Contract
EXECUTION COPY
CONSENT
AND AMENDMENT
Dated
as of November 2, 2007
To
the Lenders party to the Credit Agreement
and
the Administrative Agent referred to below
Ladies
and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 24, 2006 (as
amended, modified or supplemented as of the date hereof, the “Credit
Agreement”), among FirstEnergy Corp., an Ohio corporation,
FirstEnergy Solutions Corp., an Ohio corporation, American Transmission Systems,
Incorporated, an Ohio corporation, Ohio Edison Company, an Ohio corporation,
Pennsylvania Power Company, a Pennsylvania corporation, The Cleveland Electric
Illuminating Company, an Ohio corporation, The Toledo Edison Company, an
Ohio
corporation, Jersey Central Power & Light Company, a New Jersey corporation,
Metropolitan Edison Company, a Pennsylvania corporation, and Pennsylvania
Electric Company, a Pennsylvania corporation, the banks and other financial
institutions parties thereto, Citibank, N.A., as administrative agent, the
fronting banks party thereto and the swing line lenders party thereto.
Capitalized terms used herein and not otherwise defined herein have the meanings
given such terms in the Credit Agreement.
Section
1. Termination Date Extension.
Pursuant
to Section 2.19 of the Credit Agreement, the Borrowers
hereby request that each Lender consent to a one-year extension of the
Termination Date with respect to such Lender’s Commitment and its Outstanding
Credits. By signing in the appropriate space provided in the
signature pages hereof, and subject to the satisfaction of the conditions
precedent set forth in Section 2 below, each Lender hereby (i) consents to
such
extension with respect to its Commitment and its Outstanding Credits and
(ii)
waives those provisions of Section 2.19(b) of the Credit Agreement that specify
that each Lender’s consent to the Borrowers’ foregoing extension request be
delivered no earlier than 60 days and no later than 70 days following the
Extension Notice Date and agrees instead that any Lender that has not executed
and delivered this Consent and Amendment to the Administrative Agent within
18
days following the date hereof shall be deemed not to have consented to such
extension request.
Section
2. Conditions Precedent to Termination Date Extension.
Section
1 of this Consent and Amendment shall become effective as
of November 20, 2007 if on or prior to such date (i) Lenders holding Commitments
aggregating more than 66-2/3% of the Commitments shall have executed and
delivered this Consent and Amendment in accordance with Section 1 above,
(ii)
the following statements shall be true: (A) no event has occurred and is
continuing, or would result from the extension of the Termination Date, that
constitutes an Event of Default or would, with the giving of notice or the
lapse
of time, or both, constitute an Event of Default, and (B) the
representations and warranties contained in Section 4.01 of the Credit
Agreement are correct in all material respects on and as of the date of
extension of the Termination Date, before and after giving effect to such
extension, as though made on and as of such date (provided however that
subsections (f) and (g) thereof shall be deemed to read as set forth in the
proposed amendments set forth in Section 3(vii) of this Consent and Amendment),
and (iii) the Administrative Agent shall have received the following, each
dated
such date and in form and substance satisfactory to the Administrative Agent:
(x) a certificate of a duly authorized officer of each Borrower to the
effect that as of the date of extension of the Termination Date the statements
set forth in clauses (A) and (B) above are true, (y) certified copies of
the resolutions of the Board of Directors of each Borrower authorizing such
extension and the performance of the Credit Agreement on and after the date
of
extension of the Termination Date, and of all documents evidencing other
necessary corporate action and Governmental Action with respect to the Credit
Agreement and such extension of the Termination Date and (z) an opinion or
opinions of counsel to the Borrowers, as to such matters related to the
foregoing as the Administrative Agent or the Lenders through the Administrative
Agent may reasonably request.
Section
3. Credit Agreement
Amendments. The parties agree that, subject to the
satisfaction of the conditions precedent set forth in Section 4 below:
(i)
The term “Borrower Sublimit” set
forth in Section 1.01 of the Credit Agreement is amended and restated in
its
entirety to read as follows:
““Borrower Sublimit” means: (i) with
respect to FE, $2,750,000,000, (ii) with respect to FES, $1,000,000,000,
(iii)
with respect to ATSI, $0 (unless and until increased pursuant to Section
2.06(c)), (iv) with respect to OE, $500,000,000, (v) with respect to Penn,
$50,000,000, (vi) with respect to CEI, $250,000,000 (unless and until increased
pursuant to Section 2.06(c)), (vii) with respect to TE, $250,000,000 (unless
and
until increased pursuant to Section 2.06(c)), (viii) with respect to JCP&L,
$425,000,000, (ix) with respect to Met-Ed, $250,000,000, and (x) with respect
to
Penelec, $250,000,000.”
(ii) Section
1.01 of the Credit Agreement is amended by
adding each of the following definitions in its proper alphabetical place:
““Additional
Commitment Lender” has the
meaning set forth in Section 2.19(d).”
““Anniversary
Date” has the meaning set
forth in Section 2.19(a).”
““Existing
Termination Date” has the
meaning set forth in Section 2.19(a).”
““Extension
Notice Date” has the meaning
set forth in Section 2.19(b).”
““Specified Date”
has
the
meaning set forth in Section 2.19(c).”
(iii)
The first sentence of Section 2.06(c) of the Credit
Agreement is amended by deleting the first sentence therein and substituting
the
following therefor:
“ATSI
may increase its Borrower Sublimit up to $100,000,000 by
delivering a notice to the Administrative Agent requesting such increase,
subject to the condition that either (i) ATSI has Reference Ratings of at
least
BBB- by S&P and Baa3 by Xxxxx’x or (ii) FE unconditionally guarantees the
amounts payable by ATSI hereunder by delivering to the Administrative Agent
a
duly completed Guaranty executed by FE.”
(iv)
Section 2.12(b)(iv) of the Credit Agreement is amended and
restated in its entirety to read as follows:
“If
at any time ATSI shall have Outstanding Credits
and shall fail to have Reference Ratings of at least BBB- by S&P and Baa3 by
Xxxxx’x, and FE shall fail to deliver to the Administrative Agent a Guaranty
executed by FE, ATSI agrees (A) to prepay to the Administrative Agent the
principal amount of all Advances outstanding to ATSI and (B) to pay to the
Administrative Agent an amount in immediately available funds (which funds
shall
be held as collateral pursuant to arrangements satisfactory to the
Administrative Agent) equal to all of the amount available for drawing under
the
Letters of Credit outstanding to ATSI at such time.”
(v) Section
2.19 of the Credit Agreement is amended and
restated in its entirety to read as follows:
SECTION
2.19. Extension of
Termination Date.
(a) The Borrowers may, by notice to the Administrative Agent (which
shall promptly notify the Lenders) not earlier than 45 days and not later
than
35 days prior to any anniversary of the date of this Agreement (the
“Anniversary Date”), request that each Lender extend
such Lender’s Termination Date for an additional one year after the Termination
Date then in effect for such Lender hereunder (the “Existing
Termination Date”).
(b) Each Lender, acting in its sole and individual discretion,
shall, by notice to the Administrative Agent given not earlier than 30
days
prior to the applicable Anniversary Date and not later than the date (the
“Extension Notice Date”) that is 20 days prior to the
Applicable Anniversary Date, advise the Administrative Agent whether or
not such
Lender agrees to such extension (and each Lender that determines not to
so
extend its Existing Termination Date (a “Nonconsenting
Lender”) shall notify the Administrative Agent of such fact
promptly after such determination (but in any event no later than the Extension
Notice Date), and any Lender that does not so advise the Administrative
Agent on
or before the Extension Notice Date shall be deemed to be a Nonconsenting
Lender. The election of any Lender to agree to such extension shall
not obligate any other Lender to so agree.
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(c) The Administrative Agent shall notify the Borrowers of each
Lender’s determination under this Section no later than the date 15 days
following the Extension Notice Date, or, if such date is not a Business
Day, on
the next preceding Business Day (the “Specified
Date”).
(d) The
Borrowers shall have the right on or before the
Specified Date to replace each Nonconsenting Lender with, and add as “Lenders”
under this Agreement in place thereof, one or more Eligible Assignees (each,
an
“Additional Commitment Lender”) with the approval of
the Administrative Agent, the Swing Line Lenders and the Fronting Banks (which
approvals shall not be unreasonably withheld), each of which Additional
Commitment Lenders shall have entered into an agreement in form and substance
satisfactory to the Borrowers and the Administrative Agent pursuant to which
such Additional Commitment Lender shall, effective as of the Specified Date,
undertake a Commitment (and, if any such Additional Commitment Lender is
already
a Lender, its Commitment shall be in addition to such Lender’s Commitment
hereunder on such date).
(e) If
(and only if) the aggregate amount of the
Commitments of the Lenders that have agreed so to extend their Existing
Termination Dates plus the aggregate additional Commitments of the Additional
Commitment Lenders shall be more than 66-2/3% of the aggregate amount of
the
Commitments in effect immediately prior to the Specified Date, then, effective
as of the Specified Date, the Existing Termination Date of each Lender agreeing
to an extension and of each Additional Commitment Lender shall be extended
to
the date that is one year after the Existing Termination Date, and each
Additional Commitment Lender shall thereupon become a “Lender” for all purposes
of this Agreement.
(f) Notwithstanding
the foregoing, the extension of a
Lender’s Existing Termination Date pursuant to this Section shall be effective
with respect to such Lender on the Specified Date but only if (i) the following
statements shall be true: (A) no event has occurred and is continuing, or
would result from the extension of the Existing Termination Date, that
constitutes an Event of Default or an Unmatured Default and (B) the
representations and warranties contained in Section 4.01 are correct in all
material respects on and as of the Specified Date, before and after giving
effect to such extension, as though made on and as of such date, and (ii)
on or
prior to the Specified Date the Administrative Agent shall have received
the
following, each dated the Specified Date and in form and substance satisfactory
to the Administrative Agent: (x) a certificate of a duly authorized officer
of each Borrower to the effect that as of the Specified Date the statements
set
forth in clauses (A) and (B) above are true, (y) certified copies of the
resolutions of the Board of Directors of each Borrower authorizing such
extension and the performance of this Agreement on and after the Specified
Date,
and of all documents evidencing other necessary corporate action and
Governmental Action with respect to this Agreement and such extension of
the
Existing Termination Date and (z) an opinion of counsel to the Borrowers,
as to such matters related to the foregoing as the Administrative Agent or
the
Lenders through the Administrative Agent may reasonably request.
(g) Subject
to subsection (d) above, the
Commitment of any Nonconsenting Lender shall automatically terminate on its
Existing Termination Date (without regard to any extension by any other
Lender).”
(vi) Section
3.02(ii) of the Credit Agreement is
amended and restated in its entirety to read as follows:
“(ii) In
the case of an Extension of Credit with respect
to ATSI without delivery of a Guaranty executed by FE, the financial statements
described in Section 5.01(g)(ii) and (iii) shall be currently available for
ATSI, and ATSI shall have delivered copies of such financial statements to
the
Administrative Agent; and”
(vii) Subsections
(f) and (g) of Section 4.01 of the
Credit Agreement are amended and restated in their entirety to read as
follows:
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“(f) Litigation. Except
as disclosed in FE’s, with respect to FE, ATSI and FES, or such Borrower’s, with
respect to any other Borrower, Annual Report on Form 10-K for the fiscal
year
ended December 31, 2006, its Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2007, June 30, 2007 and September 30, 2007 and its Current
Reports on Form 8-K filed in 2007 prior to November 2, 2007, or additionally
with respect to FES in its Quarterly Report on Form 10-Q for the quarter
ended September 30, 2007 (copies of which have been furnished to each Lender),
there is no pending or threatened action or proceeding (including, without
limitation, any proceeding relating to or arising out of Environmental Laws)
affecting it or any of its Subsidiaries before any court, governmental agency
or
arbitrator that has a reasonable possibility of having a material adverse
effect
on the business, condition (financial or otherwise), results of operations
or
prospects of it and its consolidated subsidiaries, taken as a whole, or on
the
ability of such Borrower to perform its obligations under this Agreement
or any
other Loan Document, and there has been no development in the matters disclosed
in such filings that has had such a material adverse effect.
(g) Financial
Statements; Material Adverse Change. The consolidated
balance sheets of FE and its Subsidiaries, with respect to FE and ATSI, and
such
Borrower and its Subsidiaries, with respect to any other Borrower, as at
December 31, 2006, and the related consolidated statements of income,
retained earnings and cash flows of FE and its Subsidiaries, with respect
to FE
and ATSI, and such Borrower and its Subsidiaries, with respect to any other
Borrower, for the fiscal year then ended, certified by PricewaterhouseCoopers
LLP, independent public accountants, and the unaudited consolidated balance
sheet of FE and its Subsidiaries, with respect to FE and ATSI, and such Borrower
and its Subsidiaries, with respect to any other Borrower, as at September
30,
2007, and the related consolidated statements of income, retained earnings
and
cash flows of FE and its Subsidiaries, with respect to FE and ATSI, and such
Borrower and its Subsidiaries, with respect to any other Borrower, for the
nine
months then ended, copies of each of which have been furnished to each Lender
and each Fronting Bank, in all cases as amended and restated to the date
hereof,
present fairly the consolidated financial position of such Borrower and its
Subsidiaries as at such dates and the consolidated results of the operations
of
such Borrower and its Subsidiaries for the periods ended on such dates, all
in
accordance with GAAP consistently applied. Except as disclosed in FE’s, with
respect to FE, ATSI and FES, or such Borrower’s, with respect to any other
Borrower, Annual Report on Form 10-K for the fiscal year ended December 31,
2006, its Quarterly Reports on Form 10-Q for the quarters ended March 31,
2007,
June 30, 2007 and September 30, 2007 and its Current Reports on Form 8-K
filed
in 2007 prior to November 2, 2007, or additionally with respect to FES in
its
Quarterly Report on Form 10-Q for the quarter ended September 30, 2007
(copies of which have been furnished to each Lender), there has been no material
adverse change in the business, condition (financial or otherwise), results
of
operations or prospects of such Borrower and its Consolidated Subsidiaries,
taken as a whole, since December 31, 2006.”
Section
4. Conditions to Effectiveness of Credit Agreement
Amendment. Section 3 of this Consent and Amendment (the
“Amendments”) shall be effective as of the
date hereof
when and if the following conditions are satisfied (such date being the
“Amendment Date”):
(a)
The
Administrative Agent shall have received the following, each dated the
Amendment
Date, in form and substance satisfactory to the Administrative Agent and
with
one copy for each Fronting Bank and each Lender:
(i) Counterparts
of this
Consent and Amendment, duly executed by each of the Borrowers and each
Lender;
(ii) Certified
copies of
the resolutions of the Board of Directors of each Borrower approving the
Amendments and of all documents evidencing any other necessary corporate
action
with respect to the Amendments;
(iii) A
certificate of the
Secretary or an Assistant Secretary of each Borrower certifying (A) the
names and true signatures of the officers of such Borrower authorized to
sign
this Consent and Amendment and the other documents to be delivered hereunder;
(B) that attached thereto are true and correct copies of the Organizational
Documents of such Borrower, in each case as in effect on such date; and
(C) that attached thereto are true and correct copies of all governmental
and regulatory authorizations and approvals (including such Borrower’s Approval,
as applicable) required for the due execution and delivery by such Borrower
of
this Consent and Amendment and the performance by such Borrower of the
Amendments;
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(iv) An
opinion or
opinions of counsel for the Borrowers regarding the Amendments in a form
reasonably satisfactory to the Administrative Agent;
(v)
A
favorable opinion of King & Spalding LLP, special New York counsel for the
Administrative Agent; and
(vi)
Such
other certifications, opinions, financial or other information, approvals
and
documents as the Administrative Agent, any Fronting Bank, any Swing Line
Lender
or any other Lender may reasonably request, all in form and substance
satisfactory to the Administrative Agent, such Fronting Bank, such Swing
Line
Lender or such other Lender (as the case may be).
(b) The
representations and warranties of the Borrowers
set forth in Section 5 below shall be true and correct in all material respects
on and as of the Amendment Date as though made on and as of such date.
Section
5. Representations and Warranties. Each Borrower
represents and warrants that (i) the representations and warranties contained
in
Article IV of the Credit Agreement, as amended hereby (with each reference
therein to “this Agreement”, “hereunder” and words of like import referring to
the Credit Agreement being deemed to be a reference to this Amendment and
the
Credit Agreement, as amended hereby), are true and correct on and as of the
date
hereof as though made on and as of such date, and (ii) no event has occurred
and
is continuing, or would result from the execution and delivery of this Consent
and Amendment, that constitutes an Event of Default or an Unmatured
Default.
Section
6. Effect on the Credit Agreement. The
execution, delivery and effectiveness of this Consent and Amendment shall
not,
except as expressly set forth herein, operate as a waiver of any right, power
or
remedy of any Lender, Swing Line Lender, Fronting Bank or the Administrative
Agent under the Credit Agreement, or constitute a waiver of any provision
of the
Credit Agreement. Except as expressly set forth herein, the Credit
Agreement is and shall continue to be in full force and effect and is hereby
in
all respects ratified and confirmed. This Consent and Amendment shall be
binding
on the parties hereto and their respective successors and permitted assigns
under the Credit Agreement.
Section
7. Costs, Expenses and
Taxes. FE agrees to pay on demand all costs and
expenses incurred by either the Administrative Agent and any Fronting Banks
in
connection with the preparation, execution and delivery of this Amendment
and
any other documents to be delivered hereunder, including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent and the Fronting Banks with respect thereto and with respect to advising
the Administrative Agent and the Fronting Banks as to their rights and
responsibilities under this Consent and Amendment. FE further agrees
to pay on demand all costs and expenses, if any (including, without limitation,
reasonable fees and out-of-pocket expenses of counsel), incurred by the
Administrative Agent, the Fronting Banks and the Lenders in connection with
the
enforcement (whether through negotiations, legal proceedings or otherwise)
of
this Consent and Amendment and the other documents to be delivered hereunder,
including, without limitation, counsel fees and expenses in connection with
the
enforcement of rights under Section 8.05(a) of the Credit Agreement. In
addition, FE agrees to pay any present or future stamp or documentary taxes
or
any other excise or property taxes, charges or similar levies that arise
from
the execution or delivery of, or otherwise with respect to, this
Amendment.
If
you consent and agree to the foregoing, please evidence such
consent and agreement by (i) executing and returning one counterpart of this
Amendment by facsimile or e-mail to Xxxxx Xxxxxx (fax no. 000-000-0000; e-mail
xxxxxxx@xxxxx.xxx) and (ii) executing and returning six original counterparts
to
this Consent and Amendment by overnight mail to King & Spalding LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx,
no
later than 5:00 p.m., New York City time, on November 16, 2007.
[Remainder
of page intentionally left blank.]
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Very
truly yours,
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FIRSTENERGY
CORP.
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FIRSTENERGY
SOLUTIONS CORP.
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AMERICAN
TRANSMISSION SYSTEMS,
INCORPORATED
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OHIO
EDISON COMPANY
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PENNSYLVANIA
POWER COMPANY
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THE
CLEVELAND ELECTRIC ILLUMINATING
COMPANY
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THE
TOLEDO EDISON COMPANY
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METROPOLITAN
EDISON COMPANY
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PENNSYLVANIA
ELECTRIC COMPANY
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By
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Xxxxx
X. Xxxxxxx
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Treasurer
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JERSEY
CENTRAL POWER & LIGHT
COMPANY
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By
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Xxxxx
Xxxxxx
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Treasurer
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Consent
and Amendment Signature
Page
6
The
undersigned hereby consent
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and
agree to the foregoing:
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CITIBANK,
N.A.
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By
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Name:
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Title:
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Consent
and Amendment Signature
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BARCLAYS
BANK PLC
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By
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Name:
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Title:
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Consent
and Amendment Signature
Page
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JPMORGAN
CHASE BANK, N.A.
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By
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Name:
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Title:
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Consent
and Amendment Signature
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KEYBANK
NATIONAL ASSOCIATION
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By
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Name:
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Title:
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Consent
and Amendment Signature
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WACHOVIA
BANK, NATIONAL
ASSOCIATION
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By
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Name:
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Title:
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Consent
and Amendment Signature Page
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THE
ROYAL BANK OF SCOTLAND PLC
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By
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Name:
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Title:
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Consent
and Amendment Signature Page
00
XXX
XXXX XX XXXX XXXXXX
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By
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Name:
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Title:
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Consent
and Amendment Signature Page
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BANK
OF AMERICA, N.A.
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By
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Name:
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Title:
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Consent
and Amendment Signature
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THE
BANK OF NEW YORK
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By
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Name:
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Title:
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Consent
and Amendment Signature
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CREDIT
SUISSE, CAYMAN ISLANDS
BRANCH
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By
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Name:
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Title:
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By
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Name:
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Title:
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Consent
and Amendment Signature
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XXXXXX
XXXXXXX BANK
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By
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Name:
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Title:
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Consent
and Amendment Signature
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UBS
LOAN FINANCE LLC
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By
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Name:
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Title:
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By
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Name:
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Title:
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Consent
and Amendment Signature
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XXXXX
XXXX XX XXXXXXXXXX, N.A.
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By
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Name:
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Title:
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Consent
and Amendment Signature
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XXXXXX
BROTHERS BANK, FSB
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By
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Name:
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Title:
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Consent
and Amendment Signature
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00
XXXXXXX
XXXXXX CREDIT CORPORATION
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By
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Name:
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Title:
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Consent
and Amendment Signature
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NATIONAL
CITY BANK
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By
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Name:
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Title:
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Consent
and Amendment Signature
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SUMITOMO
MITSUI BANKING
CORPORATION
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By
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Name:
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Title:
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Consent
and Amendment Signature
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MIZUHO
CORPORATE BANK, LTD.
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By
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Name:
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Title:
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Consent
and Amendment Signature
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PNC
BANK, NATIONAL ASSOCIATION
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By
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Name:
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Title:
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Consent
and Amendment Signature
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U.S.
BANK, N.A.
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By
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Name:
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Title:
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Consent
and Amendment Signature
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SUNTRUST
BANK
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By
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Name:
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Title:
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Consent
and Amendment Signature
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MELLON
BANK, N.A.
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By
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Name:
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Title:
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Consent
and Amendment Signature
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FIRST
COMMERCIAL BANK, as a Bank
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By
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Name:
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Title:
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Consent
and Amendment Signature
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FIFTH
THIRD BANCORP
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By
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Name:
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Title:
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Consent
and Amendment Signature
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KBC
BANK N.V., as a Bank
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By
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Name:
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Title:
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Consent
and Amendment Signature
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FIRSTMERIT
BANK. N.A.
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By
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Name:
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Title:
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Consent
and Amendment Signature
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