AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
EX-10.1 2 exhibit101.htm EXHIBIT 10.1 Exhibit 10.1
Exhibit 10.1
EXECUTION VERSION
AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT, dated as of March 6, 2012 (this "Amendment No. 1"), by and among VALEANT PHARMACEUTICALS INTERNATIONAL, INC., a corporation continued under the federal laws of Canada ("Borrower"), Goldman Sachs Lending Partners LLC, as Administrative Agent ("Administrative Agent") and Collateral Agent under the Credit Agreement (as defined below), and the Requisite Lenders.
WITNESSETH:
WHEREAS, the Borrower, the Administrative Agent, the Guarantors party thereto from time to time and each lender from time to time party thereto (the "Lenders") have entered into a Third Amended and Restated Credit and Guaranty Agreement, dated as of February 13, 2012 (the "Credit Agreement") (capitalized terms not otherwise defined in this Amendment No. 1 have the same meanings as specified in the Credit Agreement);
WHEREAS, on the date hereof, the Borrower, the Administrative Agent and the Requisite Lenders (as defined in the Credit Agreement) desire to amend the Credit Agreement as described in this Amendment No. 1;
WHEREAS, pursuant to Section 10.5 of the Credit Agreement, the consent of the Requisite Lenders (as defined in the Credit Agreement) is required for the effectiveness of this Amendment No. 1; and
WHEREAS, the Administrative Agent, the Collateral Agent, the Borrower and the other Lenders signatory hereto are willing to so agree, subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and receipt of all of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.Amendment.
The Credit Agreement is hereby amended by:
(a) deleting the language of Section 5.1(a) and replacing it in the entirety with the following:
"Within 45 days after the end of each Fiscal Quarter of each Fiscal Year (other than the fourth Fiscal Quarter of any such Fiscal Year), commencing with the Fiscal Quarter ending September 30, 2011, the consolidated balance sheets of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of income and cash flows of Borrower and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal
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Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, commencing with the first Fiscal Quarter for which such corresponding figures are available, all in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto;"; and
(b) deleting from Schedule 5.15 Canadian Post-Closing Matters to the Credit Agreement the requirement that the Borrower deliver Share Certificates and associated transfer powers representing all of the outstanding shares of fX Life Sciences GmbH.
SECTION 2. Effectiveness. This Amendment No. 1 shall become effective on and as of the date (such date the "Effective Date") on which this Amendment No. 1 shall have been executed and delivered by (A) the Borrower, (B) Lenders constituting the Requisite Lenders under Section 10.5 of the Credit Agreement, and (C) the Administrative Agent.
SECTION 3. Amendment, Modification and Waiver.
This Amendment No. 1 may not be amended, modified or waived except in accordance with Section 10.5 of the Credit Agreement.
SECTION 4. Reference to and Effect on the Credit Agreement and the Credit Documents.
On and after the Effective Date, each reference in the Credit Agreement or any other Credit Document to "this Agreement," "hereunder," "hereof" or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended by this Amendment No. 1.
SECTION 5. Entire Agreement.
This Amendment No. 1, the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties hereto with respect to the subject matter hereof. Except as expressly set forth herein, this Amendment No. 1 shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any party under, the Credit Agreement, nor alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. 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 hereby and that this Amendment No. 1 is a Credit Document.
SECTION 6. Governing Law.
THIS AMENDMENT NO. 1 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. SECTION 10.15 OF THE CREDIT AGREEMENT IS HEREBY INCORPORATED BY REFERENCE INTO THIS AMENDMENT NO. 1 AND SHALL APPLY HERETO.
SECTION 7. Severability.
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In case any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 8. Counterparts.
This Amendment No. 1 may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart to this Amendment No. 1 by facsimile transmission or other electronic transmission shall be effective as delivery of a manually signed counterpart of this Amendment No. 1.
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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Amendment No. 1 as of the date first written above.
VALEANT PHARMACEUTICALS INTERNATIONAL, INC.
By: /s/ Rajiv De Silva
Name: Rajiv De Silva
Title: President & Chief Operating Officer
Name: Rajiv De Silva
Title: President & Chief Operating Officer
GOLDMAN SACHS LENDING PARTNERS LLC, individually as Administrative Agent and Collateral Agent
By: /s/ Douglas Tansey
Name: Douglas Tansey
Title: Authorized Signatory
Name: Douglas Tansey
Title: Authorized Signatory
GOLDMAN SACHS LENDING PARTNERS LLC, as a Lender
By: /s/ Michelle Latzoni
Name: Michelle Latzoni
Title: Authorized Signatory
Name: Michelle Latzoni
Title: Authorized Signatory
JPMorgan Chase Bank, N A Toronto branch,
as a Lender
as a Lender
By: /s/ Deborah Booth
Name: Deborah Booth
Title: Vice President
Name: Deborah Booth
Title: Vice President
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
BANK OF AMERICA, N.A.,
as a Lender
as a Lender
By: /s/ Robert LaPorte
Name: Robert LaPorte
Title: Vice President
Name: Robert LaPorte
Title: Vice President
Royal Bank of Canada,
as a Lender
as a Lender
By: /s/ Dean Sas
Name: Dean Sas
Title: Authorized Signatory
Name: Dean Sas
Title: Authorized Signatory
Export Development Canada,
as a Lender
as a Lender
By: /s/ Trevor Mulligan
Name: Trevor Mulligan
Title: Asset Mana
Name: Trevor Mulligan
Title: Asset Mana
By: /s/ Chris Wilson
Name: Chris Wilson
Title: Asset Manager
Name: Chris Wilson
Title: Asset Manager
DNB Bank ASA,
as a Lender
as a Lender
By: /s/ Thomas Tangen
Name: Thomas Tangen
Title: Senior Vice President
Name: Thomas Tangen
Title: Senior Vice President
By: /s/ Pal Boger
Name: Pal Boger
Title: Vice President
Name: Pal Boger
Title: Vice President
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
Morgan Stanley Bank, N.A.,
as a Lender
as a Lender
By: /s/ Alice Lee
Name: Alice Lee
Title: Authorized Signatory
Name: Alice Lee
Title: Authorized Signatory
SUNTRUST BANK,
as a Lender
as a Lender
By: /s/ Dana Dhaliwal
Name: Dana Dhaliwal
Title: Director
Name: Dana Dhaliwal
Title: Director
BARCLAYS BANK PLC,
as a Lender
as a Lender
By: /s/ Lisa Minigh
Name: Lisa Minigh
Title: Assistant Vice President
Name: Lisa Minigh
Title: Assistant Vice President
The Toronto Dominion Bank,
as a Lender
as a Lender
By: /s/ Nigel Sharpley
Name: Nigel Sharpley
Title: Senior Manager, TD Commercial Bank
Name: Nigel Sharpley
Title: Senior Manager, TD Commercial Bank
By: /s/ Damian Savelli
Name: Damian Savelli
Title: Credit Manager, TD Commercial Bank
Name: Damian Savelli
Title: Credit Manager, TD Commercial Bank
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
Canadian Imperial Bank of Commerce,
as a Lender
as a Lender
By: /s/ Jordan Spellman
Name: Jordan Spellman
Title: Director
Name: Jordan Spellman
Title: Director
By: /s/ Ben Fallico
Name: Ben Fallico
Title: Executive Director
Name: Ben Fallico
Title: Executive Director
HSBC Bank Canada,
as a Lender
as a Lender
By: /s/ Andrew Sclater
Name: Andrew Sclater
Title: Global Relationship Manager
Name: Andrew Sclater
Title: Global Relationship Manager
By: /s/ Amber Bansal
Name: Amber Bansal
Title: Vice President
Name: Amber Bansal
Title: Vice President
Mizuho Corporate Bank, Ltd.,
as a Lender
as a Lender
By: /s/ Bertram H. Tang
Name: Bertram H. Tang
Title: Authorized Signatory
Name: Bertram H. Tang
Title: Authorized Signatory
HSBC Bank USA, N.A.,
as a Lender
as a Lender
By: /s/ David Reading
Name: David Reading
Title: Vice President
Name: David Reading
Title: Vice President
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
ICICI Bank Canada,
as a Lender.
as a Lender.
By: /s/ Arup Ganguly
Name: Arupp Ganguly
Title: VP, Corporate Banking
Name: Arupp Ganguly
Title: VP, Corporate Banking
By: /s/ Arup Ganguly
Name: Sandeep Goel
Title: VP & Chief Risk Officer
Name: Sandeep Goel
Title: VP & Chief Risk Officer
APIDOS CDO V,
as a Lender
as a Lender
By: Its Investment Advisor Apidos Capital
Management, LLC
Management, LLC
By: /s/ Vincent Ingato
Name: Vincent Ingato
Title: Portfolio Manager
Name: Vincent Ingato
Title: Portfolio Manager
APIDOS CINCO CDO,
as a Lender
as a Lender
By: Its Investment Advisor Apidos Capital
Management, LLC
Management, LLC
By: /s/ Vincent Ingato
Name: Vincent Ingato
Title: Portfolio Manager
Name: Vincent Ingato
Title: Portfolio Manager
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
APIDOS CLO VIII,
as a Lender
as a Lender
By: Its Collateral Manager Apidos Capital
Management, LLC
Management, LLC
By: /s/ Vincent Ingato
Name: Vincent Ingato
Title: Portfolio Manager
Name: Vincent Ingato
Title: Portfolio Manager
SAN GABRIEL CLO I LTD,
as a Lender
as a Lender
By: Apidos Capital Management LLC
On behalf of Resource Capital Asset Management
(RCAM)
On behalf of Resource Capital Asset Management
(RCAM)
By: /s/ Vincent Ingato
Name: Vincent Ingato
Title: Portfolio Manager
Name: Vincent Ingato
Title: Portfolio Manager
SIERRA CLO II LTD,
as a Lender
as a Lender
By: Apidos Capital Management LLC
On behalf of Resource Capital Asset Management
(RCAM)
On behalf of Resource Capital Asset Management
(RCAM)
By: /s/ Vincent Ingato
Name: Vincent Ingato
Title: Portfolio Manager
Name: Vincent Ingato
Title: Portfolio Manager
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
SHASTA CLO I LTD,
as a Lender
as a Lender
By: Apidos Capital Management LLC
On behalf of Resource Capital Asset Management
(RCAM)
On behalf of Resource Capital Asset Management
(RCAM)
By: /s/ Vincent Ingato
Name: Vincent Ingato
Title: Portfolio Manager
Name: Vincent Ingato
Title: Portfolio Manager
Apollo Credit Senior Loan Fund, LP,
as a Lender
as a Lender
By: Apollo Credit Advisors II, LLC, its general partner
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Vice President
Name: Joe Moroney
Title: Vice President
Apollo / JH Loan Portfolio, L.P.,
as a Lender
as a Lender
By: Apollo Credit Management II, L.P., its investment partner
By: Apollo Credit Management II, LLC., its general partner
By: Apollo Credit Management II, LLC., its general partner
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Vice President
Name: Joe Moroney
Title: Vice President
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
Neptune Finance CCS, Ltd.,
as a Lender
as a Lender
By: Gulf Stream Asset Management LLC As Collateral Manager
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Vice President
Name: Joe Moroney
Title: Vice President
Gulf Stream - Sextant CLO 2007-1,Ltd.,
as a Lender
as a Lender
By: Gulf Stream Asset Management LLC As Collateral Manager
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Vice President
Name: Joe Moroney
Title: Vice President
Gulf Stream - Sextant CLO 2006-1,Ltd.,
as a Lender
as a Lender
By: Gulf Stream Asset Management LLC As Collateral Manager
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Vice President
Name: Joe Moroney
Title: Vice President
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
Gulf Stream – Rashinban CLO 2006-I, Ltd. ,
as a Lender
as a Lender
By: Gulf Stream Asset Management LLC
As Collateral Manager
As Collateral Manager
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Vice President
Name: Joe Moroney
Title: Vice President
Gulf Stream - Compass CLO 2007, Ltd.,
as a Lender
as a Lender
By: Gulf Stream Asset Management LLC
As Collateral Manager
As Collateral Manager
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Vice President
Name: Joe Moroney
Title: Vice President
Gulf Stream - Compass CLO 2005-II, Ltd.,
as a Lender
as a Lender
By: Gulf Stream Asset Management LLC As Collateral Manager
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Vice President
Name: Joe Moroney
Title: Vice President
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
Gulf Stream - Compass CLO 2005-I, Ltd.,
as a Lender
as a Lender
By: Gulf Stream Asset Management LLC As Collateral Manager
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Vice President
Name: Joe Moroney
Title: Vice President
ALM VI, Ltd.,
By: Apollo Credit Management (CLO), LLC, as Collateral Manager
By: Apollo Credit Management (CLO), LLC, as Collateral Manager
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Vice President
Name: Joe Moroney
Title: Vice President
Apollo Senior Floating Rate Fund Inc.,
as a Lender
as a Lender
By: Account 631203
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Vice President
Name: Joe Moroney
Title: Vice President
BLUE MOUNTAIN CREDIT ALTERNATIVES MASTER FUND L.P.
By: BLUEMOUNTAIN CAPITAL MANAGEMENT LLC,
Its Investment Advisor,
as a Lender
as a Lender
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
By: /s/ Michael Abatemarco
Name: Michael Abatemarco
Title: Associate
Name: Michael Abatemarco
Title: Associate
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
Cathay Bank,
as a Lender.
as a Lender.
By: /s/ Nancy A. Moore
Name: Nancy A. Moore
Title: Senior Vice President
Name: Nancy A. Moore
Title: Senior Vice President
COA Caerus CLO Ltd.,
as Lender
as Lender
By: FS COA Management LLC, as Portfolio Manager
By: /s/ David Nadeau
Name: David Nadeau
Title: Partner
Name: David Nadeau
Title: Partner
Credit Opportunity Associates II, L.P.,
as Lender
as Lender
By: FSW Partners, LLC as Investment Manager
By: /s/ David Nadeau
Name: David Nadeau
Title: Partner
Name: David Nadeau
Title: Partner
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
Deutsche Bank AG New York Branch
By: DB Services New Jersey, Inc.,
as a Lender
as a Lender
By: /s/ Christine LaMonaca
Name: Christine LaMonaca
Title: Assistant Vice President
Name: Christine LaMonaca
Title: Assistant Vice President
By: /s/ Deirdre Casario
Name: Deirdre Cesario
Title: Assistant Vice President
Name: Deirdre Cesario
Title: Assistant Vice President
Fraser Sullivan CLO VI Ltd.
By: FS COA Management, LLC, as Portfolio Manager
By: /s/ David Nadeau
Name: Christine LaMonaca
Title: Partner
Name: Christine LaMonaca
Title: Partner
Greywolf CLO I, Ltd
By: Greywolf Capital Management LP, its Investment Manager
By: /s/ Robert Miller
Name: Robert Miller
Title: Authorized Signatory
Name: Robert Miller
Title: Authorized Signatory
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
LeverageSource V S.A.R.L., as Lender
By: /s/ Joe Moroney
Name: Joe Moroney
Title: Class A Manager
Name: Joe Moroney
Title: Class A Manager
By: /s/ Laurent Ricci
Name: Laurent Ricci
Title: Class B Manager
Name: Laurent Ricci
Title: Class B Manager
ACE Tempest Reinsurance Ltd., as Lender
By: Oaktree Capital Management, L.P. Its: Investment Manager
By: /s/ Francis Giacalone
Name: Francis Giacalone
Title: Managing Director
Name: Francis Giacalone
Title: Managing Director
By: /s/ Desmund Shirazi
Name: Desmund Shirazi
Title: Managing Director
Name: Desmund Shirazi
Title: Managing Director
Arch Investment Holdings IV Ltd., as Lender
By: Oaktree Capital Management, L.P. Its: Investment Manager
By: /s/ Francoise Giacalone
Name: Francoise Giacalone
Title: Managing Director
Name: Francoise Giacalone
Title: Managing Director
By: /s/ Desmund Shirazi
Name: Desmund Shirazi
Title: Managing Director
Name: Desmund Shirazi
Title: Managing Director
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
The Public School Retirement System of Missouri, as Lender
By: Oaktree Capital Management, L.P. Its: Investment Manager
By: /s/ Francoise Giacalone
Name: Francoise Giacalone
Title: Managing Director
Name: Francoise Giacalone
Title: Managing Director
By: /s/ Desmund Shirazi
Name: Desmund Shirazi
Title: Managing Director
Name: Desmund Shirazi
Title: Managing Director
The Public Education Employee Retirement System of Missouri, as Lender
By: Oaktree Capital Management, L.P. Its: Investment Manager
By: /s/ Francoise Giacalone
Name: Francoise Giacalone
Title: Managing Director
Name: Francoise Giacalone
Title: Managing Director
By: /s/ Desmund Shirazi
Name: Desmund Shirazi
Title: Managing Director
Name: Desmund Shirazi
Title: Managing Director
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
Oaktree Senior Loan Fund, L.P., as Lender
By: Oaktree Senior Loan Fund GP, L.P. Its: General Partner
By: Oaktree Fund GP IIA, LLC Its: General Partner,
By: Oaktree Fund GP II, L.P. Its: Managing Director
By: /s/ Francoise Giacalone
Name: Francoise Giacalone
Title: Authorized Signatory
Name: Francoise Giacalone
Title: Authorized Signatory
By: /s/ Desmund Shirazi
Name: Desmund Shirazi
Title: Authorized Signatory
Name: Desmund Shirazi
Title: Authorized Signatory
PUTNAM FLOATING RATE INCOME FUND
By: /s/ Beth Mazor
Name: Beth Mazor
Title: V.P.
Name: Beth Mazor
Title: V.P.
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
RAYMOND JAMES BANK, N.A., as Lender
By: /s/ Kathy Bennett
Name: Kathy Bennett
Title: VP
Name: Kathy Bennett
Title: VP
Sumitomo Mitsui Banking Corporation, as a Lender
By: /s/ David W. Kee
Name: David W. Kee
Title: Managing Director
Name: David W. Kee
Title: Managing Director
Evergreen CBNA Loan Funding LLC, as a Lender
By: /s/ Malia Baynes
Name: Malia Baynes
Title: Attorney-In-Fact
Name: Malia Baynes
Title: Attorney-In-Fact
DOUBLE HAUL TRADING, LLC, as a Lender
By: Sun Trust Bank, its Manager
By: /s/ Douglas Weltz
Name: Douglas Weltz
Title: Vice President
Name: Douglas Weltz
Title: Vice President
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
Nash Point CLO
By: Sankaty Advisors LLC, as Collateral Manager
By: /s/ Andrew S. Viens
Name: Andrew S. Viens
Title: Sr. Vice President of Operations
Name: Andrew S. Viens
Title: Sr. Vice President of Operations
Qantas Superannuation Plan
By: Sankaty Advisors, LLC as Investment Manager
By: /s/ Andrew S. Viens
Name: Andrew S. Viens
Title: Sr. Vice President of Operations
Name: Andrew S. Viens
Title: Sr. Vice President of Operations
Race Point IV CLO, Ltd.
By: Sankaty Advisors, LLC as Collateral Manager
By: /s/ Andrew S. Viens
Name: Andrew S. Viens
Title: Sr. Vice President of Operations
Name: Andrew S. Viens
Title: Sr. Vice President of Operations
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]
WellPoint, Inc.
By: /s/ Andrew S. Viens
Name: Andrew S. Viens
Title: Sr. Vice President of Operations
Name: Andrew S. Viens
Title: Sr. Vice President of Operations
TETON FUNDING, LLC, as Lender
By: SunTrust Bank, its Manager
By: /s/ Douglas Weltz
Name: Douglas Weltz
Title: Vice President
Name: Douglas Weltz
Title: Vice President
J.P Morgan Whitefriars Inc., as Lender
By: Virginia R. Conway
Name: Virginia R. Conway
Title: Attorney-In-Fact
Name: Virginia R. Conway
Title: Attorney-In-Fact
FSC VII Loan Funding (CBNA) LLC, as a Lender
By: Citibank, N.A.
By: Paul Plank
Name: Paul Plank
Title: Director
Name: Paul Plank
Title: Director
[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Guaranty Agreement]