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EXHIBIT 10.33
AMENDMENT NO. 1 TO AMENDED AND RESTATED
REFINANCING CREDIT AGREEMENT
THIS AMENDMENT NO. 1 (this "AMENDMENT") is dated as of
November 16, 2000, and amends the Amended and Restated Refinancing Credit
Agreement, by and among WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
(formerly known as Westinghouse Air Brake Company) and THE GUARANTORS FROM TIME
TO TIME PARTY THERETO and THE BANKS FROM TIME TO TIME PARTY THERETO and ABN AMRO
BANK N.V., as bookrunner and co-syndication agent, THE CHASE MANHATTAN BANK, as
administrative agent, and THE BANK OF NEW YORK, as co-syndication agent, MELLON
BANK, N.A., as documentation agent, and CHASE MANHATTAN BANK USA, N.A.
(successor in interest to Chase Manhattan Bank Delaware), as an issuing bank,
dated as of November 19, 1999 (the "ORIGINAL CREDIT AGREEMENT").
BACKGROUND
The parties hereto desire to amend the Original Credit
Agreement to extend the Convertible Revolving Credit Expiration Date and modify
additional provisions of the Original Credit Agreement relating to pricing,
fees, and the calculation of financial covenants.
OPERATIVE PROVISIONS
NOW THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements herein contained, incorporating the
above-defined terms herein and intending to be legally bound hereby agree as
follows:
ARTICLE I
AMENDMENTS
1.01. Defined Terms; References. Terms not otherwise defined
in this Amendment shall have the respective meanings ascribed to them in the
Original Credit Agreement. Each reference to "hereof," "hereunder," "herein,"
and "hereby" and similar references contained in the Original Credit Agreement
and each reference to "this Agreement" and similar references contained in the
Original Credit Agreement shall, on and after the date hereof, refer to the
Original Credit Agreement as amended hereby.
1.02. Extension of Convertible Revolving Credit Expiration
Date. As of the date hereof, the definition of "Convertible Revolving Credit
Expiration Date" as set forth in Section 1.1 of the Original Credit Agreement
shall be deleted in its entirety and the following shall be inserted therefor:
"CONVERTIBLE REVOLVING CREDIT EXPIRATION DATE shall
mean, with respect to the Convertible Revolving Credit
Commitments, November 14, 2001, as such date may be extended
in accordance with the terms hereof, but in no event beyond
the Revolving Credit Expiration Date."
1.03. Pricing. As of the date hereof, the Pricing Grid
attached to the Original Credit Agreement as SCHEDULE 1.1(A) shall be deleted in
its entirety and the Pricing Grid attached hereto as SCHEDULE 1.1(A) shall be
inserted therefor.
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1.04. Cash Flow Definition. As of September 29, 2000, the
definition of "Cash Flow" as set forth in Section 1.1 of the Original Credit
Agreement is deleted in its entirety and the following is inserted therefor:
"CASH FLOW for any period of determination shall mean
(i) the sum of net income, depreciation, amortization, other
noncash charges to net income, interest expense (including the
interest component of payments made in connection with
capitalized leases, synthetic leases, and the like), income
tax expense, and the actual and direct costs and expenses of
and restructuring charges associated with the Merger incurred
by Borrower and its Subsidiaries in 1999 and 2000 up to an
amount equal to $47,060,000 for Borrower's fiscal year ending
in 1999 and up to an amount equal to $25,000,000 for
Borrower's fiscal year ending in 2000 minus (ii) noncash
credits to net income and extraordinary income, in each case
of the Borrower and its Subsidiaries for such period
determined and consolidated in accordance with GAAP."
1.05. Maximum Debt to Cash Flow Covenant. As of September 29,
2000, Section 8.2.15 of the Original Credit Agreement is deleted in its entirety
and the following is inserted therefor:
"8.2.15. MAXIMUM DEBT TO CASH FLOW.
The Loan Parties shall not permit the ratio of
Adjusted Consolidated Total Indebtedness to Cash Flow,
calculated as of the end of each fiscal quarter for the
immediately preceding four (4) fiscal quarters then ended, to
exceed 3.75 to 1.0. `Adjusted Consolidated Total Indebtedness'
shall mean at any time the Consolidated Total Indebtedness at
such time less the unencumbered cash of the Borrower and its
Subsidiaries at such time on a consolidated basis and without
duplication of amounts."
1.06. Commitments. As of the date hereof, SCHEDULE 1.1(B) to
the Original Credit Agreement is hereby deleted and replaced in its entirety
with SCHEDULE 1.1(B) hereto. For the avoidance of doubt and notwithstanding any
provision of the Original Credit Agreement to the contrary, the Convertible
Revolving Credit Commitment of each Bank for whom the "Amount of Commitment for
Convertible Revolving Credit Loans" is established on Schedule 1.1(B) to this
Amendment at zero, "$0.00," or the like is hereby terminated and each such Bank
shall have no obligation whatsoever to make any Convertible Revolving Credit
Loan under the Original Credit Agreement as modified hereby.
1.07. Name Changes, Mergers. Each of the Loan Parties
acknowledges, represents, warrants, and covenants as follows:
(a) As of December 23, 1999, Westinghouse Air Brake Company
changed its name to Westinghouse Air Brake Technologies
Corporation; for all purposes of the Original Credit Agreement
and the other Loan Documents, as amended hereby, Westinghouse
Air Brake Company and Westinghouse Air Brake Technologies
Corporation are one and the same, and all references in each
of the Loan Documents to Westinghouse Air Brake Company are
and shall be deemed to be references to Westinghouse Air Brake
Technologies Corporation;
(b) As of June 30, 2000, Boise Locomotive Company changed its
name to MotivePower, Inc.; for all purposes of the Original
Credit Agreement and the other Loan Documents, as amended
hereby, Boise Locomotive Company and MotivePower, Inc., are
one and the same, and all references in each of the Loan
Documents to Boise Locomotive Company are and shall be deemed
to be references to MotivePower, Inc.;
(c) Pursuant to an Agreement and Plan of Merger among Young
Radiator Company and MotivePower USA, Inc., and Motor Coils
Manufacturing Company, dated as of June 30,
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2000, MotivePower USA, Inc., and Motor Coils Manufacturing
Company merged with and into Young Radiator Company which was
the surviving company of the merger and which changed its name
to Young Touchstone Company; for all purposes of the Original
Credit Agreement and the other Loan Documents, as amended
hereby, Young Radiator Company, MotivePower USA, Inc., Motor
Coils Manufacturing Company, and Young Touchstone Company are
one and the same, and all references in each of the Loan
Documents to any of Young Radiator Company, MotivePower USA,
Inc., or Motor Coils Manufacturing Company are and shall be
deemed to be references to Young Touchstone Company, and Young
Touchstone Company hereby assumes all obligations of Young
Radiator Company, MotivePower USA, Inc., and Motor Coils
Manufacturing Company under the Loan Documents, as amended
hereby;
(d) As of June 30, 2000, Gateway Rebuild Company changed its
name to WABTEC Engine Systems Company; for all purposes of the
Original Credit Agreement and the other Loan Documents, as
amended hereby, Gateway Rebuild Company and WABTEC Engine
Systems Company are one and the same, and all references in
each of the Loan Documents to Gateway Rebuild Company are and
shall be deemed to be references to WABTEC Engine Systems
Company;
(e) On or about June 30, 2000, Microphor Company merged with
and into Borrower which was the surviving company of the
merger; on or about June 30, 2000, Technical Service &
Marketing L.L.C. combined with the Borrower which was the
surviving company; and
(f) On or about June 30, 2000, RFI Properties, Inc., merged
with and into MotivePower Investments Limited which was the
surviving company of the merger and which changed its name to
WABTEC Holding Corp.; for all purposes of the Original Credit
Agreement and the other Loan Documents, as amended hereby, RFI
Properties, Inc., MotivePower Investments Limited, WABTEC
Holding Corp., and WABTEC Holding Corporation are one and the
same, and all references in each of the Loan Documents to RFI
Properties, Inc. or MotivePower Investments Limited are and
shall be deemed to be references to WABTEC Holding Corp., and
WABTEC Holding Corp. hereby assumes all obligations of RFI
Properties, Inc., and MotivePower Investments Limited under
the Loan Documents, as amended hereby.
1.08. Renewal Fees. On or before November 16, 2000, and as a
condition to the effectiveness of this Amendment, Borrower shall pay in
immediately available funds to each Bank an amount equal to one tenth of one
percent (0.10% or 10 basis points) of the amount of such Bank's Commitment for
Convertible Revolving Credit Loans as set forth on SCHEDULE 1.1(B) hereto (which
Schedule, pursuant to Section 1.06 hereof, replaces SCHEDULE 1.1(B) to the
Original Credit Agreement).
ARTICLE II
REPRESENTATIONS AND WARRANTIES
As of the date hereof, the Loan Parties, jointly and
severally, represent and warrant to the Agent and each of the Banks as follows:
2.01. The execution and delivery by the Loan Parties of this
Amendment, the consummation by the Loan Parties of the transactions contemplated
by the Original Credit Agreement as amended hereby, and the performance by each
Loan Party of its respective obligations hereunder and thereunder have been duly
authorized by all necessary corporate proceedings, if any, on the part of each
Loan Party. On the date of Borrower's execution hereof, there are no set-offs,
claims, defenses, counterclaims, causes of action, or deductions of any nature
against any of the Obligations.
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2.02. This Amendment has been duly and validly executed and
delivered by each Loan Party and constitutes, and the Original Credit Agreement
as amended hereby constitutes, the legal, valid and binding obligations of each
Loan Party enforceable in accordance with the terms hereof and thereof, except
as the enforceability of this Amendment or the Original Loan Agreement as
amended hereby may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
2.03. Neither the execution and delivery of this Amendment,
nor consummation of the transactions contemplated hereby or by the Original
Credit Agreement as amended hereby, nor compliance with the terms and provisions
hereof or thereof will (a) violate any Law, (b) conflict with or result in a
breach of or a default under the articles or certificate of incorporation or
bylaws of any Loan Party or any material agreement or instrument to which any
Loan Party is a party or by which any Loan Party or any of their respective
properties (now owned or hereafter acquired) may be subject or bound, (c)
require any consent or approval of any Person under the terms of any such
agreement or instrument, (d) result in the creation or imposition of any Lien
upon any property (now owned or hereafter acquired) of any Loan Party or (e)
require any authorization, consent, approval, license, permit, exemption or
other action by, or any registration, qualification, designation, declaration or
filing with, any Official Body.
2.04. After giving effect to the amendments made herein: (i)
no Event of Default under and as defined in the Original Credit Agreement has
occurred and is continuing, and (ii) the representations and warranties of each
of Borrower and the other Loan Parties contained in the Credit Agreement and the
other Loan Documents are true and correct on and as of the date hereof with the
same force and effect as though made on such date, except to the extent that any
such representation or warranty expressly relates solely to a previous date.
ARTICLE III
EFFECT, EFFECTIVENESS, CONSENT OF GUARANTORS
3.01. Effectiveness. This Amendment shall become effective in
accordance with its terms on the date that Agent shall have received from each
of the Borrower, the Loan Parties, and the Banks a counterpart hereof signed by
such party or facsimile or other written confirmation (in form satisfactory to
Agent) that such party has signed a counterpart hereof.
3.02. Amendment. The Credit Agreement is hereby amended in
accordance with the terms hereof, and this Amendment and the Credit Agreement
shall hereafter be one agreement and any reference to the Credit Agreement in
any document, instrument, or agreement shall hereafter mean and include the
Credit Agreement as amended hereby. In the event of irreconcilable inconsistency
between the terms or provisions hereof and the terms or provisions of the Credit
Agreement, the terms and provisions hereof shall control.
3.03. Joinder of Guarantors. Each of the Guarantors hereby
joins in this Amendment to evidence its consent hereto, and each Guarantor
hereby reaffirms its obligations set forth in the Credit Agreement, as hereby
amended, and in each Guaranty Agreement and each other Loan Document given by it
in connection therewith.
ARTICLE IV
MISCELLANEOUS
4.01. Original Credit Agreement. Except as specifically
amended by the provisions hereof, the Original Credit Agreement and all other
Loan Documents shall remain in full force and effect and are hereby ratified and
confirmed by the parties hereto.
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4.02. Counterparts, Telecopy Signatures. This Amendment may be
signed in any number of counterparts each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument; and,
delivery of executed signature pages hereof by telecopy transmission from one
party to another shall constitute effective and binding execution and delivery
respectively of this Amendment by such party.
4.03. Governing Law. This Amendment shall be governed by and
construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania without regard to its conflict of laws principles.
4.04. Expenses. The Loan Parties agree, jointly and severally,
to reimburse the Agent for its reasonable out-of-pocket expenses arising in
connection with the negotiation, preparation and execution of this Amendment,
including the reasonable fees and expenses of Buchanan Ingersoll PC, counsel for
the Agent.
4.05. Severability. If any provision of this Amendment, or the
application thereof to any party hereto, shall be held invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provisions or
applications of this Amendment which can be given effect without the invalid and
unenforceable provision or application, and to this end the parties hereto agree
that the provisions of this Amendment are and shall be severable.
4.06. Banks' Consent. Each Bank, by its execution hereof,
hereby consents to this Amendment pursuant Section 11.1 of the Credit Agreement.
4.05. Return of Convertible Revolving Credit Notes by
Non-Agreeing Banks. Upon payment by Borrower, in accordance with the terms of
the Credit Agreement, of all amounts outstanding under each Convertible
Revolving Credit Note held by a Non-Agreeing Bank (defined at Section 3.4.1(c)
of the Credit Agreement), each such Bank shall, as soon as practicable, return
to Borrower such Bank's Convertible Revolving Credit Note; or, in the event such
note has been lost or destroyed, such Bank shall evidence to the Borrower, in a
manner reasonably satisfactory to the Borrower, such Bank's cancellation of such
note.
IN WITNESS WHEREOF, the parties hereto, by their officers duly
authorized, have executed and delivered this Amendment as of the date first
above written.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE 1 OF 21 OF AMENDMENT]
BORROWER:
WESTINGHOUSE AIR BRAKE
TECHNOLOGIES CORPORATION
By: /s/ Alvaro Garcia-Tunon (SEAL)
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Name: Alvaro Garcia-Tunon
Title: Sr. Vice President -
Finance
GUARANTORS:
RAILROAD FRICTION PRODUCTS
CORPORATION; VAPOR CORPORATION;
MP INTERNATIONAL I, INC.; MP
INTERNATIONAL II, INC.; MOTIVEPOWER
CANADA CORPORATION; WABTEC
DISTRIBUTION COMPANY;
MOTIVEPOWER, INC. (formerly known as
Boise Locomotive Company); YOUNG
TOUCHSTONE COMPANY (formerly known
as Young Radiator Company and
successor by merger to MotivePower
USA, Inc., and Motor Coils
Manufacturing Company); WABTEC
ENGINE SYSTEMS COMPANY (formerly
known was Gateway Rebuild Company);
WABTEC HOLDING CORP. (formerly known
as MotivePower Investments Limited
and successor by merger to RFI
Properties, Inc.); WABTEC
CORPORATION
By: /s/ Alvaro Garcia-Tunon (SEAL)
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Name: Alvaro Garcia-Tunon
Title: Vice President of each of
the above listed companies
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[SIGNATURE PAGE 2 OF 21 OF AMENDMENT]
BANKS:
ABN AMRO BANK N.V., individually and
and Co-Syndication Agent
as Bookrunner
By: /s/ David J. Mahanes
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Name: David J. Mahanes
Title: Group Vice President &
Director
By: /s/ Promila Anand
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Name: Promila Anand
Title: Vice President and
Director
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[SIGNATURE PAGE 3 OF 21 OF AMENDMENT]
MELLON BANK, N.A., individually and
as Documentation Agent
By: /s/ Mark F. Johnston
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Name: Mark F. Johnston
Title: VP
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[SIGNATURE PAGE 4 OF 21 OF AMENDMENT]
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent
By: /s/ John Malone
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Name: John Malone
Title: Vice President
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[SIGNATURE PAGE 5 OF 21 OF AMENDMENT]
NATIONAL CITY BANK OF PENNSYLVANIA
By: /s/ Lori B. Shure
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Name: Lori B. Shure
Title: Vice President
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[SIGNATURE PAGE 6 OF 21 OF AMENDMENT]
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Bruce G. Shearer
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Name: Bruce G. Shearer
Title: Vice President
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[SIGNATURE PAGE 7 OF 21 OF AMENDMENT]
FLEET NATIONAL BANK (formerly
BankBoston, N.A.)
By: /s/ Mark Fawcett
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Name: Mark Fawcett
Title: Director
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[SIGNATURE PAGE 8 OF 21 OF AMENDMENT]
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
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[SIGNATURE PAGE 9 OF 21 OF AMENDMENT]
THE BANK OF NEW YORK, individually
and as Co-Syndication Agent
By: /s/ Walter C. Parelli
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Name: Walter C. Parelli
Title: Vice President
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[SIGNATURE PAGE 10 OF 21 OF AMENDMENT]
BANK ONE MICHIGAN
By: /s/ William J. Mccaffrey
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Name: William J. McCaffrey
Title: First Vice President
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[SIGNATURE PAGE 11 OF 21 OF AMENDMENT]
FIRST UNION NATIONAL BANK
By: /s/ W. Gareth Horan
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Name: W. Gareth Horan
Title: Vice President
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[SIGNATURE PAGE 12 OF 21 OF AMENDMENT]
DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK AG
By: /s/ W. D. Casey
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Name: William D. Casey
Title: Vice President
By: /s/ Richard W. Wilbert
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Name: Richard W. Wilbert
Title: Vice President
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[SIGNATURE PAGE 13 OF 21 OF AMENDMENT]
THE BANK OF NOVA SCOTIA
By: /s/ M. D. Smith
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Name: M.D. Smith
Title: Agent Operations
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[SIGNATURE PAGE 14 OF 21 OF AMENDMENT]
BANK OF TOKYO-MITSUBISHI TRUST CO.
By: /s/ Heather Zimmermann
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Name: Heather Zimmermann
Title: Vice President
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[SIGNATURE PAGE 15 OF 21 OF AMENDMENT]
CREDIT AGRICOLE INDOSUEZ
By: /s/ Sarah U. Johnston
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Name: Sarah U. Johnston
Title: Vice President
Senior Relationship
Manager
By: /s/ Raymond A. Falkenberg
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Name: Raymond A. Falkenberg
Title: Vice President
Senior Relationship
Manager
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[SIGNATURE PAGE 16 OF 21 OF AMENDMENT]
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Scott R. Chappelka
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Name: Scott R. Chappelka
Title: Vice President
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[SIGNATURE PAGE 17 OF 21 OF AMENDMENT]
CREDIT SUISSE FIRST BOSTON
By: /s/ Bill O'Daly
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Name: Bill O'Daly
Title: Vice President
By: /s/ Kristin Lepri
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Name: Kristen Lepri
Title: Associate
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[SIGNATURE PAGE 18 OF 21 OF AMENDMENT]
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Maureen Carson
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Name: Maureen Carson
Title: Account Officer
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[SIGNATURE PAGE 19 OF 21 OF AMENDMENT]
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ Christopher Kania
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Name: Christopher Kania
Title: Vice President
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[SIGNATURE PAGE 20 OF 21 OF AMENDMENT]
SUNTRUST BANK
By:
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Name:
Title:
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[SIGNATURE PAGE 21 OF 21 OF AMENDMENT]
ISSUING BANK:
CHASE MANHATTAN BANK USA, N.A.
(successor in interest to Chase
Manhattan Bank Delaware)
By: /s/ Michael P. Handago
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Name: Michael P. Handago
Title: Vice President