FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
Exhibit 10.2
FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT (this “Amendment”) is made and entered into as of August 31, 2017, by and among DASEKE, INC., a Delaware corporation (“Guarantor”), DASEKE COMPANIES, INC., a Delaware corporation (the “Borrowing Agent”), each of its subsidiaries party thereto as borrowers (together with Borrowing Agent, collectively, the “Borrowers”, and together with Guarantor, the “Loan Parties”), the Lenders (as defined in the Credit Agreement referred to below) party hereto, and PNC BANK, NATIONAL ASSOCIATION (“PNC”), as agent for the Lenders (PNC, together with its successors and assigns in such capacity, “Agent”).
RECITALS
A. The Loan Parties, Agent and Lenders are parties to that certain Fifth Amended and Restated Revolving Credit and Security Agreement dated as of February 27, 2017 (as heretofore amended, restated, supplemented, or otherwise modified, the “Credit Agreement”); and
B. Subject to the terms and conditions set forth herein, Agent and Required Lenders are willing to consent to amend the Credit Agreement as provided herein.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound agree as follows:
ARTICLE I
DEFINITIONS
1.01 Capitalized terms used herein and not defined herein shall have the meanings ascribed to them in the Credit Agreement.
ARTICLE II
AMENDMENTS
Effective as of the Effective Date (as defined below),
2.01 Amendment to Section 1.2. The definition of “Letter of Credit Sublimit” set forth in Section 1.2 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
“Letter of Credit Sublimit” shall mean $20,000,000.
2.02 Amendment to Section 6.5(b). The chart located in Section 6.5(b) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
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Fiscal Quarter |
Funded Debt to |
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September 30, 2017 |
4.75:1.00 |
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December 31, 2017 |
4.75:1.00 |
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March 31, 2018 |
4.25:1.00 |
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June 30, 2018 |
4.25:1.00 |
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September 30, 2018 |
4.25:1.00 |
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December 31, 2018 |
4.25:1.00 |
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March 31, 2019 |
4.00:1.00 |
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June 30, 2019 |
4.00:1.00 |
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September 30, 2019 |
4.00:1.00 |
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December 31, 2019 |
4.00:1.00 |
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March 31, 2020 |
4.00:1.00 |
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June 30, 2020 |
4.00:1.00 |
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September 30, 2020 |
4.00:1.00 |
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December 31, 2020 |
4.00:1.00 |
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March 31, 2021 and the last day of each fiscal quarter thereafter: |
3.75:1.00 |
ARTICLE III
CONDITIONS PRECEDENT; LIMITED CONSENT
3.01 Conditions Precedent. This Amendment shall become effective only upon the satisfaction in full, in a manner satisfactory to Agent, of the following conditions precedent, unless specifically waived in writing by Required Lenders (the first date upon which all such conditions have been satisfied being herein called the (“Effective Date”):
(a) Agent shall have received the following, each in form and substance satisfactory to Agent and its legal counsel:
(i) this Amendment duly executed by the Loan Parties, Agent and Required Lenders;
(ii) all other documents Agent may reasonably request with respect to any matter relevant to this Amendment or the transaction contemplated hereby; and
(iii) all fees, costs and expenses owed to or incurred by Agent and Lenders arising in connection with the Credit Agreement, the Other Documents, or this Amendment.
(c) The representations and warranties contained herein shall be true and correct as of the date hereof and the representations and warranties contained in the Credit Agreement and the Other
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Documents shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date hereof as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date; and
(d) After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing and no Default or Event of Default will result from the execution, delivery or performance of this Amendment.
3.02 No Waiver. Nothing contained in this Amendment shall be construed as a waiver by Agent or Lenders of any covenant or provision of the Credit Agreement (as amended hereby), the Other Documents, or of any other contract or instrument between any Loan Party and Agent or Lenders, and the failure of Agent or Lenders at any time or times hereafter to require strict performance by Loan Parties of any provision thereof shall not waive, affect or diminish any right of Agent to thereafter demand strict compliance therewith. Agent and Lenders hereby reserve all rights granted under the Credit Agreement, the Other Documents, this Amendment and any other contract or instrument between any of them.
ARTICLE IV
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
4.01 Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Credit Agreement and the Other Documents, and, except as expressly modified and superseded by this Amendment, the terms and provisions of the Credit Agreement and the Other Documents are ratified and confirmed and shall continue in full force and effect. Each Loan Party hereby agrees that all liens and security interests securing payment of the Obligations under the Credit Agreement are hereby collectively renewed, ratified and brought forward as security for the payment and performance of the Obligations. Loan Parties, Agent and Required Lenders agree that the Credit Agreement and the Other Documents, as amended hereby, shall continue to be legal, valid, binding and enforceable in accordance with their respective terms.
4.02 Representations and Warranties. Each Loan Party hereby represents and warrants to Agent and Lenders as of the date of this Amendment as follows: (A) it is duly incorporated or organized, validly existing and in good standing under the laws of its jurisdiction of organization; (B) such Loan Party has not (i) amended, modified or waived any term or material provision of its Articles of Incorporation or By-Laws or Certificate of Formation or Operating Agreement, as applicable, or other organizational documents since last delivering such document to Agent or (ii) adopted any resolution which would be materially adverse to Agent or Lenders (C) the execution, delivery and performance by it of this Amendment, the Credit Agreement and all Other Documents executed and/or delivered in connection herewith to which it is a party are within its powers, have been duly authorized, and do not contravene (i) its articles of organization, operating agreement, or other organizational documents or (ii) any applicable law; (D) no consent, license, permit, approval or authorization of, or registration, filing or declaration with any Governmental Body or other Person, is required in connection with the execution, delivery, performance, validity or enforceability of this Amendment, the Credit Agreement or any of the Other Documents executed and/or delivered in connection herewith to which it is a party by or against it, except for those consents, approvals or authorizations which will have been duly obtained, made or compiled prior to the Effective Date and which are in full force and effect; (E) this Amendment, the Credit Agreement and all Other Documents executed and/or delivered in connection herewith to which it is a party have been duly executed and delivered by it; (F) this Amendment, the Credit Agreement and all Other Documents executed and/or delivered in connection herewith to which it is a party constitute its legal, valid and binding obligation enforceable against it in accordance with their terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity;
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(G) no Default or Event of Default exists, has occurred and is continuing or would result by the execution, delivery or performance of this Amendment; (H) such Loan Party is in compliance with all covenants and agreements contained in the Credit Agreement and the Other Documents to which it is a party, as amended hereby; and (I) the representations and warranties contained in the Credit Agreement and the Other Documents to which it is a party are true and correct in all material respects on and as of the date hereof and on and as of the date of execution hereof as though made on and as of each such date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and complete on and as of such earlier date).
ARTICLE V
MISCELLANEOUS PROVISIONS
5.01 Survival of Representations and Warranties. All representations and warranties made in the Credit Agreement or the Other Documents, including, without limitation, any document furnished in connection with this Amendment, shall survive the execution and delivery of this Amendment and the Other Documents, and no investigation by Agent or any Lender shall affect the representations and warranties or the right of Agent and Lenders to rely upon them.
5.02 Time of the Essence. Each Loan Party hereby acknowledges and agrees that time is of the essence with respect to the performance of any and all covenants made by the Loan Parties under this Amendment, and the Loan Parties shall strictly comply with the deadlines associated with this Amendment.
5.03 Reference to Credit Agreement. Each of the Credit Agreement and the Other Documents, and any and all other agreements, documents or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Credit Agreement, as amended hereby, are hereby amended so that any reference in the Credit Agreement and such Other Documents to the Credit Agreement shall mean a reference to the Credit Agreement as amended hereby.
5.04 Expenses of Agent. Each Borrower agrees to pay on demand all reasonable and documented out-of-pocket costs and expenses incurred by Agent and Affiliates in connection with any and all amendments, modifications, and supplements to the Other Documents, including, without limitation, the reasonable and documented fees, charges and disbursements of Agent’s legal counsel, and all costs and expenses incurred by Agent in connection with the enforcement or preservation of any rights under the Credit Agreement, as amended hereby, or any Other Documents, including, without, limitation, the costs and fees of Agent’s legal counsel.
5.05 Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.
5.06 Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of Loan Parties, Agent, each Lender and their respective successors and assigns, except that no Loan Party may assign or transfer any of its respective rights or obligations hereunder without the prior written consent of Agent and each Lender.
5.07 Counterparts. This Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile or electronic transmission (including email transmission of a PDF image) or other electronic means shall be equally effective as delivery of a manually executed counterpart of this Amendment.
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5.08 Effect of Waiver. No consent or waiver, express or implied, by Agent or Required Lenders to or for any breach of or deviation from any covenant or condition by Loan Parties shall be deemed a consent to or waiver of any other breach of the same or any other covenant, condition or duty.
5.09 Headings. The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment.
5.10 Applicable Law. THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
5.11 Further Assurances. Each Loan Party shall execute and deliver to Agent from time to time, upon demand, such supplemental agreements, statements, assignments and transfers, or instructions or documents as Agent may reasonably request, in order that the full intent of the Credit Agreement and this Amendment may be carried into effect.
5.12 Final Agreement. THE CREDIT AGREEMENT AND THE OTHER DOCUMENTS, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE CREDIT AGREEMENT AND THE OTHER DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY LOAN PARTIES AND AGENT.
5.13 Release. EACH LOAN PARTY HEREBY (I) ACKNOWLEDGES THAT IT HAS NO DEFENSE, COUNTERCLAIM, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS OBLIGATIONS AND (II) VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES AGENT OR ANY LENDER, THEIR PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT, WHICH ANY LOAN PARTY MAY NOW OR HEREAFTER HAVE AGAINST AGENT, ITS PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment as of the date first above written.
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BORROWERS: |
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DASEKE COMPANIES, INC. |
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By: |
/s/ R. Xxxxx Xxxxxxx |
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Name: |
R. Xxxxx Xxxxxxx |
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Title: |
Executive Vice President and Corporate Chief Financial Officer |
[Signatures continued on next page]
[SIGNATURE PAGE TO FIRST AMENDMENT TO
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
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B. C. HORNADY AND ASSOCIATES, INC. |
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XXXX BROS. TRANSPORTATION INC. |
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XXXX LOGISTICS, L.L.C. |
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XXXX LOGISTICS PROPERTIES, LLC |
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XXXX INTERMODAL, LLC |
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BROS. LLC |
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BULLDOG HIWAY EXPRESS |
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BULLDOG HIWAY LOGISTICS, LLC |
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CENTRAL OREGON TRUCK COMPANY, INC. |
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DASEKE LOGISTICS, LLC |
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DASEKE LONE STAR, INC. |
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X. X. XXXXX CORPORATION |
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GROUP ONE, INC. |
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HORNADY LOGISTICS, LLC |
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HORNADY TRANSPORTATION, L. L. C. |
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HORNADY TRUCK LINE, INC. |
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J. XXXXX XXXXXXXX, INC. |
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JGR LOGISTICS, LLC |
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LONE STAR HEAVY HAUL, INC. |
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LONE STAR PROJECT SPECIALISTS, INC. |
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LONE STAR TRANSPORTATION, LLC |
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LST HOLDINGS, INC. |
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LST EQUIPMENT, INC. |
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XXXXXXXX TRUCKING, INC. |
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MID SEVEN TRANSPORTATION COMPANY |
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NATIONAL RIGGING, INC. |
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XXXXXXXX XXXXXXXX, LLC |
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XXXXXXX DISTRIBUTION SERVICES, INC. |
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XXXXXXX LEASING, INC. |
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XXXXXXX MOTOR LINES, INC. |
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XXXXXXX NATIONAL TRUCK LEASING & SALES INC. |
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XXXXXXX SPECIALIZED, INC. |
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XXXXXXX SPECIALIZED FLATBED DIVISION, INC. |
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XXXXXXX SPECIALIZED OF TEXAS, INC. |
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XXXXXXX TRANSPORTATION SERVICES, INC. |
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SMOKEY POINT DISTRIBUTING, INC. |
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SPD TRUCKING, LLC |
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XXXXXXXX TRANSPORTATION, INC. |
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ST LEASING, INC. |
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TEXR ASSETS, L.L.C. |
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TEXR ASSETS 2, L.L.C. |
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TEXR EQUIPMENT, LLC |
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WTI TRANSPORT, INC. |
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By: |
/s/ R. Xxxxx Xxxxxxx |
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Name: |
R. Xxxxx Xxxxxxx |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT TO
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
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GUARANTOR: |
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By: |
/s/ R. Xxxxx Xxxxxxx |
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Name: |
R. Xxxxx Xxxxxxx |
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Title: |
Executive Vice President and Chief Financial Officer |
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SUBSIDIARY GUARANTORS: |
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DASEKE TRS LLC |
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DASEKE ST LLC |
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By: |
/s/ R. Xxxxx Xxxxxxx |
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Name: |
R. Xxxxx Xxxxxxx |
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Title: |
Executive Vice President and Corporate Chief Financial Officer |
[SIGNATURE PAGE TO FIRST AMENDMENT TO
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
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PNC BANK, NATIONAL ASSOCIATION, |
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as Agent and a Lender |
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By: |
/s/ Xxxxxxx Xxxxxxxxx |
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Name: |
Xxxxxxx Xxxxxxxxx |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT TO
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
