EXHIBIT 10.72
AMENDMENT NO. 4 TO THIRD AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 4 TO THIRD AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT ("this Amendment"), dated as of December 16, 2003, among
SWEETHEART CUP COMPANY INC., a Delaware corporation (the "Borrower"), SWEETHEART
HOLDINGS INC., a Delaware corporation ("Holdings"), the lending institutions
party hereto and BANK OF AMERICA, N.A., as Agent (the "Agent").
WHEREAS, the Borrower, Holdings, the lenders party thereto and
the Agent entered into a certain Third Amended and Restated Loan and Security
Agreement, dated as of March 25, 2002 as amended (such agreement as amended
being referred to herein as the "Loan and Security Agreement"), pursuant to
which such lenders have agreed, subject to certain terms and conditions, to make
revolving advances and term loans to the Borrower and to issue or to cause the
issuance of letters of credit for the account of the Borrower;
WHEREAS, the Borrower, Holdings, the Lenders and the Agent
desire to amend the Loan and Security Agreement;
NOW, THEREFORE, the Borrower, Holdings, the Lenders and the
Agent hereby agree as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used but not
defined herein shall have the respective meanings set forth in the Loan and
Security Agreement.
SECTION 2. AMENDMENTS. The Loan and Security Agreement shall
be, and upon the fulfillment of the conditions set forth in Section 4 hereof is,
amended as follows:
2.1. The definition of "Applicable Margin" in Section 1.1 of
the Loan and Security Agreement is amended by adding the phrase "(3.00% on and
after March 1, 2004)" immediately after the percentage "2.50%" in clause (ii)
thereof.
2.2. The definition of "Availability" in Section 1.1 of the
Loan and Security Agreement is amended by (i) deleting the word "or" immediately
before clause (a)(iv) thereof and (ii) adding the following immediately after
such clause (a)(iv) before the semicolon:
", (v) if and so long as any Senior Refinancing Notes remain
outstanding, the maximum amount permitted under the indenture
governing the Senior Refinancing Notes that the Borrower may
borrow under the revolving credit facility provided hereunder
or (vi) if and so long as any Junior Subordinated Debt remains
outstanding, the maximum amount permitted under the note
purchase agreement governing the Junior Subordinated Debt that
the Borrower may borrow under the revolving credit facility
provided hereunder"
2.3. Clause (v) of the definition of "Change of Control" in
Section 1.1 of the Loan and Security Agreement is amended in
its entirety to read as follows:
"(v) there shall occur a "Change of Control" (as such term is
defined in the indenture governing any of the Xxxxx Senior
Subordinated Notes, the Senior Exchange Notes (if outstanding)
or the Senior Refinancing Notes (if issued) or the note
purchase agreement governing the Junior Subordinated Debt);
or"
2.4. The definition of "Commitment" in Section 1.1 of the Loan
and Security Agreement is amended by adding the phrase "and
the definition of Maximum Revolver Amount" immediately after
the words "Sections 4.5(b) and Section 13.3".
2.5. The definition of "Fixed Charge Component" in Section 1.1
of the Loan and Security Agreement is amended by adding the
words "any payment made with proceeds of Junior Subordinated
Debt or" to the beginning of clause (y) of the parenthetical
contained in clause (v) of such definition immediately before
the words "any payment made with proceeds".
2.6. New definition "Xxxxx Fixed Assets Collateral" is added
to Section 1.1 of the Loan and Security Agreement and reads as
follows:
`"Xxxxx Fixed Assets Collateral" means those Fixed Assets of
the Borrower that are used exclusively in the Xxxxx business
unit of the Borrower and have not at any time been used by any
other business unit of the Borrower (including, without
limitation, the Sweetheart Cup business unit of the
Borrower).'
2.7. The definition of "Maximum Revolver Amount" in Section
1.1 of the Loan and Security Agreement is amended by adding the following
proviso thereto immediately before the phrase", as reduced as provided in
Section 4.5(b)":
"(provided, that upon the issuance of any Senior Refinancing
Notes, the Maximum Revolver Amount in effect at such time
shall be permanently reduced to $205,000,000, at which time
the Commitment of each Lender shall be permanently reduced
accordingly based upon each Lender's Pro Rata Share at such
time)"
2.8. The definition of "Permitted Liens" in Section 1.1 of the
Loan and Security Agreement is amended by (i) deleting the
word "and" at the end of clause (n) thereof, (ii) deleting the
period at the end of clause (o) thereof and substituting
therefor "; and" and (iii) adding the following clause (p)
thereto:
"(p) Liens, if any, granted by the Borrower on Xxxxx Fixed
Assets Collateral securing the obligations of the Borrower
under the Senior Refinancing Notes (but only upon (x) the
redemption and/or payment in full of the Senior Exchange Notes
with the proceeds thereof and proceeds of Junior Subordinated
Debt and (y) the holders of the Senior Refinancing Notes (or a
trustee on their behalf) and the Agent having entered into an
intercreditor agreement in form, scope and substance
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satisfactory to the Agent), subject to the terms and
conditions set forth in such intercreditor agreement and in
this Agreement."
2.9. New definitions "Senior Refinancing Notes" and "Junior
Subordinated Debt" are added to Section 1.1 of the Loan and
Security Agreement and read as follows:
`"Senior Refinancing Notes" means the senior secured notes
contemplated to be issued by the Borrower (subject to and to the extent
permitted by the terms of this Agreement) to refinance, together with
proceeds of Junior Subordinated Debt, all of the outstanding Senior
Exchange Notes, which Senior Refinancing Notes shall be issued in an
aggregate principal amount not to exceed $100,000,000.
"Junior Subordinated Debt" means the unsecured junior
subordinated debt contemplated to be issued by the Borrower (subject to
and to the extent permitted by the terms of this Agreement) in favor of
a supplier of the Borrower acceptable to the Agent and the Majority
Lenders in an aggregate principal amount not to exceed $20,000,000.'
2.10. The definition of "Stated Termination Date" in Section
1.1 of the Loan and Security Agreement is amended in its entirety to read as
follows:
`"Stated Termination Date" means August 1, 2006.'
2.11. The definition of "Transaction Documents" in Section 1.1
of the Loan and Security Agreement is amended by (i) adding the words "the
Senior Refinancing Notes (but only if issued)," immediately after the words "the
Senior Replacement Notes (but only if issued)," contained therein and (ii)
adding the words ", the notes and note purchase agreement evidencing and/or
governing the Junior Subordinated Debt" immediately after the words "the Secured
Sale/Leaseback Documents" contained therein.
2.12. Section 4.2 of the Loan and Security Agreement is
amended by adding the following sentence to the end thereof:
"Notwithstanding the foregoing, such early termination fee
shall not be payable if this Agreement is terminated prior to
December 31, 2004 solely because of the sale of all of the
equity interests of the Borrower or Parent to a non-Affiliated
Person or the sale of all or substantially all of the equity
interests of SF Holdings to a non-Affiliated Person."
2.13. Section 4.5 of the Loan and Security Agreement is
amended by (i) adding immediately after the second sentence in subsection (a) of
such Section the sentence "The Borrower shall use proceeds of Junior
Subordinated Debt to prepay the Term Loans in full.", (ii) adding the words "or
note purchase agreement" immediately after the words "relevant indenture" in the
proviso to the first sentence in subsection (b) of such Section, (iii) adding
the words "or redeem" immediately after the words "that the Borrower offer to
purchase" in the proviso referred to in clause (ii) above, (iv) adding the words
", Senior Refinancing Notes, notes evidencing Junior Subordinated Debt"
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immediately after the words "Xxxxx Senior Subordinated Notes" in the proviso
referred to in clause (ii) above, (v) deleting all references to the phrase
"Senior Replacement Notes" in subsection (b) of such Section and substituting
therefor the phrase "Senior Refinancing Notes" and (vi) deleting the words
"Equipment" and "Section 6.1 (a)(v)" in clause (v) of the first parenthetical in
subsection (b) of such Section and substituting therefor, respectively, the
words "Xxxxx Fixed Assets Collateral" and "Section 6.1(a)(v) or 6.1 (d), as the
case may be,"
2.14. Section 6.1(a)(v) of the Loan and Security Agreement is
amended by deleting clauses (2) and (3) of the proviso thereto and substituting
the following therefor:
"and (2) upon and after payment or redemption in full of the
Senior Exchange Notes with the proceeds of the Senior
Refinancing Notes and proceeds of Junior Subordinated Debt,
Equipment of the Borrower to the extent both constituting
Xxxxx Fixed Assets Collateral and securing the payment of the
Senior Refinancing Notes shall not constitute Collateral
hereunder, but only (i) after the holders of the Senior
Refinancing Notes (or a trustee on their behalf) and the Agent
enter into an intercreditor agreement in form, scope and
substance satisfactory to the Agent and (ii) if such Equipment
is not collateral security for the payment of any obligations
of the Borrower or Parent under the Secured Sale/Leaseback
Documents"
2.15. Section 6.1(d) of the Loan and Security Agreement is
amended by (i) deleting the proviso in the first sentence thereof and (ii)
amending in its entirety the last sentence of such Section 6.1(d) to read as
follows:
"Upon and after the payment or redemption in full of the
Senior Exchange Notes with the proceeds of the Senior
Refinancing Notes and proceeds of Junior Subordinated Debt,
real property of the Borrower to the extent both constituting
Xxxxx Fixed Assets Collateral and securing the payment of the
Senior Refinancing Notes shall not constitute Collateral
hereunder and the Agent shall release its security interest
and mortgage, if any, thereon, but only (i) after the holders
of the Senior Refinancing Notes (or a trustee on their behalf)
and the Agent enter into an intercreditor agreement in form,
scope and substance satisfactory to the Agent and (ii) if such
real property is not collateral security for the payment of
any obligations of the Borrower or Parent under the Secured
Sale/Leaseback Documents."
2.16. Section 6.11(c) of the Loan and Security Agreement is
amended by deleting all references therein to the phrase "Senior Replacement
Notes" and substituting therefor the phrase "Senior Refinancing Notes".
2.17. Section 8.1 of the Loan and Security Agreement is
amended by (i) deleting the word "and" at the end of clause (iii) of the last
sentence of such section and substituting therefor a comma and (ii) adding the
following at the end of such last sentence immediately prior to the period:
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"and (v) with respect to any such borrowing, issuance or
delivery made on or after the issuance of the Senior
Refinancing Notes (if issued) or the issuance of the Junior
Subordinated Debt (if issued), the indenture or note purchase
agreement, as applicable, relating to such notes or Debt"
2.18. Section 8.24 of the Loan and Security Agreement is
amended by adding the following sentences immediately prior to the last sentence
of such Section:
"The proceeds of the Senior Refinancing Notes (when and if
issued) are to be used by the Borrower to redeem or otherwise
acquire all of the Senior Exchange Notes and to pay all fees
and expenses incurred by the Borrower in connection with the
issuance of the Senior Refinancing Notes; provided that in any
event the Borrower shall have issued Senior Refinancing Notes
in an amount such that the net cash proceeds thereof, together
with the proceeds of the Junior Subordinated Debt not used to
repay the Term Loans, are sufficient for the Borrower to
redeem or otherwise acquire in full all of the Senior Exchange
Notes and to pay all fees and expenses incurred by the
Borrower in connection with the issuance of the Senior
Refinancing Notes. The proceeds of the Junior Subordinated
Debt are to be used to repay in full the Term Loans with any
excess proceeds to be used to repay Senior Exchange Notes."
2.19. Section 9.10(A) of the Loan and Security Agreement is
amended by adding the words ", the Senior Refinancing Notes" immediately after
the words "the Senior Replacement Notes" in clause (c)(x) thereof.
2.20. Section 9.10(L) of the Loan and Security Agreement is
amended by deleting clause (iii) thereof and the word "and" immediately
preceding such clause and substituting the following therefor:
", (iii) such payment is permitted to be made under the
indenture for each of the Xxxxx Senior Subordinated Notes, the
Senior Exchange Notes and the Senior Refinancing Notes (if
issued) and (iv) the aggregate amount of all such payments
made by the Borrower in any fiscal quarter of the Borrower
shall not exceed an amount equal to (x) $3,689,999 less (y)
the aggregate amount of all payments made by the Borrower or
Parent under clause (a) of the third sentence of Section 9.15
during such fiscal quarter"
2.21. Section 9.12 of the Loan and Security Agreement is
amended by adding the following to the end thereof immediately prior to the
period:
"and unsecured guaranties by Parent and Domestic Subsidiaries
of the Borrower of the obligations of the Borrower under the Senior Refinancing
Notes"
2.22. Section 9.13 of the Loan and Security Agreement is
amended by (i) deleting the word "and" at the end of clause (j) of such Section,
(ii) deleting the period at the end of clause (k) of such Section and
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substituting therefor "; and" and (iii) adding new clauses (l) and (m) to the
end of such Section which read as follows:
"(l) secured Debt under the Senior Refinancing Notes issued
solely to refinance all of the Debt under the Senior Exchange
Notes and to pay all fees and expenses incurred by the
Borrower in connection with the issuance of the Senior
Refinancing Notes (which Debt under the Senior Refinancing
Notes shall have such terms and conditions, and be issued
pursuant to documentation, satisfactory to the Agent and the
Majority Lenders), but no increases in the principal amount
thereof and no refinancings or renewals thereof; and
(m) the Junior Subordinated Debt, but no increases in the
principal amount thereof and no refinancings or renewals
thereof."
2.23. Section 9.14 of the Loan and Security Agreement is
amended by (i) adding the words ", the Senior Refinancing Notes, the Junior
Subordinated Debt" immediately after the words "the Senior Subordinated Notes,
the Xxxxx Senior Subordinated Notes, the Senior Exchange Notes" in the second
parenthetical in the first sentence of such Section, in clause (ii) of such
first sentence and in the second sentence of such Section, (ii) deleting the
word "and" at the end of clause (iv) of the first sentence of such Section and
substituting a comma therefor, (iii) adding a new clause (vi) at the end of
clause (v) of the first sentence of such Section immediately before the period
which reads as follows:
"and (vi) all (and not less than all) of the Senior Exchange
Notes with proceeds of Junior Subordinated Debt and the Senior
Refinancing Notes (which Senior Refinancing Notes and
indenture governing same shall be satisfactory to the Agent
and the Majority Lenders)"
, (iv) adding the words ", the Senior Exchange Notes" immediately after the
words "Senior Subordinated Notes" in the parenthetical in the second sentence of
such Section and (v) deleting the words "clauses (iii), (iv) and (v)" contained
in the parenthetical in the second sentence of such Section and substituting
therefor the words "clauses (iii), (iv), (v) and (vi)".
2.24. Section 9.17 of the Loan and Security Agreement is
amended by (i) adding the words ", the Senior Refinancing Notes" immediately
before the words "or the Senior Replacement Notes" in the third sentence of such
Section and (ii) adding the words "or any document governing or otherwise
relating to the Junior Subordinated Debt" immediately after the words "or any
indenture or other agreement or document related thereto" in the third sentence
of such Section.
2.25. Section 9.25 of the Loan and Security Agreement is
amended in its entirety to read as follows:
"9.25 Minimum Availability. The Borrower will maintain at all
times Availability (as calculated below) of not less than
$25,000,000 ($20,000,000 during one ninety (90) consecutive
day period falling within the period from November 1 of a
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calendar year through and including May 15 of the immediately
succeeding calendar year, such ninety (90) consecutive day
period to be selected by the Borrower in a writing delivered
to the Agent not later than five (5) Business Days prior to
the commencement of such ninety (90) consecutive day period),
except as permitted by Section 2.2(h). For purposes of this
Section 9.25 only, Availability shall be calculated (i)
without giving effect to the limitation of the Maximum
Revolver Amount set forth in clause (a)(i) thereof and (ii)
giving effect to the addition to the otherwise applicable
calculation thereof of an amount (subject to reduction as
provided in the second succeeding sentence) equal to (x)
unless and until the Agent shall receive, at the sole expense
of the Borrower, a New Conyers, Georgia Equipment Appraisal
(as defined below), $3,162,000 or (y) after the Agent shall
receive, at the sole expense of the Borrower, a New Conyers,
Georgia Equipment Appraisal, 75% of the Conyers, Georgia
Equipment Orderly Liquidation Value (as defined below), in
either instance of clause (x) or (y), reduced by 1/60 of the
amount of such clause (x) or (y), as the case may be, for each
completed calendar month, in the case of clause (x), after
November 2003 and, in the case of clause (y), after the
Agent's receipt of the New Conyers, Georgia Equipment
Appraisal (including the calendar month in which such
appraisal is received by the Agent). Further, for purposes of
this Section 9.25, (a) "New Conyers, Georgia Equipment
Appraisal" means an appraisal of the orderly liquidation value
of the Equipment of the Borrower located in Conyers, Georgia
conducted on or after December 1, 2003 by an appraiser
satisfactory to the Agent, which appraisal shall be in form,
scope and substance satisfactory to the Agent, and (b)
"Conyers, Georgia Equipment Orderly Liquidation Value" means
the orderly liquidation value (which in any event shall give
effect to all costs and expenses of liquidation), as
determined by the New Conyers, Georgia Equipment Appraisal, of
the Equipment of the Borrower located in Conyers, Georgia in
which the Agent has a first priority perfected Lien. In the
event that the Agent shall, after its receipt of the New
Conyers, Georgia Equipment Appraisal, obtain an orderly
liquidation value appraisal of the Equipment of the Borrower
located in New Conyers, Georgia which shows a lower orderly
liquidation value than shown in the New Conyers, Georgia
Equipment Appraisal, the Agent may, in its discretion, reduce
accordingly the amount included in the above Availability
calculation based upon such Equipment (ie. reduce the amount
included in Availability as a result of clause (ii) of the
second preceding sentence). The Borrower understands and
agrees that the Lenders shall have no obligation to provide
any financial accommodations to the Borrower hereunder to the
extent doing so would result in a breach of this Section
9.25."
2.26. Section 9.26 of the Loan and Security Agreement is
amended by deleting the ratios "1.10/1" and "1.15/1" used in such Section for
fiscal quarters of the Borrower in the 2004 through 2007 Fiscal Years and
substituting therefor the ratio "1.05/1".
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2.27. Section 11.1(d) of the Loan and Security Agreement is
amended by adding the words ", the Senior Refinancing Notes, the Junior
Subordinated Debt" immediately after each usage of the words "Xxxxx Senior
Subordinated Notes" in such Section.
2.28. Section 11.1(t) of the Loan and Security Agreement is
amended in its entirety to read as follows:
"(t) on or prior to December 31, 2003, all of the Senior
Exchange Notes are not refinanced, repaid or extended on terms
acceptable to the Agent and the Majority Lenders."
2.29 Section 13.2 of the Loan and Security Agreement is
amended by adding the phrase "or amend or waive Section 11.1(t)" at the end of
clause (i) thereof immediately before the semicolon.
SECTION 3. SALE OF COLLATERAL SECURING SENIOR REFINANCING
NOTES. Each of the Borrower and Holdings agrees that, notwithstanding anything
to the contrary in the Loan and Security Agreement, without the prior written
consent of the Agent and the Majority Lenders (i) the Borrower shall not
transfer to Holdings or any Subsidiary of Holdings or the Borrower any of the
collateral at any time securing any of the Senior Refinancing Notes (the "Senior
Refinancing Note Collateral"), (ii) the Borrower shall not sell or otherwise
transfer or dispose of any Senior Refinancing Note Collateral if such sale,
transfer or disposition would, pursuant to the terms of the indenture governing
the Senior Refinancing Notes, require the Borrower to offer to redeem or
purchase any of the Senior Refinancing Notes, (iii) the Borrower shall not
directly or indirectly use the proceeds of any Senior Refinancing Note
Collateral to purchase or acquire any equity interests or assets (other than
assets constituting Xxxxx Fixed Assets Collateral and which shall at all times
after such purchase or acquisition continue to constitute Xxxxx Fixed Assets
Collateral) and (iv) neither Holdings nor any Subsidiary of the Borrower shall
grant a security interest in any of its assets to secure any obligations with
respect to the Senior Refinancing Notes or any guaranty thereof. The failure of
the Borrower to comply with the foregoing sentence shall constitute an Event of
Default.
SECTION 4. EFFECTIVENESS. This Amendment shall become
effective upon satisfaction of the following conditions:
(a) the Agent receiving counterparts hereof duly executed and
delivered by the Borrower, Holdings, the Lenders and the Agent;
(b) the Agent receiving for the ratable benefit of the Lenders
an amendment fee in the amount of $200,000; and
(c) all Term Loans having been paid in full.
SECTION 5. RELEASE FEE. The Borrower agrees that if the
Agent's Liens in any Xxxxx Fixed Assets Collateral is released in connection
with the issuance of the Senior Refinancing Notes as contemplated by Section 6.1
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of the Loan and Security Agreement as amended hereby, then the Borrower shall,
on the first Business Day of the month following the month in which such release
is effected, pay to the Agent for the ratable benefit of the Lenders a release
fee in the amount of $800,000. The release fee shall be fully earned upon the
release of the Agent's Liens in any Xxxxx Fixed Assets Collateral as aforesaid
and shall be non-refundable.
SECTION 6. EQUIPMENT APPRAISALS. Without limitation of any
other rights of the Agent or any Lender under the Loan and Security Agreement to
obtain or request appraisals at the expense of the Borrower, in the event that
by March 31, 2004 the Loan and Security Agreement is not terminated and all
Obligations are not paid in full, then the Agent may, at the expense of the
Borrower, engage an appraiser to conduct and deliver to the Agent updated
appraisals of all of the Equipment of the Borrower constituting Collateral which
is located in Conyers, Georgia or otherwise in which the Agent has a first
priority Lien, such appraisals to be in form and scope and by an appraiser
satisfactory to the Agent and using a methodology requested by the Agent. The
foregoing shall not be applicable to Equipment of the Borrower located in
Conyers, Georgia if prior to March 31, 2004 the Agent has received the New
Conyers, Georgia Equipment Appraisal (as defined in Section 2.25 above).
SECTION 7. INTERCREDITOR AGREEMENT. Each Lender hereby grants
to the Agent all requisite authority to enter into or otherwise become bound by
the intercreditor agreement referred to in Sections 2.14 and 2.15 above and to
bind the Lenders thereto by the Agent's entering into or otherwise becoming
bound thereby, and no further consent or approval on the part of the Lenders is
or will be required in connection with the performance of such intercreditor
agreement.
SECTION 8. COUNTERPARTS. This Amendment may be executed in
counterparts, each of which shall be an original, and all of which, taken
together, shall constitute a single instrument. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 9. REFERENCES TO LOAN AND SECURITY AGREEMENT. From and
after the effectiveness of this Amendment and the amendments contemplated
hereby, all references in the Loan and Security Agreement to "this Agreement",
"hereof", "herein", and similar terms shall mean and refer to the Loan and
Security Agreement, as amended and modified by this Amendment, and all
references in other documents to the Loan and Security Agreement shall mean such
agreement as amended and modified by this Amendment.
SECTION 10. RATIFICATION AND CONFIRMATION. The Loan and
Security Agreement is hereby ratified and confirmed and, except as herein
agreed, remains in full force and effect. Each of the Borrower and Holdings
represents and warrants that after giving effect to this Amendment (i) all
representations and warranties contained in the Loan Documents are true and
correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date hereof
(except to the extent that such representations or warranties expressly related
to a specified prior date) and (ii) there exists no Default or Event of Default.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
SWEETHEART CUP COMPANY INC.
By:
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Name:
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Title:
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SWEETHEART HOLDINGS INC.
By:
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Name:
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Title:
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BANK OF AMERICA, N.A.
Individually and as Agent
By:
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Name:
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Title:
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CONGRESS FINANCIAL CORPORATION
By:
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Name:
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Title:
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WHITEHALL BUSINESS CREDIT CORPORATION
By:
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Name:
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Title:
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TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By:
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Name:
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Title:
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PNC BANK, NATIONAL ASSOCIATION
By:
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Name:
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Title:
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NATIONAL CITY COMMERCIAL FINANCE, INC.
By:
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Name:
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Title:
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XXXXX FARGO FOOTHILL, INC.
By:
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Name:
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Title:
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THE CIT GROUP/BUSINESS CREDIT, INC.
By:
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Name:
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Title:
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