Delaware
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000-51515
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20-1489747
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(State or other jurisdiction of
incorporation)
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(Commission File Number)
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(IRS Employer
Identification No.)
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395 Oyster Point Boulevard, Suite 415,
South San Francisco, California
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94080
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(Address of principal executive offices)
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(Zip Code)
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o
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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o
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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o
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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o
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Number
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Description
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10.1
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Eighth Amendment to Credit Agreement, dated as of May 16, 2016, by and among Core-Mark Holding Company, Inc. and its subsidiaries, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders party thereto.
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99.1
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Press Release of Core-Mark Holding Company, Inc. dated May 17, 2016.
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CORE-MARK HOLDING COMPANY, INC.
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Date: May 17, 2016
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By:
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/s/ Christopher M. Miller
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Name:
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Christopher M. Miller
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Title:
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Chief Financial Officer
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A.
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The Borrowers, Administrative Agent, the Lenders and the other parties thereto have previously entered into that certain Credit Agreement, dated as of October 12, 2005 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, including, without limitation, by that certain First Amendment to Credit Agreement, dated as of December 4, 2007, that certain Second Amendment to Credit Agreement, dated as of March 12, 2008, that certain letter agreement to Credit Agreement, dated as of January 31, 2009, that certain Third Amendment to Credit Agreement and First Amendment to Pledge and Security Agreement, dated as of February 2, 2010, that certain Fourth Amendment to Credit Agreement, dated as of May 5, 2011, that certain letter agreement to Credit Agreement and Security Agreement, dated as of December 21, 2012, that certain Fifth Amendment to Credit Agreement and Second Amendment to Pledge and Security Agreement, dated as of May 30, 2013, that certain Sixth Amendment to Credit Agreement, dated as of May 21, 2015, and that certain Seventh Amendment to Credit Agreement and Third Amendment to Pledge and Security Agreement, dated as of January 11, 2016, the “
Existing Credit Agreement
”; the Existing Credit Agreement as amended by this Amendment and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms shall be referred to herein as the “
Credit Agreement
”), pursuant to which the Lenders have made certain loans and financial accommodations available to the Borrowers. Terms used herein without definition shall have the meanings ascribed to them in the Existing Credit Agreement.
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B.
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The Borrowers and Administrative Agent have previously entered into that certain Pledge and Security Agreement, dated as of October 12, 2005 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, including, without limitation, by that certain Third Amendment to Credit Agreement and First Amendment to Pledge and Security Agreement, dated as of February
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C.
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The Borrowers have requested that the Administrative Agent and the Lenders amend the Existing Credit Agreement to increase the aggregate amount of the Revolving Commitments to $450,000,000.
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D.
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The Borrowers have further requested that Administrative Agent and the Lenders amend the Existing Credit Agreement and the Existing Security Agreement.
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E.
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Administrative Agent and the Lenders are willing to amend the Existing Credit Agreement and the Existing Security Agreement pursuant to the terms and conditions set forth herein.
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F.
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Each Borrower is entering into this Amendment with the understanding and agreement that, except as specifically provided herein, none of Administrative Agent’s or any Lender’s rights or remedies as set forth in the Existing Credit Agreement, the Existing Security Agreement and the other Loan Documents are being waived or modified by the terms of this Amendment.
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1.
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Amendments to Existing Credit Agreement
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(a)
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The following definitions are hereby added to Section 1.01 of the Existing Credit Agreement in the appropriate alphabetical order:
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(b)
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In the definition of “Banking Services” in Section 1.01 of the Existing Credit Agreement, the text “commercial credit cards” is hereby deleted and replaced with the following text:
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(c)
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The following sentence is hereby added to the end of the definition of “CDOR Rate” in Section 1.01 of the Existing Credit Agreement:
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(d)
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The following text is hereby added to the end of the definition of “Change in Law” in Section 1.01 of the Existing Credit Agreement:
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(e)
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The definition of “Capital Lease Obligations” in Section 1.01 of the Existing Credit Agreement is hereby amended by adding, at the end thereof, immediately before the period, the following:
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(f)
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The definition of “EBITDA” in Section 1.01 of the Existing Credit Agreement is hereby amended and restated to read in its entirety as follows:
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(g)
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Clause (d) of the definition of “Material Adverse Effect” in Section 1.01 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
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(h)
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The definition of “Permitted Acquisition” is hereby amended as follows: (i) the phrase “means any Acquisition by any Loan Party” set forth therein is deleted in its entirety and replaced with the phrase “means the Pine State Acquisition and any other Acquisition by any Loan Party” and (ii) clause (e) of the definition of “Permitted Acquisition” is hereby amended and restated to read in its entirety as follows:
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(i)
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The definition of “Revolving Commitment” in Section 1.01 of the Existing Credit Agreement is hereby amended and restated to read in its entirety as follows:
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(j)
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The definition of “Weekly Reporting” in Section 1.01 of the Existing Credit Agreement is hereby amended and restated to read in its entirety as follows:
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(k)
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Section 1.01 of the Existing Credit Agreement is hereby amended to add the following definitions in the appropriate alphabetical order:
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(l)
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Section 2.13(e) of the Existing Credit Agreement is hereby amended and restated to read in in its entirety as follows:
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(m)
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Section 2.15(b) of the Existing Credit Agreement is hereby amended and restated to read in in its entirety as follows:
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(n)
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The first sentence of Section 2.21(a) of the Existing Credit Agreement is hereby amended and restated to read in its entirety as follow:
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(o)
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The reference to $50,000,000 in Section 6.01(h) of the Existing Credit Agreement is hereby amended and restated as follows:
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(p)
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The reference to $300,000,000 in Section 6.01(k) of the Existing Credit Agreement is hereby amended and restated as follows:
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(q)
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The following text is hereby added to the end of Section 6.01(k) of the Existing Credit Agreement as follows:
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(r)
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(i) The text “and” at the end of Section 6.02(h) is hereby deleted, (ii) the text “.” at the end of Section 6.02(i) is hereby deleted and replaced with the text “; and”, and (iii) a new Section 6.02(j) is hereby added to the Existing Credit Agreement as follows:
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(s)
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Each reference to $2,500,000 in Section 6.04 of the Existing Credit Agreement is hereby amended and restated as follows:
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(t)
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Sections 6.04(m) and 6.04(n) of the Existing Credit Agreement are hereby amended and restated to read in their entirety as follows:
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(u)
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(i) The text “and” at the end of Section 6.04(o) is hereby deleted, (ii) the text “.” at the end of Section 6.04(p) is hereby deleted and replaced with the text “; and”, and (iii) a new Section 6.04(q) is hereby added to the Existing Credit Agreement as follows:
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(v)
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Section 6.05(g) of the Existing Credit Agreement is hereby amended and restated to read in its entirety as follows:
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(w)
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Sections 6.08(a)(iv) and 6.08(a)(v) of the Existing Credit Agreement is hereby amended and restated to read in their entirety as follows:
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(x)
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(i) The text “and” at the end of Section 6.08(b)(v) is hereby deleted, (ii) the text “.” at the end of Section 6.08(b)(vi) is hereby deleted and replaced with the text “; and”, and (iii) a new Section 6.08(b)(vii) is hereby added to the Existing Credit Agreement as follows:
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(y)
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In Section 6.13 of the Existing Credit Agreement, the text “1.1 to 1.0” is hereby deleted and replaced with the text “1.0 to 1.0”, and the text “90-day period” is hereby deleted and replaced with the text “60-day period”.
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(z)
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In each of clauses (j) and (k) of Article VII of the Existing Credit Agreement, the text “$2,500,000” is hereby deleted and replaced with the text “$5,000,000”.
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(aa)
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The following paragraph is hereby added at the end of Article VIII as follows:
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2.
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Amendments to Existing Security Agreement
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(a)
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In Section 7.3(b) of the Existing Security Agreement, the text “90-day period” is hereby deleted and replaced with the text “60-day period”.
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3.
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Conditions Precedent to Effectiveness of this Amendment
. This Amendment and the amendments to the Existing Credit Agreement and the Existing Security Agreement contained herein shall become effective, and shall become part of the Credit Agreement and the Security Agreement, as applicable, on the date (the “
Eighth Amendment Effective Date
”) when each of the following conditions precedent shall have been satisfied in the reasonable discretion of Administrative Agent or waived by Administrative Agent:
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a.
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Amendment
. Administrative Agent shall have received counterparts to this Amendment, executed by each party hereto.
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b.
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Representations and Warranties
. The representations and warranties of the Borrowers set forth herein must be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof).
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c.
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Authorizing Resolutions
. Administrative Agent shall have received a certificate of each Loan Party dated as of the Eighth Amendment Effective Date signed by a Financial Officer or otherwise acceptable officer of such Loan Party certifying and attaching the resolutions adopted by such Loan Party approving or consenting to this Amendment and any other Loan Documents executed in connection herewith.
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d.
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Payment of Fees
. Administrative Agent shall have received from the Borrowers all reasonable fees due and payable on or before the Eighth Amendment Effective Date, including, without limitation all fees payable in connection with this Amendment pursuant to that certain fee letter dated as of April 28, 2016, between the Borrowers and Agent.
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4.
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Representations and Warranties
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Each Borrower represents and warrants as follows as of the date hereof:
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a.
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Authority
. Each Borrower has the requisite corporate power and authority to execute and deliver this Amendment and to perform its obligations hereunder and under the Loan Documents (as amended or modified hereby) to which it is a party. The execution, delivery, and performance by each Borrower of this Amendment have been duly approved by all necessary corporate action, have received all necessary governmental approval, if any, and do not contravene (i) any law or (ii) any contractual restriction binding on such Borrower, except for contraventions of contractual restrictions which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
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b.
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Enforceability
. This Amendment has been duly executed and delivered by each Borrower. This Amendment and each Loan Document (as amended or modified hereby) (i) is the legal, valid, and binding obligation of each Borrower, enforceable against such Borrower in accordance with its 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, and (ii) is in full force and effect, assuming due execution by each other party hereto and thereto.
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c.
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Representations and Warranties
. After giving effect to this Amendment, the representations and warranties of the Borrowers contained in each Loan Document (other than any such representations or warranties that, by their terms, are specifically made as of an earlier date) are correct in all material respects on and as of the date hereof as though made on and as of the date hereof.
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d.
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No Default
. After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.
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5.
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Joining Lenders
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a.
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By its execution of this Amendment, each of U.S. Bank National Association and U.S. Bank National Association, Canada Branch hereby confirms and agrees that, on and after the date hereof, it shall be and become a party to the Credit Agreement as a Lender (and Canadian Lender in the case of U.S. Bank National Association, Canada Branch), and shall have all of the rights and be obligated to perform all of the obligations of a Lender (and Canadian Lender in the case of U.S. Bank National Association, Canada Branch) thereunder with the Revolving Commitment applicable to it identified on Annex A attached hereto. Each of U.S. Bank National Association and U.S. Bank National Association,
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b.
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By its execution of this Amendment, Citizens Business Capital, a division of Citizens Asset Finance, Inc. hereby confirms and agrees that, on and after the date hereof, it shall be and become a party to the Credit Agreement as a Lender and Canadian Lender, and shall have all of the rights and be obligated to perform all of the obligations of a Lender and Canadian Lender thereunder with the Revolving Commitment applicable to it identified on Annex A attached hereto. Citizens Business Capital, a division of Citizens Asset Finance, Inc. further (i) represents and warrants that it is has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and to become a Lender and Canadian Lender under the Credit Agreement; (ii) confirms that it has received copies of the Credit Agreement and such other Loan Documents, documents, and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (iii) agrees that it shall, independently and without reliance upon Administrative Agent, any other agent, or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents; (iv) appoints and authorizes Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to Administrative Agent by the terms thereof, together with such powers as are incidental thereto; and (v) agrees that it will observe and perform all obligations that are required to be performed by it as a “Lender” and “Canadian Lender” under the Loan Documents. For the avoidance of doubt, Borrowers hereby consent to Citizens Business Capital, a division of Citizens Asset Finance, Inc. becoming a Lender and Canadian Lender under the Credit Agreement.
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c.
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By its execution of this Amendment, Branch Banking and Trust Company hereby confirms and agrees that, on and after the date hereof, it shall be and become a party to the Credit Agreement as a Lender and Canadian Lender, and shall have all of the rights and be obligated to perform all of the obligations of a Lender and Canadian Lender thereunder with the Revolving Commitment applicable to it identified on Annex A attached hereto. Branch Banking and Trust Company further (i) represents and warrants that it is has full power and authority, and has taken all action necessary, to execute and deliver this
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6.
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Ratable Commitments
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Concurrently with the effectiveness of this Amendment, each Lender shall assign to the other Lenders, and such other Lenders shall purchase from such Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by all Lenders ratably in accordance with their Revolving Commitments after giving effect to the provisions of this Amendment.
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7.
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Choice of Law
. The validity of this Amendment, the construction, interpretation and enforcement hereof, and the rights of the parties hereto with respect to all matters arising hereunder or related hereto shall be determined under, governed by, and construed in accordance with the laws of the State of New York.
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8.
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Counterparts
. This Amendment may be executed in any number of counterparts and by different parties and separate counterparts, each of which when so executed and delivered, shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile shall be effective as delivery of a manually executed counterpart of the Amendment.
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9.
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Reference to and Effect on the Loan Documents
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a.
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Upon and after the Eighth Amendment Effective Date, each reference in the Existing Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Existing Credit Agreement as modified and amended hereby.
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b.
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Upon and after the Eighth Amendment Effective Date, each reference in the Existing Security Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Security Agreement, and each reference in the other Loan Documents to “the Security Agreement”, “thereof” or words of like import referring to the Security Agreement, shall mean and be a reference to the Existing Security Agreement as modified and amended hereby.
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c.
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Except as specifically amended by Section 1 and Section 2 of this Amendment, the Existing Credit Agreement, the Existing Security Agreement and all other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed and shall constitute the legal, valid, binding and enforceable obligations of the
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d.
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The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power, or remedy of Administrative Agent or any Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
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10.
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Estoppel
. To induce Administrative Agent and Lenders to enter into this Amendment and to induce Administrative Agent and the Lenders to continue to make advances to the Borrowers under the Credit Agreement, each Borrower hereby acknowledges and agrees that, after giving effect to this Amendment, as of the date hereof, there exists no Default or Event of Default and no right of offset, defense, counterclaim or objection in favor of any Borrower as against Administrative Agent or any Lender with respect to the Obligations.
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11.
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Integration
. This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.
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12.
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Severability
. In case any provision in this Amendment shall be invalid, illegal, or unenforceable, such provision shall be severable from the remainder of this Amendment and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
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13.
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Submission of Amendment
. The submission of this Amendment to the parties or their agents or attorneys for review or signature does not constitute a commitment by Administrative Agent or any Lender to waive any of their respective rights and remedies under the Loan Documents, and this Amendment shall have no binding force or effect until all of the conditions to the effectiveness of this Amendment have been satisfied as set forth herein.
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By:
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/S/ Theodore Castro
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Name:
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Theodore Castro
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Title:
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Treasurer and Secretary
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By:
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/S/ Theodore Castro
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Name:
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Theodore Castro
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Title:
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Treasurer and Secretary
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By:
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/S/ Theodore Castro
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Name:
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Theodore Castro
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Title:
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Treasurer and Secretary
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By:
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/S/ Theodore Castro
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Name:
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Theodore Castro
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Title:
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Treasurer and Secretary
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By:
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/S/ Theodore Castro
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Name:
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Theodore Castro
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Title:
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Treasurer and Secretary
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By:
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/S/ Theodore Castro
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Name:
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Theodore Castro
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Title:
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Treasurer and Secretary
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By:
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/S/ James Fallahay
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Name:
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James Fallahay
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Title:
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Authorized Officer
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By:
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/S/ Michael N. Tam
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Name:
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Michael N. Tam
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Title:
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Senior Vice President
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By:
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/S/ Gregory A. Jones
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Name:
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Gregory A. Jones
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Title:
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Senior Vice President
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By:
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/S/ Sylwia Durkiewicz
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Name:
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Sylwia Durkiewicz
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Title:
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Vice President
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By:
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/S/ Reza Sabahi
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Name:
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Reza Sabahi
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Title:
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Authorized Signatory
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By:
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/S/ Domenic Cosentino
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Name:
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Domenic Cosentino
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Title:
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Vice President
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By:
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/S/ Eugene Dempsey
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Name:
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Eugene Dempsey
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Title:
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Director
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By:
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/S/ Craig Thistlethwaite
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Name:
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Craig Thistlethwaite
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Title:
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Managing Director
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By:
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/S/ Helen Alvarez-Hernandez
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Name:
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Helen Alvarez-Hernandez
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Title:
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Director
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By:
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/S/ Lynne Ciaccia
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Name:
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Lynne Ciaccia
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Title:
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Authorized Office
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By:
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/S/ Lynne Ciaccia
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Name:
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Lynne Ciaccia
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Title:
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Authorized Office
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By:
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/S/ Lawrence E Ridgway
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Name:
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Lawrence E Ridgway
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Title:
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Senior Vice President
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By:
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/S/ Brian R Jones
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Name:
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Brian R Jones
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Title:
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Senior Vice President
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Lender
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Revolving Commitment
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Canadian Commitment
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JPMorgan Chase Bank, N.A.
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$87,500,000
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Cdn.$0
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JPMorgan Chase Bank, N.A., Toronto Branch
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$—
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Cdn $21,388,888.89
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Wells Fargo Capital Finance, LLC
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$87,500,000
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Cdn.$0
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Wells Fargo Capital Finance Corporation Canada
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$—
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Cdn $21,388,888.89
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Bank of Montreal
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$87,500,000
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Cdn $21,388,888.89
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Bank of America, N.A.
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$61,500,000
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Cdn.$0
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Bank of America, N.A. (acting through its Canada branch)
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$—
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Cdn.$15,033,333.33
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The Bank of Nova Scotia
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$36,000,000
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Cdn.$8,800,000
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Branch Banking and Trust Company
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$35,000,000
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Cdn.$8,555,555.56
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Citizens Business Capital, a division of Citizens Asset Finance, Inc.
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$27,500,000
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Cdn.$6,722,222.22
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U.S. Bank National Association
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$27,500,000
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Cdn.$0
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U.S. Bank National Association, Canada Branch
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$—
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Cdn.$6,722,222.22
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Total
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$450,000,000
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Cdn.$110,000,000
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