SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.43
SECOND AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
Dated as of December 9, 2004
among
XXXXXX LEASE FINANCE CORPORATION,
as Borrower,
CERTAIN BANKING INSTITUTIONS NAMED HEREIN,
NATIONAL CITY BANK,
as Administrative Agent,
and
FORTIS BANK (NEDERLAND) N.V.,
as Structuring Agent and Security Agent,
Vedder, Price, Xxxxxxx & Kammholz
Chicago, Illinois
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 9, 2004 (this “Amendment”), is entered into by and among XXXXXX LEASE FINANCE CORPORATION, a Delaware corporation (the “Borrower”), the banking institutions signatories hereto and named in Exhibit A attached hereto and such other institutions that hereafter become a “Bank” pursuant to Section 11.4 of the Agreement (as defined below) (collectively the “Banks” and individually a “Bank”), NATIONAL CITY BANK, as Administrative Agent and FORTIS BANK (NEDERLAND) N.V., as Security Agent and Structuring Agent.
RECITALS
WHEREAS, the Borrower, the Administrative Agent, the Structuring Agent, and the Security Agent (in their respective capacities as Agents and as Banks) and the Banks have entered into that certain Amended and Restated Credit Agreement dated as of June 29, 2004 (the “Original Agreement”), as amended by the First Amendment to Amended and Restated Credit Agreement dated as of September 24, 2004 (the “First Amendment”; the Original Agreement as amended by the First Amendment is referred to as the “Agreement”) pursuant to which the Banks have agreed to make available to the Borrower a revolving credit facility used for the purchase or refinance of Engines and Equipment;
WHEREAS, Kaupthing Bank has agreed to commit the amount of Ten Million Dollars (US$10,000,000) towards the Aggregate Revolving Loan Commitment, as set forth herein;
WHEREAS, the amount of the Aggregate Revolving Loan Commitment will be increased to One Hundred Forty Eight Million Five Hundred Thousand Dollars (US$148,500,000);
WHEREAS, all of the Banks have approved such increase; and
WHEREAS, CDC Finance – CDC IXIS, a corporation organized and existing under the laws of the Republic of France (“CDC IXIS”), desires to assign its Revolving Loan Commitment.
NOW, THEREFORE, in consideration of the premises and promises hereinafter set forth and intending to be legally bound hereby, the parties hereto agree as follows:
AGREEMENT
Section 1. Definitions. Terms not defined herein shall have the meanings ascribed thereto in the Agreement.
Section 2. Exhibits. Exhibit A to the Agreement is hereby deleted in its entirety and replaced with Exhibit A attached hereto.
Section 3. Assignment. The Borrower and the Structuring Agent hereby consent for the purposes of Section 11.4 of the Agreement (and as previously described in Section 2 of the
First Amendment) to CDC IXIS’s assignment of its Revolving Loan Commitment in the amount of US$10,000,000 to IXIS Corporate & Investment Bank, a company incorporated in France whose registered office is at 47 Quai d’Austerlitz, 75648 Xxxxx Xxxxx 00, Xxxxxx, effective as of the date hereof.
Section 4. Ratification. Except as amended hereby, the Agreement, as heretofore supplemented, amended, assigned and modified shall continue and shall remain in full force and effect and is hereby ratified in all respects. From and after the date hereof, any and all references to the “Agreement” shall be deemed to refer to the Agreement as amended hereby.
Section 5. Governing Law; Severability; Construction of Amendment. THIS AMENDMENT SHALL BE GOVERNED BY AND BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CALIFORNIA OR FEDERAL PRINCIPLES OF CONFLICTS OF LAWS. To the extent permitted by applicable law, the parties hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect. Otherwise, any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability, without invalidating any of the remaining provisions hereof, and any such prohibition or unenforceability in any one or more jurisdictions shall not invalidate or render unenforceable such provisions in other jurisdictions.
Section 6. Counterparts; Effectiveness. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Amendment shall become effective when the Administrative Agent shall have received signed counterparts or notice by fax of the signature page that the counterpart has been signed and is being delivered to it or by facsimile that such counterparts have been signed by all the parties hereto or thereto.
Section 7. Headings. All section headings contained herein are for convenience of reference only and are not intended to define or limit the scope of any provision of this Amendment.
Section 8. Representations and Warranties. The Borrower hereby represents and warrants to each of the other parties hereto that (i) this Amendment has been duly authorized, executed and delivered by it and (ii) this Amendment constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to be duly executed by their duly authorized representatives as of the date first above written.
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XXXXXX LEASE FINANCE CORPORATION |
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By |
/s/ Xxxxxx X. Xxxxx |
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Name: |
Xxxxxx X. Xxxxx |
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Title: |
Executive Vice President |
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Notices to:
0000 Xxxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Fax No. (000) 000-0000
Attention: General Counsel
Email: xxxxx@xxxxxxxxxxx.xxx
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NATIONAL CITY BANK, |
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as Administrative Agent |
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By |
/s/ Xxxxxxxx Xxxxxxxx |
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Name: |
Xxxxxxxx Xxxxxxxx |
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Title: |
Vice President |
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Notices To:
Xxxxxxxx Xxxxxxxx
Vice President
National City Bank
One South Broad
14th Floor, Locator 01-5997
Xxxxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Email: xxxxx.xxxxxxxx@xxxxxxxxxxxx.xxx
With a copy to:
Xxxxx Xxxxxxxx
Xx. Loan Administrator
National City Bank
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
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NATIONAL CITY BANK |
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By |
/s/ Xxxxxxxx Xxxxxxxx |
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Name: |
Xxxxxxxx Xxxxxxxx |
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Title: |
Vice President |
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Notices To:
Xxxxxxxx Xxxxxxxx
Vice President
National City Bank
One South Broad
14th Floor, Locator 01-5997
Xxxxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Email: xxxxx.xxxxxxxx@xxxxxxxxxxxx.xxx
With a copy to:
Xxxxx Xxxxxxxx
Xx. Loan Administrator
National City Bank
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
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FORTIS BANK (NEDERLAND) N.V., |
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as Structuring Agent |
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By |
/s/ P.R.G. Zaman |
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Name: |
P.R.G. Zaman |
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Title: |
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Name: |
M.P.A. Zondag |
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Title: |
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Notices To:
Fortis Bank (Nederland) N.V.
Xxxxxxxxxx 00
0000 XX Rotterdam
The Netherlands
Attention: Maarten X. Xxxxxxxx
Telephone: 00 00 000 0000
Facsimile: 31 10 401 9529
With a copy to:
Vedder, Price, Xxxxxxx & Kammholz, P.C.
Attention: Xxxxx X. Xxxxxxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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FORTIS BANK (NEDERLAND) N.V., |
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as Security Agent |
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By |
/s/ P.R.G. Zaman |
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Name: |
P.R.G. Zaman |
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Title: |
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Name: |
M.P.A. Zondag |
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Title: |
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Notices To:
Fortis Bank (Nederland) N.V.
Xxxxxxxxxx 00
0000 XX Rotterdam
The Netherlands
Attention: Maarten X. Xxxxxxxx
Telephone: 00 00 000 0000
Facsimile: 31 10 401 9529
With a copy to:
Vedder, Price, Xxxxxxx & Kammholz, P.C.
Attention: Xxxxx X. Xxxxxxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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FORTIS BANK (NEDERLAND) N.V., |
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By |
/s/ P.R.G.
Zaman |
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Name: |
P.R.G. Zaman |
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Title: |
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Name: |
M.P.A. Zondag |
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Title: |
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Notices To:
Fortis Bank (Nederland) N.V.
Xxxxxxxxxx 00
0000 XX Rotterdam
The Netherlands
Attention: Maarten X. Xxxxxxxx
Telephone: 00 00 000 0000
Facsimile: 31 10 401 9529
With a copy to:
Vedder, Price, Xxxxxxx & Kammholz, P.C.
Attention: Xxxxx X. Xxxxxxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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CALIFORNIA BANK AND TRUST |
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By |
/s/ J. Xxxxxxx Xxxxxxxx |
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Name: |
J. Xxxxxxx Xxxxxxxx |
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Title: |
Vice President |
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Notices To:
J. Xxxxxxx Xxxxxxxx
Vice President
California Bank & Trust
South Bay Corporate Banking Xxxxxx
0000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Email: xxxxxxxxx@xxxxx.xxx
With a copy to:
Loan Administrator
California Bank & Trust
San Francisco Corporate Banking Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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CITY NATIONAL BANK |
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By |
/s/ Xxxxx Xxxxxxx Xxxx |
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Name: |
Xxxxx Xxxxxxx Xxxx |
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Title: |
Senior Vice President |
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Notices To:
Xxxxx Xxxxxxx-Xxxx, Senior Vice President
City National Bank – San Francisco CBC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Email: xxxxx.xxxx@xxx.xxx
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XXXXX FARGO BANK, NATIONAL |
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By |
/s/ Xxxxx Xxx |
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Name: |
Xxxxx Xxx |
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Title: |
Vice President |
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Notices To:
Xxxxx Fargo Bank, National Association
000 X Xxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Email: xxxxx.x.xxx@xxxxxxxxxx.xxx
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HSH NORDBANK |
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By |
/s/ Xxxx Xxxxxxxx |
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Name: |
Xxxx Xxxxxxxx |
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Title: |
Senior Vice President |
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Head of Transportation Americas |
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By |
/s/ Xxxx Xxxxxxxx |
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Name: |
Xxxx Xxxxxxxx |
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Title: |
Vice President |
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Transportation |
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Notices To:
HSH Nordbank
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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Email: |
xxxx.xxxxxxxx@xxx-xxxxxxxx.xxx |
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and xxxx.xxxxxxx@xxx-xxxxxxxx.xxx |
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XXXXX XXXX XX XXXXX ( XXX XXXXXXX AGENCY) |
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By |
/s/ Sunil K Kowshal |
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Name: |
Sunil K Kowshal |
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Title: |
VP & Manager |
Notices To:
State Bank of India
Los Angeles Agency
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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Email: |
xxxx@xxxxxx.xxx |
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xxxxxx@xxxxx.xxx |
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XXXXX XXXX XX XXXXX |
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By |
/s/ Xxxxxxxx Xxxxx |
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Name: |
Xxxxxxxx Xxxxx |
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Title: |
Chief Executive Officer |
Notices To:
State Bank of India (California)
000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
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Email: |
xxxx@xxxxxx.xxx |
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xxxxxx@xxxxx.xxx |
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IXIS CORPORATE & INVESTMENT |
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By |
/s/ Xxxxx Xxxxxx |
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Name: Xxxxx XXXXXX |
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Title: Managing Director for Financing Activities |
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Notices To:
Xxxx-Xxxxxx Xxxxxx
Bank Offices Loans and Structured Finance Manager
IXIS CORPORATE & INVESTMENT
BANK
00-00 Xxx Xxxxx Xxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
Telephone: x00 0 00 00 00 00
Facsimile: x00 0 00 00 00 00
Email: xxxxxxxx@xxxx-xxx.xxx
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KAUPTHING BANK |
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By |
/s/ Bjarki H Diego |
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Name: |
Bjarki H Diego |
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Title: |
Managing Director |
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Corporate Banking |
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By |
/s/ Byörk Thorarinsdottir |
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Name: |
Byörk Thorarinsdottir |
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Title: |
Deputy Managing Director |
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Corporate Banking |
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Notices To:
Asthildur Otharsdottir
Kaupthing Bunadarbanki hf.
Corporate Banking
Borgartuni 19 – IS 105 Reykjavik – Iceland
Telephone: (x000) 000 0000
Facsimile: (x000) 000 0000
Email: xxx@xxxxxxx.xx
16
EXHIBIT A
BANKS’ REVOLVING LOAN COMMITMENTS AND PERCENTAGES
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Revolving |
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Revolving |
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Closing |
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Fortis Bank (Agent) |
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30,000,000 |
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20.2020 |
% |
0.004 |
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120,000 |
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National City Bank (Agent) |
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30,000,000 |
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20.2020 |
% |
0.004 |
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110,000 |
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California Bank & Trust |
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20,000,000 |
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13.4680 |
% |
0.004 |
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80,000 |
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Xxxxx Fargo Bank |
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15,500,000 |
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10.4377 |
% |
0.004 |
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62,000 |
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HSH Nordbank |
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15,000,000 |
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10.1010 |
% |
0.0025 |
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37,500 |
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City National Bank |
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10,000,000 |
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6.7340 |
% |
0.0025 |
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25,000 |
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CDC Finance – CDC IXIS |
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10,000,000 |
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6.7340 |
% |
0.0025 |
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25,000 |
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Kaupthing Bank |
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10,000,000 |
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6.7340 |
% |
0.0025 |
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25,000 |
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State Bank of India – Los Angeles Agency |
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5,000,000 |
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3.3670 |
% |
0.0025 |
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12,500 |
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State Bank of India (California) |
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3,000,000 |
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2.0202 |
% |
0.0025 |
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7,500 |
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TOTAL |
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$ |
148,500,000 |
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100 |
% |
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$ |
504,500 |
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1
