AMENDMENT NO. 5 to that certain SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
EXHIBIT 99.1
AMENDMENT NO. 5
to that certain
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This AMENDMENT NO. 5 (this “Amendment”), dated as of August 30, 2012, is by and among CAI INTERNATIONAL, INC., a Delaware corporation (“CAI”), CONTAINER APPLICATIONS LIMITED, a corporation organized under the laws of Barbados (“CAL” and, together with CAI, the “Borrowers”, and each, individually, a “Borrower”), the Guarantors listed on the signature pages hereto (each a “Guarantor” and collectively, the “Guarantors”), BANK OF AMERICA, N.A., (“Bank of America”) and the other lending institutions from time to time party to the Credit Agreement referred to below (collectively, the “Lenders”), Bank of America, as administrative agent for itself and the other Lenders (in such capacity, the “Administrative Agent”), and UNION BANK, N.A., as documentation agent for itself and the other Lenders (in such capacity, the “Documentation Agent”). Capitalized terms used herein without definition shall have the respective meanings provided therefor in the Credit Agreement referred to below.
WHEREAS, the Borrowers, the Lenders and the Administrative Agent are parties to that certain Second Amended and Restated Revolving Credit Agreement, dated as of September 25, 2007 (as amended by Amendment No. 1 dated as of February 26, 2008, Amendment No. 2 dated as of August 20, 2010, Amendment No. 3 dated as of June 27, 2011 and Amendment No. 4 dated as of April 10, 2012, as supplemented by those certain Notices Regarding Increase of Facility Amount and related documentation dated as of May 27, 2008, October 19, 2011 and January 25, 2012, as amended by this Amendment and as may be further amended, restated, amended and restated, supplemented and otherwise in effect from time to time, the “Credit Agreement”), pursuant to which the Lenders, upon certain terms and conditions, have agreed to make loans and otherwise extend credit to the Borrowers;
WHEREAS, the Borrowers, the Lenders and the Administrative Agent have agreed to increase the Total Commitments under the Credit Agreement to $495,000,000 and to increase the amount by which the Total Commitments under the Credit Agreement may be increased pursuant to §2.11 thereof to $675,000,000;
WHEREAS, in order to allocate the additional Commitments, certain of the Lenders have agreed to increase their Commitments under the Credit Agreement as more fully set forth below; and
WHEREAS, the Borrowers request that the Administrative Agent and the Lenders amend certain of the terms and provisions of the Credit Agreement as set forth herein subject to the conditions set forth below;
NOW THEREFORE, in consideration of the mutual agreements contained in the Credit Agreement and herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
§1. Amendments to Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in §4 below:
(a) The Credit Agreement is hereby amended by deleting the last sentence of the definition of “Total Commitment” in §1.1 of the Credit Agreement and substituting the following new sentence in lieu thereof: “The Total Commitment as of the Fifth Amendment Effective Date is $495,000,000.”
(b) The Credit Agreement is hereby amended by adding the following new definition in §1.1 of the Credit Agreement in the appropriate alphabetical order:
Fifth Amendment Effective Date. August 30, 2012.
(c) The Credit Agreement is hereby amended by deleting the reference to (i) “$95,000,000 from and after the Fourth Amendment Effective Date” in §2.11.1 and inserting “$180,000,000 from and after the Fifth Amendment Effective Date” in lieu thereof and (ii) “$475,000,000” in §2.11.1 and substituting a reference to “$675,000,000” in lieu thereof.
(d) The Credit Agreement is hereby amended by deleting the reference to “3.50:1.00” in §10.1 and inserting “3.75:1.00 in lieu thereof.
(e) The Credit Agreement is hereby amended by deleting the reference to “3.50:1.00” in §10.3 and inserting “3.75:1.00” in lieu thereof.
(f) The Credit Agreement is hereby amended by deleting the existing Schedule 1 to the Credit Agreement in its entirety and substituting in lieu thereof the new Schedule 1 to the Credit Agreement that is attached hereto as Annex A.
§2. Representations and Warranties. As of each Fifth Amendment Effective Date (as defined below), each of the Borrowers and the Guarantors, as the case may be, represents and warrants to the Lenders and the Administrative Agent as follows:
(a) Representations and Warranties in Credit Agreement. The representations and warranties of the Borrowers contained in the Credit Agreement were true and correct in all material respects when made, and continue to be true and correct on such Fifth Amendment Effective Date.
(b) Authority, Etc. The execution and delivery by each of the Borrowers and the Guarantors of this Amendment and the performance by each of the Borrowers and the Guarantors of all of its respective agreements and obligations of this Amendment and the other documents delivered in connection therewith (collectively, the “Amendment Documents”), the Credit Agreement as amended hereby and the other Loan Documents (i) are within the corporate or company authority of such Borrower or such Guarantor, (ii) have been duly authorized by all necessary corporate or company proceedings by such Borrower and such Guarantor, (iii) do not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which such Borrower or such Guarantor is subject or any judgment, order, writ, injunction, license or permit applicable to such Borrower or such Guarantor, (iv) do not conflict with any provision of the Governing Documents of, or any agreement or other instrument binding upon, such Borrower or such Guarantor, and (v) do not require the approval or consent of, or filing with, any Person other than those already obtained.
(c) Enforceability of Obligations. The Amendment Documents, the Credit Agreement as amended hereby, and the other Loan Documents constitute the legal, valid and binding obligations of such Borrower or such Guarantor, enforceable against such Borrower or such Guarantor in accordance with their respective terms.
(d) No Default. Immediately after giving effect to this Amendment, no Default or Event of Default exists under the Credit Agreement or any other Loan Document.
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§3.
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Affirmation of Borrowers and Guarantors.
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(a) Each Borrower hereby affirms its absolute and unconditional promise to pay to each Lender and the Administrative Agent the Revolving Credit Loan, the Swing Line Loans, the Reimbursement Obligations and all other amounts due under the Revolving Credit Notes, the Letters of Credit, the Credit Agreement as amended hereby and the other Loan Documents, at the times and in the amounts provided for therein. Each Borrower confirms and agrees that (i) the obligations of such Borrower to the Lenders and the Administrative Agent under the Credit Agreement as amended hereby are secured by and entitled to the benefits of the Security Documents and (ii) all references to the term “Credit Agreement” in the Security Documents and the other Loan Documents shall hereafter refer to the Credit Agreement as amended hereby.
(b) Each of the undersigned Guarantors hereby acknowledges that it has read and is aware of the provisions of this Amendment. Each such Guarantor hereby reaffirms its absolute and unconditional guaranty of the applicable Borrower’s payment and performance of its obligations to the Lenders and the Administrative Agent under the Credit Agreement as amended hereby. Each Guarantor hereby confirms and agrees that all references to the term “Credit Agreement” in the Guaranty to which it is a party shall hereafter refer to the Credit Agreement as amended hereby.
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§4.
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Conditions to Effectiveness.
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(a) The amendments provided for in §§1(a), (b), (c) and (f) of this Amendment shall take effect upon the satisfaction of the following conditions precedent (such date, the “Initial Fifth Amendment Effective Date”):
(i) the Administrative Agent shall have received a counterpart signature page to this Amendment, duly executed and delivered by each of the Borrowers, the Guarantors, the Required Lenders and the Administrative Agent, and this Amendment shall be in full force and effect;
(ii) the Administrative Agent shall have received a certificate of the authorized officer of each Borrower and each Guarantor dated as of the Initial Fifth Amendment Effective Date certifying as to (i) no amendments, modifications or supplements to the Governing Documents of any Borrower or Guarantor since the last delivery of such Governing Documents by such Loan Party to the Administrative Agent and that such Governing Documents are in full force and effect or attaching complete and certified copies of such Governing Documents including any amendments, modifications or supplements thereto (including certifications of such Governing Documents by the appropriate Governmental Authority of such Person’s jurisdiction of formation or organization), (ii) all corporate or other organizational actions taken by each of the Borrowers and Guarantors authorizing the execution, delivery, and performance of this Amendment and the other Amendment Documents and attaching copies of the board minutes and/or resolutions relating to such authorization and (iii) the names, titles, incumbency, and specimen signatures of the authorized officers of each of the Borrowers and the Guarantors authorized to sign this Amendment and the other Amendment Documents on behalf of such Person;
(iii) the Administrative Agent shall have received an updated Schedule 1 (Lenders and Commitments) to the Credit Agreement (attached hereto as Annex A);
(iv) the Administrative Agent shall have received any necessary amendments and/or revisions to the Barbados Security Documents which are required pursuant to the transactions contemplated by this Amendment;
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(v) there shall not have occurred (i) a Material Adverse Effect since December 31, 2011 or (ii) a material adverse change in the facts and information regarding the Borrowers and Guarantors represented to date to the Administrative Agent and the Lenders;
(vi) the absence of any action, suit, investigation or proceeding pending, or to the knowledge of the Borrowers, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to (i) have a Material Adverse Effect on the business, assets, properties, liabilities (actual and contingent), operations, condition (financial or otherwise) or prospects of CAI and its Subsidiaries, taken as a whole, (ii) adversely affect the ability of either Borrower or any Guarantor to perform its obligations under the Loan Documents or (iii) adversely affect the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents; and
(vii) the Borrowers shall have paid to the Lenders or the Administrative Agent, as appropriate, any and all fees due on or prior to the date hereof, together with the reasonable fees, expenses and disbursements of the Administrative Agent’s Special Counsel with respect to which the Borrowers have received invoices on or prior to the Initial Fifth Amendment Effective Date.
(b) The amendments provided for in §§1(d) and (e) of this Amendment shall take effect upon the satisfaction of the following conditions precedent (such date, the “Additional Fifth Amendment Effective Date” and, together with the Initial Fifth Amendment Effective Date, each a “Fifth Amendment Effective Date”):
(i) the Administrative Agent shall have received a duly executed (i) amendment to that certain Term Loan Agreement, dated as of December 20, 2010, by and among the Borrowers, the financial institutions signatory thereto as lenders and ING Bank, N.V., as administrative agent, (ii) amendment to that certain Term Loan Agreement, dated as of April 11, 2012, by and among CAL, the financial institutions signatory thereto as lenders and SunTrust Bank, as administrative agent, and (iii) amendment to that certain Revolving Credit Agreement, dated as of June 7, 2012, by and among CAI Rail, Inc., the financial institutions signatory thereto as lenders and Union Bank, N.A., as administrative agent, in each case, in form and substance satisfactory to the Administrative Agent.
§5. Satisfaction of Conditions. Without limiting the generality of the foregoing §4, for purposes of determining compliance with the conditions specified in §4, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the date hereof specifying its objection thereto.
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§6. Miscellaneous Provisions. This Amendment shall constitute one of the Loan Documents referred to in the Credit Agreement. Except as otherwise expressly provided by this Amendment, all of the terms, conditions and provisions of the Credit Agreement shall remain the same. It is declared and agreed by each of the parties hereto that the Credit Agreement, as amended hereby, shall continue in full force and effect, and that this Amendment and the Credit Agreement shall be read and construed as one instrument. Nothing contained in this Amendment shall be construed to imply a willingness on the part of the Lenders or the Administrative Agent to grant any similar or other future amendment of any of the terms and conditions of the Credit Agreement or the other Loan Documents or shall in any way prejudice, impair or effect any rights or remedies of the Lenders and the Administrative Agent under the Credit Agreement or the other Loan Documents. THIS AMENDMENT SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW (OTHER THAN THE NEW YORK GENERAL OBLIGATIONS LAW §5-1401)). This Amendment may be executed in any number of counterparts, but all such counterparts shall together constitute but one instrument. Delivery of an executed signature page of this Amendment by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart thereof. In making proof of this Amendment it shall not be necessary to produce or account for more than one counterpart signed by each party hereto by and against which enforcement hereof is sought. Headings or captions used in this Amendment are for convenience of reference only and shall not define or limit the provisions hereof. The Borrowers hereby agree to pay to the Administrative Agent on demand all reasonable costs and expenses incurred or sustained by the Administrative Agent in connection with the preparation of this Amendment (including reasonable legal fees and disbursements of the Administrative Agent’s Special Counsel).
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as an agreement as of the date first written above.
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By:
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/s/ Xxxxxxx X. Page
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Name:
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Xxxxxxx X. Page
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Title:
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Chief Financial Officer
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CONTAINER APPLICATIONS LIMITED
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Name:
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Xxxxxxx X. Page
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Title:
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Chief Financial Officer
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Guarantors:
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SKY CONTAINER TRADING, INC.
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By:
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/s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: President and Treasurer
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CONTAINER APPLICATIONS INTERNATIONAL
(U.K.) LIMITED
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By:
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/s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Authorized Officer
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CONTAINER APPLICATIONS INTERNATIONAL, LTD.
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By:
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/s/ Xxxxxxxxx Xxxxx
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Name: Xxxxxxxxx Xxxxx
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Title: Authorized Officer
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CONTAINER APPLICATIONS (MALAYSIA) SDN BDH
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By:
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/s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Authorized Officer
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SKY CONTAINER TRADING LIMITED
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By:
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/s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Authorized Officer
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CAI CONSENT SWEDEN AB
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By:
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/s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Authorized Officer
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CAI INTERNATIONAL GMBH
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By:
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/s/ Xxxxxx Xxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxx Xxxxxxxx
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Title: Managing Director
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Lenders and Administrative Agent:
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BANK OF AMERICA, N.A., as
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Administrative Agent
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By:
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/s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Assistant Vice President
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BANK OF AMERICA, N.A., as Lender,
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Swing Line Lender and L/C Issuer
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By:
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/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Director
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KEYBANK NATIONAL ASSOCIATION, as a Lender
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By:
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/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Senior Vice President
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UNION BANK, N.A., as a Lender
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By:
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/s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
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Title: Vice President
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COMERICA BANK, as a Lender
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By:
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/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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ING BANK N.V., as a Lender
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By:
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/s/ Xxx Xxxxxxxxxx
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Name: Xxx Xxxxxxxxxx
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Title: Director
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By:
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/s/ X.X. Xxxxx
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Name: X.X. Xxxxx
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Title: Director
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XXXXX FARGO BANK, N.A., as a Lender
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By:
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/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Director
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CALIFORNIA BANK & TRUST, as a Lender
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By:
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/s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
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Title: Senior Vice President
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BANK OF MONTREAL (CHICAGO BRANCH), as a Lender
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By:
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/s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Director
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JPMORGAN CHASE BANK, N.A., as a Lender
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Senior Vice President
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BRANCH BANKING AND TRUST COMPANY, as a Lender
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By:
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/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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DBS BANK LTD., LOS ANGELES AGENCY, as a Lender
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By:
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/s/ Xxxxx XxXxxxxxx
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Name: Xxxxx XxXxxxxxx
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Title: General Manager
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Annex A
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LENDER;
DOMESTIC LENDING OFFICE;
EURODOLLAR LENDING OFFICE
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Revolver
Commitment
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Revolver
Commitment
Percentage
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BANK OF AMERICA, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Director
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$ | 80,000,000.00 | 16.161616162 | % | ||||
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XXXXX FARGO BANK, N.A.
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxxxx Xxxxxx, Vice President
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$ | 60,000,000.00 | 12.121212121 | % | ||||
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UNION BANK, N.A.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: J. Xxxxxxx Xxxxxx, VP
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$ | 60,000,000.00 | 12.121212121 | % | ||||
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JPMORGAN CHASE BANK, N.A.
000 Xxxxxxx Xxxxxx, Xxxxx 0
Xxx Xxxxxxxxx, XX 00000
Telephone: (000)-000-0000
Telecopier: (000)-000-0000
E-mail: xxxxxx.xxxxxx@xxxxx.xxx
Attn: Xxxxxx Xxxxxx, Senior Vice President
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$ | 60,000,000.00 | 12.121212121 | % | ||||
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ING BANK N.V.
Structured Finance
Xxxxxxxxxxxx 000, 0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telephone: 00-00-00-00000
Telecopier: 31-20-56-58210
Attn: Xxxx Xxxxxx/Xxxxxx de Vries
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$ | 40,000,000.00 | 8.080808081 | % | ||||
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KEYBANK, N.A.
KeyBank, N.A.
000 Xxxxx Xxx. 00xx Xx.
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Managing Director
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$ | 35,000,000.00 | 7.070707071 | % | ||||
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COMERICA BANK
Two Embarcadero Center
Suite 300
Comerica Bank
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Vice President
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$ | 30,000,000.00 | 6.060606061 | % | ||||
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LENDER;
DOMESTIC LENDING OFFICE;
EURODOLLAR LENDING OFFICE
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Revolver
Commitment
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Revolver
Commitment
Percentage
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BANK OF MONTREAL (CHICAGO BRANCH)
000 Xxxx Xxxxxx-00X
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxx Xxxxxx, Director
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$ | 30,000,000 | 6.060606061 | % | ||||
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CRÉDIT INDUSTRIEL ET COMMERCIAL, NEW YORK BRANCH
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxxxxxx Xxxxxx, Vice President
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$ | 25,000,000.00 | 5.050505051 | % | ||||
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UNICREDIT BANK AG (F/K/A BAYERISCHE HYPO-UND VEREINSBANK AG)
6100FSO2 Maritime Logistics
Xxxxx Xxxx 00
00000 Xxxxxxx
Telephone: 49 - 40 - 3692 - 4392
Telecopier: 49 - 40 - 3692 - 2516
Attn: Xxxxx Xxxxxxx, Credit Specialist
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$ | 25,000,000.00 | 5.050505051 | % | ||||
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DBS BANK LTD., LOS ANGELES AGENCY
000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx 000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxx Xxxxx Senior Relationship Manager
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$ | 25,000,000.00 | 5.050505051 | % | ||||
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CALIFORNIA BANK & TRUST
000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxxxx X. Xxxxx
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$ | 15,000,000.00 | 3.030303030 | % | ||||
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BRANCH BANKING AND TRUST COMPANY
000 X Xxxxxx Xx. 00xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxxx Xxxxx
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$ | 10,000,000.00 | 2.020202020 | % | ||||
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TOTAL
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$ | 495,000,000.00 | 100.000000000 | % |
