Exhibit 2.36
AMENDMENT NO. 5
Dated as of October 19, 2006
to
THIRD AMENDED AND RESTATED
Dated as of October 23, 2003
THIS AMENDMENT NO. 5 (this “
Amendment”) dated
as of October 19, 2006 is entered into by and among
(i) NMC FUNDING CORPORATION, a Delaware corporation (the
“
Transferor”), (ii) NATIONAL MEDICAL CARE,
INC., a Delaware corporation, as collection agent (the
“
Collection Agent”), (iii) the
“Conduit Investors,” “Bank Investors” and
“Administrative Agents” identified on the signature
pages hereto and (iv) WESTLB AG,
NEW YORK BRANCH, as agent
(the “
Agent”).
PRELIMINARY STATEMENTS
A. The Transferor, the Collection Agent, the Conduit
Investors, the Bank Investors, the Administrative Agents and the
Agent are parties to that certain Third Amended and Restated
Transfer and Administration Agreement dated as of
October 23, 2003 (as amended or otherwise modified prior to
the date hereof, the “
TAA”). Capitalized terms
used herein and not otherwise defined shall have the meanings
ascribed to them in the TAA.
B. The parties hereto have agreed to add Amsterdam Funding
Corporation as a “Conduit Investor” under the TAA and
ABN AMRO Bank N.V. as a “Bank Investor” and
“Administrative Agent” under the TAA.
C. In addition, the parties hereto have agreed to amend the
TAA on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth
above, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Amendments to
TAA. Subject to the conditions precedent set forth in
Section 3 below and effective as of the Effective
Date (also as defined below), the TAA is hereby amended as
follows:
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1.1 The following new definitions
are added to Section 1.1 of the TAA in appropriate
alphabetical order: |
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“ABN AMRO” means ABN AMRO Bank N.V. together
with its successors and permitted assigns. |
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“Amsterdam Funding” means Amsterdam Funding
Corporation, a Delaware corporation, together with its
successors and permitted assigns. |
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“GBFC” means Giro Balanced Funding Corporation
together with its successors and permitted assigns. |
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1.2 The definition of
“Administrative Agent” in Section 1.1 of
the TAA is amended and restated in its entirety to read as
follows: |
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“Administrative Agent” means (i) WestLB
AG, New York Branch, as administrative agent for the Related
Group that includes Paradigm, (ii) Bayerische Landesbank,
New York Branch, as administrative agent for the Related Group
that includes GBFC, (iii) The Bank of Nova Scotia, as
administrative agent for the Related Group that includes Liberty
Street, or (iv) ABN AMRO, as administrative agent for the
Related Group that includes Amsterdam Funding. |
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1.3 The definition of
“Commitment Termination Date” in
Section 1.1 of the TAA is amended change the date
set forth therein from “October 19, 2006” to
“October 18, 2007.” |
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1.4 The definition of
“Concentration Factor” in Section 1.1 of
the TAA is amended to replace clause (a) thereof with the
following: |
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“(a) in the case of any Commercial Obligor or Hospital
Obligor that does not have a Special Concentration Limit (as
defined below), 5.0% of the Net Receivables Balance outstanding
on such date; provided that, subject to clause (c)
below, the Concentration Factor for each of Aetna, Inc., Cigna
Corp., Wellpoint Inc. and United Health Group Inc., and any
successor thereto, shall be (i) for so long as such Obligor
is rated at least A- by Standard & Poor’s and at
least A3 by Moody’s and, if rated by Fitch, at least A- by
Fitch, 10.0% of the Net Receivables Balance outstanding on such
date and (ii) for so long as clause (i) does not apply
but such Obligor is rated at least BBB- by Standard &
Poor’s and at least Baa3 by Moody’s and, if rated by
Fitch, at least BBB- by Fitch, 7.0% of the Net Receivables
Balance outstanding on such date;” |
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1.5 The definition of “Conduit
Investor” in Section 1.1 of the TAA is hereby
amended and restated in its entirety to read as follows: |
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“Conduit Investor” means Paradigm, GBFC,
Liberty Street Funding Corporation or Amsterdam Funding. |
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1.6 The definition of
“Facility Limit” in Section 1.1 of the TAA
is amended and restated to change the dollar amount set forth
therein from “$460,000,000” to
“$650,000,000”. |
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1.7 The definition of
“FMCAG” in Section 1.1 of the TAA is
amended to read as follows: |
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“FMCAG” means Fresenius Medical Care
AG & Co. KgaA., formerly known as Fresenius Medical
Care AG, a partnership limited by shares organized and existing
under the laws of the Federal Republic of Germany and its
successors and permitted assigns. |
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1.8 The definition of
“GMFC” in Section 1.1 of the TAA is
deleted. All references in the TAA to “GMFC” are
replaced with the term “GBFC”. |
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1.9 The definition of “Loss
Horizon” in Section 1.1 of the TAA is amended
and restated in its entirety to read as follows: |
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“Loss Horizon” means, as of any date, the
product of (a) a ratio (expressed as a percentage) computed
by dividing (i) the aggregate Outstanding Balance of all
Receivables acquired by the Transferor during the two
(2) most recently ended calendar months by (ii) the
aggregate Outstanding Balance of all Receivables that are not
more than 270 days past due as of the last day of the most
recently ended calendar month times (b) the highest average
Default Ratio for any consecutive three month period during the
immediately preceding
12-month period. |
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1.10 The definition of “Loss
Percentage” in Section 1.1 of the TAA is
amended and restated in its entirety to instead provide as
follows: |
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“Loss Percentage” means on any day the greater
of (i) two (2) times the Loss Horizon as of such day
and (ii) 20%. |
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1.11 The definition of
“Related Group” in Section 1.1 of
the TAA is amended and restated in its entirety to instead
provide as follows: |
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“Related Group” means any of the following
groups: (i) Paradigm, as a Conduit Investor, Landesbank
Hessen-Thueringen Girozentrale, as a Bank Investor and WestLB,
as a Bank Investor and as an Administrative Agent, together with
their respective successors and permitted assigns,
(ii) GBFC, as a Conduit Investor, and Bayerische
Landesbank, Cayman Islands Branch, as a Bank Investor and
Bayerische Landesbank, New York Branch, as an Administrative
Agent, together with their respective successors and permitted
assigns, (iii) Liberty Street, as a Conduit Investor, and
Scotiabank, as a Bank Investor and as Administrative Agent,
together with their respective successors and permitted assign |
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and (iv) Amsterdam Funding, as a Conduit Investor, and ABN
AMRO, as a Bank Investor and as an Administrative Agent,
together with their respective successors and permitted assigns. |
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1.12 The definition of
“Termination Date” in Section 1.1 of the
TAA is amended to change the date set forth in clause (v)
thereof from “October 19, 2006” to
“October 18, 2007.” |
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1.13 Section 2.15 of the TAA
is hereby amended to add the following new
paragraph (c) immediately after paragraph (b): |
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(c) The Transferor may terminate RenaLab, Inc. as a
Transferring Affiliate at any time prior to March 31, 2007
so long as (i) at the time of such termination, the
aggregate Outstanding Balance of the Receivables originated by
RenaLab, Inc. does not exceed $15,000,000 and (ii) all of
the equity interests in RenaLab, Inc. have been (or will be, at
the time of termination) sold to a third party that is not an
Affiliate of the Transferor. Any such termination shall be made
upon written notice to the Administrative Agents from the
Collection Agent and the Transferor (i) stating that
Renalab, Inc. has been terminated as a Transferring Affiliate
and (ii) indicating the effective date of such termination.
On the effective date of such termination Exhibit Q, shall,
without further act or documentation, be deemed amended to
remove Renalab, Inc. from the list of Transferring Affiliates
set forth therein; provided that Renalab, Inc. shall
continue to be a “Transferring Affiliate” with respect
to any Receivables that arose prior to such effective date. |
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1.14 Section 7.1 of the
TAA is hereby amended to replace subpart (ii) of
clause (m) thereof with the following: |
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“(ii) the Percentage Factor equals or exceeds 100.0% at any
time unless the Transferor reduces the Net Investment or
increases the balance of the Affected Assets on the next
Business Day so as to reduce the Percentage Factor to less than
or equal to 100%;” |
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1.15 Section 10.3 of
the TAA is amended to add the following notice addresses for
Amsterdam Funding and ABN AMRO, respectively: |
If to Amsterdam Funding Corporation:
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c/o ABN AMRO Bank N.V. |
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000 X. Xxxxxxx Xxxxxx |
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Mail Code C540-2721 |
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Xxxxxxx, XX 00000 |
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Attn: Global Asset Securitization |
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Fax: (000) 000-0000 |
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If to the Administrative Agent for Amsterdam Funding Corporation: |
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ABN AMRO Bank N.V. |
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000 X. Xxxxxxx Xxxxxx |
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Mail Code C540-2721 |
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Xxxxxxx, XX 00000 |
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Attn: Global Asset Securitization |
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Fax: (000) 000-0000 |
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1.16 Schedule I to the TAA is
hereby amended to add the following as the notice address for
ABN AMRO in its capacity as a Bank Investor. |
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ABN AMRO Bank N.V. |
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000 X. Xxxxxxx Xxxxxx |
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Mail Code C540-2721 |
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Xxxxxxx, XX 00000 |
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Attn: Global Asset Securitization |
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Fax: (000) 000-0000 |
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1.17 Schedule II to the TAA is
hereby amended and restated in its entirety to read as set forth
in the new Schedule II attached hereto. |
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1.18 Exhibit C to the TAA is
hereby amended and restated in its entirety to read as set forth
in the new Exhibit C attached hereto. |
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1.19 Exhibit Q to the TAA is
hereby amended and restated in its entirety to read as set forth
in the new Exhibit Q attached hereto. Upon the
effectiveness of such amendment and restatement, each of the
entities set forth on such new Exhibit Q under the heading
“New Transferring Affiliate” (each a “New
Transferring Affiliate”) shall be a Transferring
Affiliate under and for purposes of the TAA. |
SECTION 2. Addition of New
Investor: Assignment and Acceptance; Special Adjustment.
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(a) Each of the parties hereto agrees that, effective as of the
Effective Date, (i) Amsterdam Funding shall become a party
to the TAA as a Conduit Investor and (ii) ABN AMRO shall
become a party to the TAA as a Bank Investor and as an
Administrative Agent. |
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(b) The parties hereto acknowledge that an adjustment to the Net
Investment held by the respective Related Groups is required to
be made on the Effective Date in order to ensure that the Net
Investment held by the Investors in each Related Group is
proportional to their respective Related Group Limits.
Accordingly, on the Effective Date, (i) the Transferor
shall make a special Incremental Transfer to be funded solely by
the Investors in one or more of the Related Groups and/or shall
make a special payment to the Administrative Agent for one or
more of the Related Groups as a reduction to the Net Investment
held by the Investors in such Related Groups, in each case of
clauses (i) and (ii) in an amount such that (after
giving effect to each such Incremental Transfer and payment) the
Net Investment held by the respective Related Groups shall be
proportional to their respective Related Group Limits. |
SECTION 3. Conditions
Precedent. This Amendment shall become effective and be
deemed effective as of the date hereof (the “Effective
Date”) subject to the Agent’s receipt of the
following, each in form and substance satisfactory to each
Administrative Agent:
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(a) counterparts of this Amendment duly executed by the
Transferor, the Collection Agent, the Conduit Investors, the
Bank Investors, the Administrative Agents and the Agent; |
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(b) a reaffirmation of the Parent Agreement, substantially in
the form of Exhibit A attached hereto, duly executed by
each of FMCAG and FMCH; |
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(c) a copy of the resolutions of the Board of Directors of each
of the Transferor, the Collection Agent and each New
Transferring Affiliate certified by its Secretary approving the
execution, delivery and performance by such Person of this
Amendment and the other Transaction Documents to be delivered by
such Person hereunder or thereunder; |
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(d) the Certificate of Incorporation (or equivalent
organizational document) of each New Transferring Affiliate
certified by the Secretary or Assistant Secretary of each New
Transferring Affiliate; |
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(e) a Good Standing Certificate for each of the Transferor, the
Collection Agent and each New Transferring Affiliate issued by
the Secretary of State or other similar official of such
Person’s jurisdiction of incorporation; |
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(f) a Certificate of Secretary or Assistant Secretary of each of
the Transferor, the Collection Agent and each New Transferring
Affiliate substantially in the form of Exhibit L to the TAA; |
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(g) for each New Transferring Affiliate and the Transferor,
copies of proper financing statements, dated a date reasonably
near the date hereof naming such New Transferring Affiliate, as
the debtor in favor of the Agent, for the benefit of the
Investors, as the secured party or other similar instruments or
documents as may be necessary or in the reasonable opinion of
the Agent desirable under the UCC of all appropriate
jurisdictions or any comparable law to cause the Agent’s
undivided percentage interest in all Receivables and the Related
Security and Collections relating thereto to be a continuously
perfected first priority interest through the Termination Date; |
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(h) an opinion of Xxxxxxx X. Xxxx, Deputy General Counsel for
FMCH, NMC and each Transferring Affiliate, acting as counsel to
FMCH, the Transferor, the Collection Agent and the Originating
Entities, in form and substance satisfactory to each
Administrative Agent; |
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(i) an opinion of Arent Fox PLLC, special counsel to the
Transferor and the Originating Entities relating to UCC issues,
in form and substance satisfactory to each Administrative Agent; |
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(j) Amendment No. 4 to Transferring Affiliate Letter, duly
executed and delivered by the Seller and each of the
Transferring Affiliates, in the form attached hereto as
Exhibit B; |
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(k) An amended and restated Investor Fee Letter, and
Confirmation that all fees due and payable on or before the
Effective Date have been paid in full; |
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(l) confirmation from each Rating Agency that the execution and
delivery of this Amendment and the transactions contemplated
hereby will not result in the reduction or withdrawal of the
then current rating of the Commercial Paper issued by any
Conduit Investor requesting such confirmation; and |
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(m) such other documents, instruments, certificates and opinions
as the Agent or any Administrative Agent shall reasonably
request. |
SECTION 4. Covenants,
Representations and Warranties of the Transferor and the
Collection Agent.
4.1 Upon the effectiveness of this
Amendment, each of the Transferor and the Collection Agent
hereby reaffirms all covenants, representations and warranties
made by it in the TAA and agrees that all such covenants,
representations and warranties shall be deemed to have been
remade as of the effective date of this Amendment.
4.2 Each of the Transferor and the
Collection Agent hereby represents and warrants that
(i) this Amendment constitutes the legal, valid and binding
obligation of such party, enforceable against it in accordance
with its terms and (ii) upon the effectiveness of this
Amendment, no Termination Event or Potential Termination Event
shall exist under the TAA.
SECTION 5. Reference to and
Effect on the TAA.
5.1 Upon the effectiveness of this
Amendment, each reference in the TAA to “this
Agreement,” “hereunder,” “hereof,”
“herein,” “hereby” or words of like import
shall mean and be a reference to the TAA as amended hereby, and
each reference to the TAA in any other document, instrument and
agreement executed and/or delivered in connection with the TAA
shall mean and be a reference to the TAA as amended hereby.
5.2 Except as specifically amended
hereby, the TAA 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.
5.3 The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of any Investor, any Administrative
Agent or the Agent under the TAA or any other document,
instrument, or agreement executed in connection therewith, nor
constitute a waiver of any provision contained therein.
SECTION 6.
Governing
Law. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF
LAW PROVISIONS) AND DECISIONS OF THE STATE OF
NEW YORK.
SECTION 7. Execution in
Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together
shall constitute but one and the same instrument. Delivery of an
executed counterpart of this Amendment by facsimile shall be
equally as effective as delivery of an original executed
counterpart of this Amendment. Any party delivering an executed
counterpart of this Amendment by facsimile shall also deliver an
original executed counterpart of this Amendment but the failure
to deliver an original executed counterpart shall not affect the
validity, enforceability and binding effect of this Amendment.
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SECTION 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto
duly authorized as of the date first written above.
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NMC FUNDING CORPORATION, as Transferor |
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NATIONAL MEDICAL CARE, INC., as |
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Collection Agent |
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PARADIGM FUNDING LLC, as a Conduit Investor |
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WESTLB AG, NEW YORK BRANCH, as an Administrative Agent
and as a Bank Investor |
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Title: |
Associate Director |
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LANDESBANK
HESSEN-THUERINGEN |
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GIROZENTRALE, as a Bank Investor |
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GIRO BALANCED FUNDING CORPORATION, |
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as a Conduit Investor |
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BAYERISCHE LANDESBANK, NEW YORK BRANCH, as an
Administrative Agent |
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By: |
/s/ Xxxxxxxxx Xxxxxxx |
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Title: |
Senior Vice President |
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BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH, as a Bank
Investor |
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LIBERTY STREET FUNDING CORP., as a Conduit Investor |
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XXX XXXX XX XXXX XXXXXX, as an |
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Administrative Agent and as a Bank Investor |
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AMSTERDAM FUNDING CORPORATION, |
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as a Conduit Investor |
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ABN AMRO Bank N.V., as an Administrative |
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Agent and as a Bank Investor |
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By: |
/s/ Xxxxxx X. Educate |
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Title: |
Senior Vice President |
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