OMNIBUS AMENDMENT AND WAIVER AGREEMENT
EXHIBIT
10.6
This OMNIBUS
AMENDMENT AND WAIVER AGREEMENT (this “Amendment”), dated as
of March 10, 2008, is entered into by and among Caterpillar Inc. (“Caterpillar”),
Caterpillar Financial Services Corporation (“CFSC”), Caterpillar
Finance Corporation (“CFC”), Caterpillar
International Finance p.l.c. (“CIF”, and together
with Caterpillar, CFSC and CFC, the “Borrowers”), the
Banks and Local Currency Banks party hereto (collectively, the “Banks”), Citibank
International plc, as the Local Currency Agent (the “Local Currency
Agent”) and Citibank, N.A., as Agent (the “Administrative
Agent”) under the Credit Agreement (as defined below), with respect to
(a) the Credit Agreement and (b) the Local Currency Addendum (as defined
below). Each capitalized term used herein and not defined herein
shall have the meaning ascribed thereto in the Credit Agreement.
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PRELIMINARY
STATEMENTS
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A. The Borrowers, the
Banks, the Administrative Agent, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as
Japan Local Currency Agent and as Japan Local Currency Bank, and the Local
Currency Agent are parties to the Credit Agreement (Five-Year Facility), dated
as of September 21, 2006 (as amended on September 20, 2007, the “Credit
Agreement”). The Borrowers have requested that the Banks and
the Administrative Agent amend the Credit Agreement as hereinafter set forth,
and the Banks and the Administrative Agent have agreed to amend the Credit
Agreement pursuant to the terms of this Amendment.
B. CFSC, CIF, the Local
Currency Banks, the Local Currency Agent and the Administrative Agent are
parties to the Local Currency Addendum, dated as of September 21, 2006 (the
“Addendum”), to
the Credit Agreement. CFSC and CIF have requested that the Local
Currency Banks, the Local Currency Agent and the Administrative Agent amend the
Addendum as hereinafter set forth, and the Local Currency Banks, the Local
Currency Agent and the Administrative Agent have agreed to amend the Addendum
pursuant to the terms of this Amendment.
C. CIF, being, as of the
date of this Amendment, a public limited company, plans to
re-register as a private company under section 14(6) of the Irish Companies
(Amendment) ▇▇▇ ▇▇▇▇ with the name “Caterpillar International Finance Limited”
(the “CIF
Re-Registration”). Section 14(6) of the Companies
(Amendment) ▇▇▇ ▇▇▇▇ provides that the:
re-registration of a
public limited company as a private company pursuant to this Act shall not
affect any rights or obligations of the company or render defective any legal
proceedings by or against the company, and any legal proceedings which might
have been continued or commenced against it in its former status may be
continued or commenced against it in its new status.
Therefore, the
proposed re-registration of CIF as a private company does not affect CIF’s
obligations under the Credit Agreement and the Addendum. For the avoidance of
doubt, the Borrowers, the Banks, the Local Currency Agent and the Administrative
Agent have agreed to enter into this Amendment to memorialize the proposed
re-registration of CIF as a private company and its confirmation that its
obligations under the Credit Agreement and Addendum are not affected
thereby.
D. Subsequent to the CIF
Re-Registration, CIF proposes to transfer substantially all of its assets
(consisting primarily of loans to affiliates of CFSC) to a wholly-owned
subsidiary of CIF, Caterpillar International Finance Luxembourg S.ar.l (“CIF Lux”), in return
for the issue of certain preferred equity certificates of CIF Lux (the “CIF Asset
Transfer”). The
Borrowers have requested that the Banks agree to irrevocably waive any Event of
Default or unmatured Event of Default that may arise under Section 6.01(c) of
the Credit Agreement as a result of the CIF Asset Transfer, and the Banks have
agreed to grant such irrevocable waiver pursuant to the terms
hereof.
SECTION
1. CIF
Confirmation.
CIF confirms that
it will, upon the CIF Re-Registration taking effect, remain (a) liable for all
of its obligations under the Credit Agreement and the Addendum, and (b) a
“Borrower” under the Credit Agreement, the Addendum, and the Notes, and all
references in the Credit Agreement, the Addendum and the Notes to “Caterpillar
International Finance p.l.c.” or “CIF” shall, for the avoidance of doubt, be
references to Caterpillar International Finance Limited. CIF hereby
represents and warrants that the representations and warranties by or relating
to CIF set forth in Article IV of the
Credit Agreement, as amended by this Amendment, are true and correct on and as
of the date hereof and will be true and correct upon the CIF
Re-Registration.
SECTION
2. Amendments
to the Addendum.
Subject to the
satisfaction of the condition precedent set forth in Section 6
below:
Section 4.03(a) of the Addendum is hereby amended and restated in
its entirety as follows:
(a) if to CIF, prior to
March 25, 2008, at Caterpillar International Finance p.l.c. (after the CIF
Re-Registration, Caterpillar International Finance Limited), ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Director (Facsimile
No. 353-1-670-0546) and from and after March 25, 2008, at ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Director
(Facsimile No. 1 615 341-8596), with a copy to CFSC at its address and telecopy
number referenced in Section 8.02 of the
Credit Agreement;
SECTION
3. Limited
Waiver.
Effective as of the
date hereof, subject to the satisfaction of the condition precedent set forth in
Section 6
below, the Banks hereby irrevocably waive any Event of Default or unmatured
Event of Default that would otherwise result under Section 6.01(c) of the Credit
Agreement solely as a result of the CIF Asset Transfer. This
irrevocable waiver shall not be deemed to constitute a waiver of any other Event
of Default or unmatured Event of Default, any future breach of the Credit
Agreement, or any future breach of the other agreements, documents and
instruments delivered in connection with the Credit Agreement. The
agreement to the terms hereof by any of the Banks, the Administrative Agent or
the Local Currency Agent shall not establish a custom or course of dealing among
the Administrative Agent, the Local Currency Agent, any Bank or any
Borrower.
SECTION
4. Further
Assurances.
CIF and each of the
other Borrowers shall execute such other documents or instruments as may be
reasonably requested by the Administrative Agent, the Local Currency Agent or
any of the Banks in connection with this Amendment, the CIF Asset Transfer and
the CIF Re-Registration. Without limiting the generality of the
foregoing, the Borrowers agree that within ten (10) Business Days after the CIF
Re-Registration, CIF will deliver to the Administrative Agent an opinion from
Irish counsel for CIF, substantially in the form attached hereto as Exhibit A,
that the CIF Re-Registration has become effective under Irish law.
SECTION
5. Reaffirmation
of CFSC Guaranty.
CFSC hereby
reaffirms all of its obligations under Article IX of the Credit Agreement and
acknowledges and agrees that such obligations remain in full force and effect
and are hereby ratified, reaffirmed and confirmed.
SECTION
6. Conditions
Precedent.
This Amendment
shall be deemed effective as of the date hereof upon the Administrative Agent
having received duly executed copies of this Amendment from each Borrower, the
Majority Banks and the Majority Local Currency Banks, provided that this
Amendment shall cease to be effective if the CIF Re-Registration has not
occurred by April 30, 2008. The Administrative Agent shall notify the
Borrowers within two (2) Business Days after the date that the Administrative
Agent receives the requisite duly executed copies of this Amendment from the
Majority Banks and the Majority Local Currency Banks.
SECTION
7. Covenants,
Representations and Warranties of the Borrowers.
7.1 Upon the
effectiveness of this Amendment, each Borrower hereby reaffirms all covenants,
representations and warranties made by it in the Credit Agreement, as amended
hereby and giving effect to that certain Waiver to Credit Agreement (Five Year
Facility), dated as of November 26, 2007, among the Borrowers, the Banks, the
Administrative Agent, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as Japan Local
Currency Agent and as Japan Local Currency Bank, and the Local Currency Agent
(the “Waiver”), and
agrees that all such covenants, representations and warranties shall be deemed
to have been re-made as of the effective date of this Amendment.
7.2 Each Borrower
hereby represents and warrants that (a) this Amendment constitutes a legal,
valid and binding obligation of such Borrower, enforceable against such Borrower
in accordance with its terms, except as enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditor’s rights generally and by the effect of
general principles of equity and (b) upon the effectiveness of this Amendment,
no Event of Default shall exist with respect to such Borrower and no event shall
exist which, with the giving of notice, the lapse of time or both, would
constitute an Event of Default with respect to such Borrower except, in both
cases, for those Events of Default, either matured or unmatured, as described in
the Waiver.
SECTION
8. Reference
to and Effect on the Credit Agreement.
8.1 Upon the
effectiveness of this Amendment, each reference in (a) the Credit Agreement to
“this Agreement”, “hereunder”, “hereof”, “herein” or words of like import shall
mean and be a reference to the Credit Agreement, as amended hereby, and each
reference to the Credit Agreement in any other document, instrument or agreement
executed and/or delivered in connection with the Credit Agreement shall mean and
be a reference to the Credit Agreement as amended hereby and (b) the Addendum to
“this Addendum”, “hereunder”, “hereof”, “herein” or words of like import shall
mean and be a reference to the Addendum, as amended hereby, and each reference
to the Addendum in any other document, instrument or agreement executed and/or
delivered in connection with the Addendum shall mean and be a reference to the
Addendum as amended hereby
8.2 Except as
specifically amended or waived above, the Credit Agreement, the Addendum, the
Notes and all other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and effect and are
hereby ratified and confirmed.
8.3 The execution,
delivery and effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of any party under the Credit Agreement, the
Addendum, the Notes or any other document, instrument or agreement executed in
connection therewith, nor constitute a waiver of any provision contained
therein, except as specifically set forth herein.
SECTION
9. Execution
in Counterparts.
This Amendment may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument. Delivery of a signature page by facsimile
transmission shall be as effective as manual delivery thereof.
SECTION
10. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of the
State of New York.
SECTION
11. Headings.
Section headings in
this Amendment are included herein for convenience of reference only and shall
not constitute a part of this Amendment for any other purpose.
IN WITNESS WHEREOF,
the parties hereto have caused this Amendment to be executed by their respective
representatives thereunto duly authorized as of the date first above
written.
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CATERPILLAR
INC.
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By:
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/s/ ▇▇▇▇▇ ▇.
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Name:
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▇▇▇▇▇ ▇.
▇▇▇▇▇▇
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Title:
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Treasurer
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
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Title:
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Treasurer
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CATERPILLAR
INTERNATIONAL FINANCE p.l.c.
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
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Title:
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Director
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CATERPILLAR
FINANCE CORPORATION
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
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Title:
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Director
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CITIBANK,
N.A., as Agent
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By:
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/s/ ▇▇▇▇▇
▇▇▇
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Name:
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▇▇▇▇▇
▇▇▇
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Title:
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Vice
President
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CITIBANK,
N.A., as a Bank and as a Local Currency Bank
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By:
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/s/ ▇▇▇▇▇
▇▇▇
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Name:
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▇▇▇▇▇
▇▇▇
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Title:
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Vice
President
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CITIBANK
INTERNATIONAL plc, as Local Currency Agent
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By:
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/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Title:
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Senior
Specialist
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JPMORGAN
CHASE BANK, N.A.
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By:
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/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇
▇▇▇▇▇
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Title:
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Executive
Director
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BANK
OF AMERICA, N.A.
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By:
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/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
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Title:
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Senior Vice
President
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ABN
AMRO Bank N.V., as a Bank and as Local Currency Bank
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By:
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/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇▇▇
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Title:
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Managing
Director
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By:
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/s/ ▇▇▇▇▇▇▇
▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇
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Title:
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Director
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BARCLAYS
BANK PLC, as a Bank and as a Local Currency Bank
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By:
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/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇
▇▇▇▇
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Title:
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Director
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SOCIETE
GENERALE, as a Bank and as a Local Currency Bank
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By:
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/s/ ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
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Title:
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Director
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ROYAL
BANK OF CANADA, as a Bank
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By:
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/s/ ▇▇▇▇▇▇▇▇
Majesty
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Name:
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▇▇▇▇▇▇▇▇
Majesty
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Title:
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Authorized
Signatory
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ROYAL
BANK OF CANADA, acting through its London Branch, as a Local Currency
Bank
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By:
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/s/ ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Title:
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Managing
Director
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WestLB
AG, New York Branch, as a Bank and as a Local Currency
Bank
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By:
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/s/ ▇▇▇▇▇
▇▇▇▇▇▇
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Name:
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▇▇▇▇▇
▇▇▇▇▇▇
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Title:
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Managing
Director
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By:
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/s/ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
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Title:
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Managing
Director
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TORONTO
DOMINION (TEXAS) LLC, as a Bank
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By:
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/s/ ▇▇▇▇▇ ▇.
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Name:
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▇▇▇▇▇ ▇.
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Title:
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Authorized
Signatory
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STANDARD
CHARTERED BANK
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By:
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/s/ ▇▇▇▇▇
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Name:
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▇▇▇▇▇
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Title:
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Associate
Director
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By:
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/s/ ▇▇▇▇▇▇ ▇.
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Name:
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▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
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Title:
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AVP/Credit
Documentation
Credit Risk
Control
Standard
Chartered Bank N.V.
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Australia
and New Zealand Banking Group Limited, as a Bank
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By:
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/s/ ▇▇▇▇ ▇.
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Name:
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▇▇▇▇ ▇.
▇▇▇▇
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Title:
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Director
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THE
BANK OF TOKYO-MITSUBISHI UFJ LTD., as a Bank
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By:
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/s/ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Title:
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Authorized
Signatory
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LLOYDS
TSB BANK PLC, as a Bank
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By:
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/s/ Windsor
▇. ▇▇▇▇▇▇
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Name:
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Windsor ▇.
▇▇▇▇▇▇
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Title:
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Managing
Director
Corporate
Banking USA
D061
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By:
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/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
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Title:
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Director
Corporate
Banking USA
C103
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▇▇▇▇▇▇▇
▇▇▇▇▇ BANK USA, as a Bank and as a Local Currency Bank
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By:
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/s/ ▇▇▇▇▇
▇▇▇▇▇
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Name:
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▇▇▇▇▇
▇▇▇▇▇
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Title:
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Vice
President
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COMMERZBANK
AG NEW YORK AND GRAND CAYMAN BRANCHES, as a Bank and as a Local Currency
Bank
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By:
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/s/ ▇▇
▇▇▇▇▇▇
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Name:
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▇▇
▇▇▇▇▇▇
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Title:
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Assistant
Vice President
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By:
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/s/ ▇▇▇▇
▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇▇
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Title:
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Senior Vice
President
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ING
Bank N.V. Dublin Branch, as a Bank and as a Local Currency
Bank
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By:
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/s/ ▇▇▇▇
▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇
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Title:
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Vice
President
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By:
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/s/ ▇▇▇▇
▇▇▇▇▇▇▇
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Name:
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▇▇▇▇
▇▇▇▇▇▇▇
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Title:
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Director
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U.S.
Bank National Association, as a Bank
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
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Title:
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Senior Vice
President
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Mellon
Bank, N.A., as a Bank
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By:
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/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
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Title:
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First Vice
President
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