Joinder Agreement - Valeant Pharmaceuticals International Inc. and Goldman Sachs Lending Partners LLC
1.
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New Revolving Loan Commitments. The New Revolving Loan Commitments established under this Joinder Agreement shall have identical terms to the Revolving Loan Commitments in existence under the Credit Agreement prior to the date hereof (the "New Revolving Loan Commitment Effective Date"). The New Revolving Loan Commitments and New Revolving Loans made pursuant thereto shall be subject to the provisions of the Credit Agreement and the other Credit Documents, and shall constitute "Revolving Commitments" and "Revolving Loans", respectively, thereunder.
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2.
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Closing Fee. Borrower agrees to pay on the date hereof to Administrative Agent, for the account of each New Revolving Loan Lender party to this Agreement, as fee compensation for the commitment of such New Revolving Loan Lender's New Revolving Loan Commitments, a closing fee in an amount equal to 1.00% of the aggregate principal amount of such New Revolving Loan Lender's New Revolving Loan Commitments as of the date hereof.
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3.
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New Lenders. Each New Revolving Loan Lender (other than any New Revolving Loan Lender that, immediately prior to the execution of this Agreement, is a "Lender" under the Credit Agreement) acknowledges and agrees that upon its execution of this Agreement its New Revolving Loan Commitments shall be effective and that such New Revolving Loan Lender shall become a "Lender" under, and for all purposes of, the Credit Agreement and the other Credit Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.
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4.
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Borrower's Certifications. By its execution of this Agreement, the undersigned officer, to the best of his or her knowledge, and Borrower hereby certify that:
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i.
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The representations and warranties contained in the Credit Agreement and the other Credit Documents are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date;
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ii.
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No event has occurred and is continuing or would result from the consummation of the transactions contemplated hereby that would constitute a Default or an Event of Default; and
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iii.
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Borrower has performed in all material respects all agreements and satisfied all conditions which the Credit Agreement provides shall be performed or satisfied by it on or before the date hereof in connection with the transactions contemplated by this Agreement.
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5.
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Borrower Covenants. By its execution of this Agreement, Borrower hereby covenants that:
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i.
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Borrower shall deliver or cause to be delivered the following legal opinions and documents: originally executed copies of the favorable written opinions of (a) Skadden, Arps, Slate, Meagher & Flom LLP, U.S. counsel to the Credit Parties,
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ii.
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Set forth on the attached Officers' Certificate are the calculations (in reasonable detail) demonstrating compliance, on a Pro Forma Basis after giving effect to the New Revolving Loan Commitments, with the financial tests described in Section 6.7 of the Credit Agreement as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Revolving Loan Commitments.
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6.
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Eligible Assignee. By its execution of this Agreement, each New Revolving Loan Lender (other than any New Revolving Loan Lender that, immediately prior to the execution of this Agreement, is a "Lender" under the Credit Agreement) represents and warrants that it is an Eligible Assignee.
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7.
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Notice. For purposes of the Credit Agreement, the initial notice address of each New Revolving Loan Lender shall be as set forth below its signature below.
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8.
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Non-U.S. Lenders. For each New Revolving Loan Lender that is a Non-U.S. Lender, delivered herewith to Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such New Revolving Loan Lender may be required to deliver to Administrative Agent pursuant to subsection 2.20(d) of the Credit Agreement.
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9.
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Recordation of the New Loans. Upon execution and delivery hereof, Administrative Agent will record the New Revolving Loan Commitments made by New Revolving Loan Lenders pursuant hereto in the Register.
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10.
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Reaffirmation.
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i.
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Each Credit Party hereby expressly acknowledges the terms of this Agreement and reaffirms, as of the date hereof, the covenants and agreements contained in each Credit Document to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Agreement and the transactions contemplated hereby.
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ii.
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Each Credit Party, by its signature below, hereby affirms and confirms (a) its obligations under each of the Credit Documents to which it is a party, and (b) the pledge of and/or grant of a security interest or hypothec in its assets as Collateral to secure such Obligations, all as provided in the Collateral Documents as originally executed, and acknowledges and agrees that such guarantee, pledge and/or grant continue in full force and effect in respect of, and to secure, such Obligations under the Credit Agreement and the other Credit Documents.
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iii.
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Each Credit Party acknowledges and agrees that each of the Credit Documents in existence as of the date hereof shall be henceforth read and construed in
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11.
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Amendment, Modification and Waiver. This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.
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12.
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Entire Agreement. This Agreement, the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof. It is understood and agreed that each reference in each Credit Document to the Credit Agreement, whether direct or indirect, shall hereafter be deemed to be a reference to the Credit Agreement as amended and supplemented hereby and that this Agreement is a Credit Document.
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13.
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GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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14.
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Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
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15.
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Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.
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By:
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/s/ Laura Fogarty
Name: Laura Fogarty Title: Vice President |
By:
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/s/ Aik Lim Kok
Name: Aik Lim Kok Title: Assistant General Manager |
By:
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/s/ Dana Dhaliwal
Name: Dana Dhaliwal Title: Director |
By:
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/s/ Robert LaPorte
Name: Robert LaPorte Title: Vice President |
By:
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/s/ Kelly Chin
Name: Kelly Chin Title: Authorized Signatory |
By:
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/s/ Jeremy Hazan
Name: Jeremy Hazan Title: Director |
By:
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/s/ James Rhee
Name: James Rhee Title: Managing Director |
By:
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/s/ Christina Brennan
Name: Christina Brennan Title: Associate |
By:
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/s/ Thomas Tangen
Name: Thomas Tangen Title: Senior Vice President |
By:
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/s/ Geshu Sugandh
Name: Geshu Sugandh Title: Vice President |
By:
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/s/ Michael Tschida
Name: Michael Tschida Title: Vice President |
By:
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/s/ Andrew Sclater
Name: Andrew Sclater Title: Global Relationship Manager, Corporate Banking |
By:
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/s/ Ambar Bansal
Name: Ambar Bansal Title: Vice President, Regional Head of Corporate HSBC Bank of Canada |
By:
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/s/ Arturo Polisena
Name: Arturo Polisena Title: Senior Associate |
By:
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/s/ Janine Dopson
Name: Janine Dopson Title: Financing Manager |
By:
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/s/ Dean Sas
Name: Dean Sas Title: Authorized Signatory |
By:
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/s/ Michael N. Tam
Name: Michael N. Tam Title: Senior Vice President |
By:
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/s/ Scott Rogers
Name: Scott Rogers Title: Associate VP, TD Commercial Bank |
By:
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/s/ Nigel Sharpley
Name: Nigel Sharpley Title: Senior Manager, TD Commercial Bank |
Signed by
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Valeant Holdco 2 Pty Ltd (ACN 154 341 367)
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as Guarantor
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in accordance with section 127 of the Corporations Act 2001 by two directors:
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/s/ Robert Chai-Onn
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/s/ Rajiv De Silva
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Signature of director
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Signature of director
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Robert Chai-Onn
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Rajiv De Silva
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Name of director (please print)
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Name of director (please print)
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Signed by
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Wirra Holdings Pty Limited (ACN 122 216 577)
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as Guarantor
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in accordance with section 127 of the Corporations Act 2001 by two directors:
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/s/ Robert Chai-Onn
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/s/ Howard B. Schiller
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Signature of director
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Signature of director
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Robert Chai-Onn
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Howard B. Schiller
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Name of director (please print)
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Name of director (please print)
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Signed by
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Wirra Operations Pty Limited (ACN 122 250 088)
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as Guarantor
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in accordance with section 127 of the Corporations Act 2001 by two directors:
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/s/ Robert Chai-Onn
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/s/ Howard B. Schiller
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Signature of director
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Signature of director
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Robert Chai-Onn
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Howard B. Schiller
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Name of director (please print)
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Name of director (please print)
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Signed by
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iNova Pharmaceuticals (Australia) Pty Limited (ACN 000 222 408)
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as Guarantor
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in accordance with section 127 of the Corporations Act 2001 by two directors:
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/s/ Robert Chai-Onn
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/s/ Howard B. Schiller
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Signature of director
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Signature of director
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Robert Chai-Onn
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Howard B. Schiller
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Name of director (please print)
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Name of director (please print)
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Signed by
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iNova Sub Pty Limited (ACN 134 398 815)
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as Guarantor
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in accordance with section 127 of the Corporations Act 2001 by two directors:
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/s/ Robert Chai-Onn
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/s/ Howard B. Schiller
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Signature of director
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Signature of director
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Robert Chai-Onn
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Howard B. Schiller
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Name of director (please print)
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Name of director (please print)
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Signed by
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Wirra IP Pty Limited (ACN 122 536 350)
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as Guarantor
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in accordance with section 127 of the Corporations Act 2001 by two directors:
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/s/ Robert Chai-Onn
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/s/ Howard B. Schiller
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Signature of director
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Signature of director
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Robert Chai-Onn
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Howard B. Schiller
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Name of director (please print)
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Name of director (please print)
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Name of Lender
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Type of Commitment
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Amount
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CITIBANK, N.A.
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New Revolving Loan Commitment
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$35,000,000
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DBS BANK LTD., LOS ANGELES AGENCY
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New Revolving Loan Commitment
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$20,000,000
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SUNTRUST BANK
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New Revolving Loan Commitment
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$18,587,500
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BANK OF AMERICA, N.A.
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New Revolving Loan Commitment
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$16,250,000
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GOLDMAN SACHS LENDING PARTNERS LLC
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New Revolving Loan Commitment
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$10,437,500
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MORGAN STANLEY BANK, N.A.
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New Revolving Loan Commitment
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$10,062,500
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BARCLAYS BANK PLC
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New Revolving Loan Commitment
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$10,000,000
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THE BANK OF NOVA SCOTIA
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New Revolving Loan Commitment
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$9,375,000
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DNB BANK ASA (F/K/A DNB NOR BANK ASA)
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New Revolving Loan Commitment
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$9,375,000
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UNION BANK, N.A.
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New Revolving Loan Commitment
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$6,562,500
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HSBC BANK CANADA
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New Revolving Loan Commitment
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$6,200,000
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EXPORT DEVELOPMENT CANADA
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New Revolving Loan Commitment
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$5,937,500
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ROYAL BANK OF CANADA
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New Revolving Loan Commitment
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$5,937,500
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J.P. MORGAN CHASE BANK, N.A., TORONTO BRANCH
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New Revolving Loan Commitment
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$5,900,000
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THE TORONTO-DOMINION BANK
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New Revolving Loan Commitment
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$5,375,000
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Total: $175,000,000
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