such Banks' Commitment (the
"Amendment Fee"). The Danka Parties agree promptly to pay or reimburse
reasonable expenses of the Steering Committee and its members (including the
reasonable fees and expenses of outside counsel for the Steering Committee and
each of its members) incurred in connection with the Credit Agreement and the
other Loan Documents. The Companies acknowledge and agree that the Agent has
caused its counsel to retain PricewaterhouseCoopers LLP as independent business
consultant (the "Consultant") to assess on behalf of the Agent, its counsel and
the Banks the operations, finances, and business affairs of Danka PLC and its
Subsidiaries and to furnish reports of its findings and recommendations solely
to the Agent, its counsel and the Banks. The Companies jointly and severally
agree to pay all reasonable fees, costs, and expenses of the Consultant incurred
in connection with the performance by the Consultant of its duties described in
this paragraph. The Companies shall, and shall cause all Subsidiaries to,
cooperate fully and in a timely manner with the Consultant, including its agents
and employees.
8. Effectiveness. This Tenth Amendment shall become effective
upon (a) receipt by the Agent of an executed copy of this Tenth Amendment (which
may be signed in counterparts and may be received by facsimile transmission)
signed by the Danka Parties and the Majority Banks, (b) payment by the Danka
Parties to the Agent of the Amendment Fee, and (c) receipt by the Agent of a
copy of a waiver (in form and substance satisfactory to the Agent) of violations
of the financial covenants incorporated in the tax retention operating lease
documents.
9. Revised Business Plan. The Danka Parties shall (i) on or
before January 5, 2001, deliver to the Steering Committee a written update on
the process of creating the business plan described in subclause (ii) to this
paragraph 9, and (ii) as soon as practicable, but in any case on or before
February 5, 2001, deliver to the Agent, for the benefit of the Lenders, a
revised five-year business plan (including without limitation a balance sheet,
income statement and statement of cash flow, in each case to include forecasts
on a monthly basis for the remainder of fiscal year 2001 and for fiscal year
2002, and then on a yearly basis for fiscal years 2003, 2004 and 2005) in
reasonable detail.
10. Amendments to International Swing Line Agreement. Subject to
the terms and conditions set forth herein, the International Swing Line
Agreement is amended by (a) adding after "(an `Irrevocable Notice of
International Swing Line Borrowing')" in Section 2.3(a) thereof,", if required
by the relevant International Swing Line Bank or Designated Local Lender,", (b)
by adding before the period at the end of Section 2.9 thereof "or such other
facility fee as may be agreed upon from time to time by the Companies and any
International Swing Line Bank", and (c) by adding after "For each International
Swing Line Loan," in Section 4.2(a) thereof, "if required by the relevant
International Swing Line Bank or Designated Local Lender".
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11. Acknowledgment; Release.
(a) The Companies and the Grantors acknowledge that they
have no existing defense, counterclaim, offset,
cross-complaint, claim or demand of any kind or
nature whatsoever that can be asserted to reduce or
eliminate all or any part of any of their respective
liability to pay the full indebtedness outstanding
under the terms of the Credit Agreement and any other
documents which evidence, guaranty or secure the
Obligations. The Companies and the Grantors hereby
release and forever discharge the Agent, the
International Swing Line Banks, the Banks and all of
their officers, directors, employees, attorneys,
consultants and agents from any and all actions,
causes of action, debts, dues, claims, demands,
liabilities and obligations of every kind and nature,
both in law and in equity, known or unknown, whether
matured or unmatured, absolute or contingent.
(b) The International Swing Line Borrowers acknowledge
that they have no existing defense, counterclaim,
offset, cross-complaint, claim or demand or any kind
or nature whatsoever that can be asserted to reduce
or eliminate all or any part of their respective
liability to pay the full indebtedness owed by any of
them under the terms of the International Swing Line
Agreement or any separate facility which has been
made available to any of them by any International
Swing Line Bank or a Designated Local Lender (as
defined in the International Swing Line Agreement)
and any agreements related thereto. The International
Swing Line Borrowers hereby release and forever
discharge the Agent, the International Swing Line
Banks and the Designated Local Lenders (as defined in
the International Swing Line Agreement) and all of
their officers, directors, employees, attorneys,
consultants and agents from any and all actions,
causes of action, debts, dues, claims, demands,
liabilities and obligations of every kind and nature,
both in law and in equity, known or unknown, whether
matured or unmatured, absolute or contingent.
(c) The Danka Parties further acknowledge and agree that
any breach by the Danka Parties in the timely
performance, observance, or fulfillment of any of the
terms or conditions stated herein shall, unless the
Majority Banks shall otherwise agree in writing,
constitutes an Event of Default under the Credit
Agreement.
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12. Entire Agreement. This Tenth Amendment sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter.
13. Deemed Amendment of Other Loan Documents; Full Force and
Effect. To the extent necessary to give effect to the provisions hereof, the
International Swing Line Agreement and Security Agreement shall be deemed
amended and supplemented by the terms hereof. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
14. Counterparts. This Tenth Amendment may be executed in any
number of counterparts (including, without limitation, counterparts sent by
facsimile transmission), each of which shall be deemed an original as against
any party whose signature appears thereon and all of which shall together
constitute one and the same instrument.
15. Governing Law. This Tenth Amendment shall in all respects be
governed by the laws and judicial decisions of the State of Florida.
16. Enforceability. Should any one or more of the provisions of
this Tenth Amendment be determined to be illegal or unenforceable as to one of
the parties hereto, all other provisions nevertheless shall remain effective and
binding on the parties hereto.
17. Authorization. This Tenth Amendment has been duly authorized,
executed and delivered by the parties hereto and constitutes a legal, valid and
binding obligations of the parties hereto, except as may be limited by general
principles of equity or by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
WTTNESS: DANKA BUSINESS SYSTEMS PLC
By:
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Name:
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Title:
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Danka Holding Company
By:
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Name:
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Title:
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DANKALUX SARL & CO. SCA
BY: DANKALUX SARL, COMMANDITE
By:
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Name:
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Title:
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AMERICAN BUSINESS CREDIT CORPORATION
AMERITREND CORPORATION
CORPORATE CONSULTING GROUP, INC.
D.J. INVESTMENT MANAGEMENT, INC.
DANKA IMAGING DISTRIBUTION, INC.
DANKA MANAGEMENT COMPANY, INC.
DANKA OFFICE IMAGING COMPANY
DYNAMIC BUSINESS SYSTEMS, INC.
XXXXXX ENTERPRISES, INC. OF SOUTH FLORIDA
By:
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Name:
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Title:
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QUALITY BUSINESS, INC.
By:
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Name:
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Title:
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INTERNATIONAL SWINGLINE BORROWERS
DANKA CHILE COMERCIAL LTDA
DANKA DO BRASIL LIMITADA
DANKA MEXICANA S DE RL DE CV
DANKA DE PANAMA X.X.
XXXXX DE COLOMBIA
PUERTO RICO DANKA INC.
DANKA DE VENEZUELA X.X.
XXXXX AUSTRALIA PTY LIMITED &
DANKA NEW ZEALAND LIMITED
DANKA OFFICE IMAGING (JAPAN)
DANKA PHILIPPINES INC.
DANKA FRANCE S.A.R.L.
DANKA FRANCE XX
XXXXX OFFICE PRODUCTS B.V.
DANKA OFFICE IMAGING GMBH,
DANKA DEUTSCHLAND GMBH,
DANKA DISTRIBUTION GMBH,
DANKA DEUTSCHLAND HOLDING GMBH
DANKA OFFICE PRODUCTS B.V.
DANKA ITALIA S.P.A., BASSILLICHI INFOTEC
S.P.A., DANKA S.P.A. & DANKA OFFICE
IMAGING S.P.A.
DANKA HOLDINGS BV, DANKA EUROPE BV,
DANKA DISTRIBUTION BV (FKA INFOTEC
EUROPE BV), INFOTEC NEDERLAND BV,
DANKA GROUP BV, DANKA SERVICES
INTERNATIONAL BV, DANKA OFFICE
PRODUCTS BV, INFOTEC PARTICIPATIE
BV, AND DANKA NEDERLAND BV
DANKA OFFICE PRODUCTS BV
DANKA BUSINESS SYSTEMS PLC,
DANKALUX SARL & CO. SCA &
DANKA HOLDING COMPANY
By:
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Name: F. Xxxx Xxxxxxxxx
Title: Director
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BANK OF AMERICA, NATIONAL ASSOCIATION.
(formerly known as NationsBank, N.A.), as
Agent and Issuing Bank
By:
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Name:
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Title:
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BANK OF AMERICA, NATIONAL ASSOCIATION
(formerly known as NationsBank, N.A.), as a
Bank (Trade)
By:
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Name:
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Title:
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BANK OF AMERICA, NATIONAL ASSOCIATION
(formerly known as NationsBank, N.A.), as a
Bank
By:
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Name:
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Title:
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BANK OF AMERICA, NATIONAL ASSOCIATION
(formerly know as Bank of America National
Trust and Savings Association), as
International Swing Line Bank
By:
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Name:
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Title:
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BANK OF AMERICA, NATIONAL ASSOCIATION
(formerly know as Bank of America National
Trust and Savings Association), as a Bank
By:
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Name:
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Title:
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THE BANK OF NOVA SCOTIA
By:
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Name:
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Title:
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By:
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Name:
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Title:
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THE BANK OF NEW YORK
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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CIBC INC.
By:
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Name:
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Title:
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PNC BANK, KENTUCKY, INC.
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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SUNTRUST BANK
By:
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Name:
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Title:
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THE FUJI BANK AND TRUST COMPANY
By:
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Name:
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Title:
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ABN AMRO BANK N.V.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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PARIBAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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HIBERNIA NATIONAL BANK
By:
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Name:
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Title:
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SAN PAOLO IMI SPA
By:
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Name:
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Title:
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By:
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Name:
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Title:
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LLOYDS TSB BANK PLC
By:
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Name:
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Title:
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By:
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Name:
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Title:
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THE SUMITOMO BANK, LIMITED
By:
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Name:
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Title:
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BANCA COMMERCIALE ITALIANA
New York Branch
By:
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Name:
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Title:
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By:
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Name:
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Title:
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AMSOUTH BANK OF FLORIDA
By:
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Name:
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Title:
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By:
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Name:
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Title:
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BANKERS TRUST COMPANY
By:
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Name:
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Title:
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THE DAI-ICHI KANGYO BANK, LIMITED
By:
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Name:
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Title:
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NATIONAL AUSTRALIA BANK LIMITED
ACN 004044937
By:
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Name:
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Title:
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SANWA BANK LIMITED
By:
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Name:
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Title:
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XXX XXXXX XXXX XXXXXXX, XXX XXXX BRANCH
By:
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Name:
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Title:
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WACHOVIA BANK OF GEORGIA, N.A.
By:
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Name:
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Title:
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NATIONAL WESTMINSTER BANK PLC
By:
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Name:
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Title:
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BANCA NAZIONALE DEL LAVORO S.p.A. -
LONDON BRANCH
By:
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Name:
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Title:
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CREDIT AGRICOLE INDOSUEZ
By:
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Name:
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Title:
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By:
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Name:
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Title:
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STATE STREET BANK AND TRUST COMPANY
By:
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Name:
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Title:
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THE CHASE MANHATTAN BANK
By:
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Name:
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Title:
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LAZARD BROTHERS & CO., LIMITED
By:
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Name:
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Title:
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SOUTHTRUST BANK, N.A.
By:
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Name:
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Title:
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BT HOLDINGS (NEW YORK) INC.
By:
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Name:
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Title:
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