Exhibit 10.2
EXECUTION COPY
AMENDMENT NO. 5
Dated as of May 14,
2009
to
CREDIT AGREEMENT
Dated as of August 17,
2007
THIS AMENDMENT NO. 5 (“
Amendment ”) is made as of May 14, 2009 by and
among YRC Worldwide Inc. (the “ Company ”), the
Canadian Borrower and the UK Borrower (together with the Company,
the “ Borrowers ”) and JPMorgan Chase Bank,
National Association, as Administrative Agent (the “
Administrative Agent ”), under that certain Credit
Agreement dated as of August 17, 2007 by and among the
Borrowers from time to time party thereto, the Lenders and the
Administrative Agent (as amended, amended and restated, restated,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”). Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings
given to them in the Credit Agreement.
WHEREAS, the Company has requested
that the Administrative Agent agree to a technical amendment to the
Credit Agreement; and
WHEREAS, pursuant to
Section 11.02(c) of the Credit Agreement, the Administrative
Agent has agreed to such amendments on the terms and conditions set
forth herein to clarify any ambiguity as to whether the deferral of
pension or health and welfare contribution payments by any Loan
Party or its Subsidiaries constitutes Indebtedness;
NOW, THEREFORE, in consideration of
the premises set forth above, the terms and conditions contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers and the
Administrative Agent have agreed to enter into this
Amendment.
1. Amendments to Credit
Agreement . Effective as of the date of satisfaction or waiver
of the conditions precedent set forth in Section 2
below, the Credit Agreement is hereby amended as
follows:
(a) The definition of
“Indebtedness” appearing in Section 1.01 of
the Credit Agreement is hereby amended to restate the final
sentence thereof as follows:
Notwithstanding the foregoing,
Indebtedness shall not include (i) trade payables and accrued
expenses incurred by any Person in accordance with customary
practices and in the ordinary course of business of such Person or
(ii) any pension contributions or health and welfare
contributions due from such Person and/or its applicable
Subsidiaries to any Pension Fund Entity.
2. Conditions of
Effectiveness . The effectiveness of this Amendment is subject
to the condition precedent that the Administrative Agent shall have
received counterparts of this Amendment duly executed by the
Borrowers and the Administrative Agent.
3. Representations and Warranties
of the Borrowers . Each Borrower hereby represents and warrants
as follows as of the closing date of this Amendment:
(a) This Amendment and the Credit
Agreement, as amended hereby, constitute legal, valid and binding
obligations of such Borrower and are enforceable against such
Borrower in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(b) As of the date hereof after
giving effect to the terms of this Amendment, (i) no Default
shall have occurred and be continuing and (ii) the
representations and warranties of the Borrowers set forth in the
Credit Agreement, as amended hereby, are true and correct in all
material respects on and as of the date hereof, except to the
extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or
warranty shall have been true and correct in all material respects
on and as of such earlier date.
4. Reference to and Effect on the
Credit Agreement .
(a) Upon the effectiveness hereof,
each reference to the Credit Agreement in the Credit Agreement or
any other Loan Document shall mean and be a reference to the Credit
Agreement as amended hereby.
(b) Except as specifically amended
above, the Credit Agreement 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.
(c) The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of the Administrative Agent or the
Lenders, nor constitute a waiver of any provision of the Credit
Agreement or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
5. Governing Law . This
Amendment shall be construed in accordance with and governed by the
law of the State of New York.
6. 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.
7. Counterparts . This
Amendment may be executed by one or more of the parties hereto on
any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same
instrument. Signatures delivered by facsimile or PDF shall have the
same force and effect as manual signatures delivered in
person.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment
has been duly executed as of the day and year first above
written.
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YRC WORLDWIDE
INC., as the Company
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By:
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Name:
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Title:
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REIMER EXPRESS
LINES LTD./REIMER EXPRESS LTEE, as a Canadian Borrower
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By:
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Name:
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Title:
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YRC LOGISTICS
LIMITED, as a UK Borrower
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By:
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Name:
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Title:
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JPMORGAN CHASE
BANK, NATIONAL ASSOCIATION, as Administrative Agent
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By:
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Name:
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Title:
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Signature Page to Amendment
No. 5
YRC Worldwide Inc. et al
Credit Agreement dated as of August 17,
2007
EXECUTION COPY
AMENDMENT NO. 6
Dated as of May 15,
2009
to
CREDIT AGREEMENT
Dated as of August 17,
2007
THIS AMENDMENT NO. 6 (“
Amendment ”) is made as of May 15, 2009 by and
among YRC Worldwide Inc. (the “ Company ”), the
Canadian Borrower and the UK Borrower (together with the Company,
the “ Borrowers ”), the financial institutions
listed on the signature pages hereof and JPMorgan Chase Bank,
National Association, as Administrative Agent (the “
Administrative Agent ”), under that certain Credit
Agreement dated as of August 17, 2007 by and among the
Borrowers from time to time party thereto, the Lenders and the
Administrative Agent (as amended, amended and restated, restated,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”). Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings
given to them in the Credit Agreement.
WHEREAS, the Company has requested
that the Lenders and the Administrative Agent agree to an amendment
to the Credit Agreement; and
WHEREAS, the Lenders party hereto
and the Administrative Agent have agreed to such amendment on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of
the premises set forth above, the terms and conditions contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrowers, the
Lenders party hereto and the Administrative Agent have agreed to
enter into this Amendment.
1. Amendment to Credit
Agreement . Effective as of the date of satisfaction or waiver
of the conditions precedent set forth in Section 2
below, the Credit Agreement is hereby amended as
follows:
(a) Section 6.07(d) of
the Credit Agreement is hereby amended to delete in its entirety
the following row from the table set forth therein:
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For the fiscal quarter ending on June 30,
2009
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$45,000,000
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2. Conditions of
Effectiveness . The effectiveness of this Amendment is subject
to the conditions precedent that (a) the Administrative Agent
shall have received (i) counterparts of this Amendment duly
executed by the Borrowers, the Required Lenders and the
Administrative Agent, (ii) the Consent and Reaffirmation
attached hereto duly executed by the Subsidiary Guarantors,
(iii) an amendment in respect of the Yellow Receivables
Facility in form and substance similar to this Amendment and
reasonably satisfactory to the Administrative Agent and
(iv) those documents and instruments as may be reasonably
requested by the Administrative Agent, (b) the Company shall
have
paid all invoiced reasonable fees and invoiced,
reasonable, out-of-pocket expenses of the Administrative Agent
(including, to the extent invoiced, reasonable attorneys’
fees and expenses) in connection with this Amendment and the other
Loan Documents, in each case to the extent reimbursable under the
terms of the Credit Agreement and (c) the Administrative Agent
shall have received for the account of each Lender which delivers
its executed signature page hereto by such time as is requested by
the Administrative Agent, an amendment fee equal to 0.25% of such
Lender’s Revolving Commitment and the amount of such
Lender’s outstanding Term Loans.
3. Representations and Warranties
of the Borrowers . Each Borrower hereby represents and warrants
as follows as of the closing date of this Amendment:
(a) This Amendment and the Credit
Agreement, as amended hereby, constitute legal, valid and binding
obligations of such Borrower and are enforceable against such
Borrower in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a
proceeding in equity or at law.
(b) As of the date hereof after
giving effect to the terms of this Amendment, (i) no Default
shall have occurred and be continuing and (ii) the
representations and warranties of the Borrowers set forth in the
Credit Agreement, as amended hereby, are true and correct in all
material respects on and as of the date hereof, except to the
extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or
warranty shall have been true and correct in all material respects
on and as of such earlier date.
4. Reference to and Effect on the
Credit Agreement .
(a) Upon the effectiveness hereof,
each reference to the Credit Agreement in the Credit Agreement or
any other Loan Document shall mean and be a reference to the Credit
Agreement as amended hereby.
(b) Except as specifically amended
above, the Credit Agreement 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.
(c) The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of the Administrative Agent or the
Lenders, nor constitute a waiver of any provision of the Credit
Agreement or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
5. Perfection of Additional
Collateral . The parties hereto acknowledge that perfection of
the Collateral Agent’s Lien in certain Collateral, including,
without limitation, real property and improvements thereto,
tractors, trailers and other rolling stock, is ongoing, but the
Company and the Loan Parties continue to execute such documents,
agreements and instruments in connection therewith in accordance
with Section 5.10 of the Credit Agreement (as amended by the
Amendment) and the other Loan Documents. To the extent that any
release of Collateral pursuant to the Specified Sale and Leaseback
Transaction, any Specified Pension Fund Transaction and any other
Asset Sale consummated between the date hereof and July 15,
2009 diminishes the value of Collateral, the Company agrees that
any perfection of Liens described in the preceding sentence that
occurs between the date hereof and July 15, 2009 shall be
considered to have occurred substantially contemporaneously with
any release of Collateral pursuant to the Specified Sale and
Leaseback Transaction, any Specified Pension Fund Transaction and
any other Asset Sale consummated between the date hereof and
July 15, 2009 that diminishes the value of the
Collateral.
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6. Release . In further
consideration of the execution by the Administrative Agent and the
Lenders of this Amendment, to the extent permitted by applicable
law, the Company, on behalf of itself and each of its Subsidiaries,
and all of the successors and assigns of each of the foregoing
(collectively, the “ Releasors ”), hereby
completely, voluntarily, knowingly, and unconditionally releases
and forever discharges the Collateral Agent, the Administrative
Agent, each of the Lenders, each of their advisors, professionals
and employees, each affiliate of the foregoing and all of their
respective permitted successors and assigns (collectively, the
“ Releasees ”), from any and all claims,
actions, suits, and other liabilities, including, without
limitation, any so-called “lender liability” claims or
defenses (collectively, “ Claims ”), whether
arising in law or in equity, which any of the Releasors ever had,
now has or hereinafter can, shall or may have against any of the
Releasees for, upon or by reason of any matter, cause or thing
whatsoever from time to time occurred on or prior to the date
hereof, in any way concerning, relating to, or arising from
(i) any of the Transactions, (ii) the Secured
Obligations, (iii) the Collateral, (iv) the Credit
Agreement or any of the other Loan Documents, (v) the
financial condition, business operations, business plans, prospects
or creditworthiness of the Borrowers, and (vi) the
negotiation, documentation and execution of this Amendment and any
documents relating hereto except for Claims determined by a court
of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence, bad faith or willful
misconduct of such Releasee (or any of its Related Parties). The
Releasors hereby acknowledge that they have been advised by legal
counsel of the meaning and consequences of this release.
7. Governing Law . This
Amendment shall be construed in accordance with and governed by the
law of the State of New York.
8. 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.
9. Counterparts . This
Amendment may be executed by one or more of the parties hereto on
any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same
instrument. Signatures delivered by facsimile or PDF shall have the
same force and effect as manual signatures delivered in
person.
[Signature Pages Follow]
3
IN WITNESS WHEREOF, this Amendment
has been duly executed as of the day and year first above
written.
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YRC WORLDWIDE
INC., as the Company
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By:
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Name:
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Title:
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REIMER EXPRESS
LINES LTD./REIMER EXPRESS LTEE, as a Canadian Borrower
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By:
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Name:
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Title:
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YRC LOGISTICS
LIMITED, as a UK Borrower
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By:
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Name:
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Title:
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Signature Page to Amendment
No. 6
YRC Worldwide Inc. et al
Credit Agreement dated as of August 17,
2007
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JPMORGAN CHASE
BANK, NATIONAL ASSOCIATION, as Administrative Agent, as a US
Tranche Lender and as US Tranche Swingline Lender
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By:
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Name:
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Title:
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JPMORGAN CHASE
BANK, NATIONAL ASSOCIATION, TORONTO BRANCH, as Canadian Agent, as a
Canadian Tranche Lender and as Canadian Tranche Swingline
Lender
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By:
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Name:
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Title:
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J.P. MORGAN
EUROPE LIMITED, as UK Agent
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By:
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Name:
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Title:
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JPMORGAN CHASE
BANK, NATIONAL ASSOCIATION, LONDON BRANCH, as a UK Tranche Lender
and as UK Tranche Swingline Lender
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By:
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Name:
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Title:
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Signature Page to Amendment
No. 6
YRC Worldwide Inc. et al
Credit Agreement dated as of August 17,
2007
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BANK OF
AMERICA, N.A., as a Syndication Agent and as a US Tranche
Lender
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By:
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Name:
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Title:
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BANK OF
AMERICA, N.A. (CANADA BRANCH), as a Canadian Tranche
Lender
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By:
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Name:
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Title:
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BANK OF
AMERICA, N.A., as Successor by Merger to LASALLE BANK NATIONAL
ASSOCIATION, as a US Tranche Lender
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By:
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Name:
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Title:
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Signature Page to Amendment
No. 6
YRC Worldwide Inc. et al
Credit Agreement dated as of August 17,
2007
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SUNTRUST BANK,
as a Syndication Agent and as a US Tranche Lender
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By:
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Name:
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Title:
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US BANK
NATIONAL ASSOCIATION, as a Documentation Agent, as a US Tranche
Lender and as a Canadian Tranche Lender
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By:
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Name:
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Title:
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WACHOVIA BANK,
NATIONAL ASSOCIATION, as a Documentation Agent, as a US Tranche
Lender and as a UK Tranche Lender
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By:
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Name:
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Title:
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BANK OF
TOKYO-MITSUBISHI UFJ TRUST COMPANY, as a Documentation Agent and as
a US Tranche Lender
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By:
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Name:
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Title:
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THE ROYAL BANK
OF SCOTLAND plc, as a US Tranche Lender and as a UK Tranche
Lender
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By:
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Name:
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Title:
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BMO CAPITAL
MARKETS FINANCING, INC., as a US Tranche Lender
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By:
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Name:
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Title:
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Signature Page to Amendment
No. 6
YRC Worldwide Inc. et al
Credit Agreement dated as of August 17,
2007
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BANK OF
MONTREAL, as a Canadian Tranche Lender
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By:
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Name:
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Title:
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SUMITOMO MITSUI
BANKING CORPORATION, as a US Tranche Lender
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By:
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Name:
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Title:
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UMB BANK, n.a.,
as a US Tranche Lender
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By:
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Name:
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Title:
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TAIWAN BUSINESS
BANK, as a US Tranche Lender
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