Exhibit 10.13
[ON THE LETTERHEAD OF X.X. XXXXXX EUROPE LIMITED]
Date: 8 March 2002
To: NTL (Delaware), Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX 00000
U.S.A.
NTL Cablecom Holding GmbH
c/o ATAG Ernst & Young AG
Xxxxxxxxxxxxx 0
0000 Xxx
Xxxxxxxxxxx
Cablecom GmbH
Xxxxxxxxxxxxxxx 00
0000 Xxxxxxxxxx
Xxxxxxxxxxx
The Borrowers and the Guarantors (each as defined in the Credit
Agreement (as defined below))
CREDIT AGREEMENT DATED 28 MARCH 2000 ORIGINALLY MADE BETWEEN NTL INCORPORATED
(NOW KNOWN AS NTL (DELAWARE), INC.) AS PARENT, NTL CABLECOM HOLDING GMBH AS
SHAREHOLDER, CABLECOM (OSTSCHWEIZ) AG (NOW KNOWN AS CABLECOM GMBH) AS PRINCIPAL
BORROWER, THE PARTIES NAMED THEREIN AS ORIGINAL BORROWERS, THE PARTIES NAMED
THEREIN AS ORIGINAL GUARANTORS AND OTHERS, AS AMENDED PURSUANT TO AN AMENDMENT
AGREEMENT DATED 16 MAY 2000 AND AS FURTHER AMENDED, NOVATED, VARIED OR
SUPPLEMENTED FROM TIME TO TIME (THE "CREDIT AGREEMENT")
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Terms defined in the Credit Agreement shall, unless otherwise defined
herein, bear the same meaning in this letter and in this letter:
"CO-ORDINATORS" means the joint co-ordinators as defined in a
Confirmation of Terms of Appointment letter agreement dated 7 March
2002;
"NTL GROUP NOTES" means the Parent Notes and any other bonds, notes or
similar public debt instruments issued in the domestic or international
capital markets by any other member of the NTL Inc. Group;
"PARENT NOTES" means any bonds, notes or similar public debt
instruments issued by the Parent in the domestic or international
capital markets and outstanding at the date of this letter and the
5.75% convertible subordinated notes due 2011 issued by the Parent;
"RELEVANT EVENTS OF DEFAULT" means the Events of Default at Clauses
23.6 (Cross Default), 23.7 (Insolvency and Rescheduling) and 23.8
(Winding Up) of the Credit Agreement;
"SENIOR BANK CREDIT AGREEMENT" means the credit agreement dated 30 May
2000 originally made between NTL Communications Limited as parent, NTL
Business Limited as original borrower, the parties named therein as
guarantors, NTL Communications Corporation as NTL CC and others, as
amended and restated pursuant to a restatement amendment agreement
dated 26 September 2001 and as further amended, novated, varied or
supplemented from time to time prior to the date hereof;
"STEERING COMMITTEE" means the steering committee as set out in a
Confirmation of Terms of Appointment letter agreement dated 7 March
2002; and
"WORKING CAPITAL CREDIT AGREEMENT" means the credit agreement dated 30
May 2000 originally made between NTL Communications Corp. as parent,
NTL (UK) Group, Inc. as intermediate parent, NTL Communications Limited
as borrower and others, as amended, novated, varied, or supplemented
from time to time prior to the date hereof.
1.2 INTERPRETATION
Clause 1.2 (Interpretation) of the Credit Agreement shall apply to this
letter as if set out in full. Headings in this letter shall not affect
its interpretation.
2. THE PROPOSED RECAPITALISATION
The Parent has informed the Agent that (a) it wishes to pursue a
proposed restructuring, readjustment, rescheduling and/or
reorganisation of the Parent (the "PROPOSED RECAPITALISATION") (in
particular in respect of its debts and other obligations) and (b) in
connection with the Proposed Recapitalisation it intends to commence
and progress negotiations (the "PARENT NEGOTIATIONS") with one or more
of the holders (the "PARENT NOTEHOLDERS") of the Parent Notes and/or
their representatives. The Parent has requested the Banks to:
2.1 consent to the Parent taking all steps and corporate and other
action to take forward the Proposed Recapitalisation
(including, without limitation, commencing and progressing the
Parent Negotiations) (the "PROPOSED STEPS"); and
2.2 agree that any Event of Default (including any Relevant Event
of Default) or Potential Event of Default (including in
respect of any Relevant Event of Default) which will or may
occur solely (directly or indirectly) as a result of the
Proposed
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Steps will not constitute an Event of Default or, as the case
may be, Potential Event of Default.
3. CONSENT
Following the receipt of Instructing Group consent, the Agent, on
behalf of the Banks: (a) hereby consents to the Parent taking the
Proposed Steps; and (b) hereby agrees that any Event of Default
(including any Relevant Event of Default) or Potential Event of Default
(including in respect of any Relevant Event of Default) which will or
may occur solely (directly or indirectly) as a result of the Proposed
Steps will not constitute an Event of Default or, as the case may be,
Potential Event of Default (the "CONSENT") PROVIDED THAT:
3.1 the Consent shall not be effective until the date upon which:
3.1.1 the agent under the Senior Bank Credit Agreement has entered
into a consent letter (upon the instructions of an Instructing
Group (as defined in the Senior Bank Credit Agreement)) with
NTL Communications Corporation (acting on behalf of the
Obligors (as defined in the Senior Bank Credit Agreement)) on
substantially the same terms as this consent letter; and
3.1.2 the agent under the Working Capital Credit Agreement has
entered into a consent letter (upon the instructions of an
Instructing Group (as defined in the Working Capital Credit
Agreement)) with Cablecom GmbH (acting on behalf of the
Obligors (as defined in the Working Capital Credit Agreement))
on substantially the same terms as this letter;
3.2 the Proposed Steps shall not include:
3.2.1 any exchange or similar offer to the Parent Noteholders or the
holders of any other NTL Group Notes (together with the Parent
Noteholders, the "NOTEHOLDERS") which exchange or similar
offer has been, or is required to be, filed with an
appropriate governmental agency or body (such as the U.S.
Securities and Exchange Commission) or is exempted from any
such filing but which is capable of acceptance by such
Noteholders (or any of them) (whether or not subject to
satisfaction of conditions);
3.2.2 any legally binding agreement for, or any offer to Noteholders
(or any of them) which is capable of acceptance (whether or
not subject to the satisfaction of conditions) in respect of,
the prepayment (in whole or in part) of amounts outstanding
under the NTL Group Notes (or any of them) or the granting of
any security, guarantee or other credit support in respect of
amounts outstanding under the NTL Group Notes (or any of them)
PROVIDED THAT this paragraph 3.2.2 shall not prohibit the
granting of any security, guarantee or other credit support by
Diamond Cable Communications Limited, Diamond Holdings Limited
or NTL (Triangle) LLC or any of their respective subsidiaries
where such security is required to be granted pursuant to the
terms (as at the date hereof) of the indentures constituting
the NTL Group Notes issued by Diamond
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Cable Communications Limited, Diamond Holdings Limited or, as
the case may be, NTL Triangle LLC; or
3.2.3 the entry by any member of the NTL Inc. Group into any legally
binding agreement with the Noteholders (or any of them) in
their capacity as such in relation to the Proposed
Recapitalisation (in the context of a restructuring) or the
NTL Group Notes (or any of them) (in the context of a
restructuring), save for any legally binding agreements: (a)
entered into for the purpose of enabling the provision of
information by or to any member of the NTL Inc. Group in
connection with the Proposed Recapitalisation or to facilitate
or enable the progress of non legally binding discussions or
negotiations in connection with the Proposed Steps; (b)
entered into for the purpose of engaging legal and/or other
professional advisors in connection with the Proposed
Recapitalisation; (c) under which the Noteholders
unconditionally agree for the benefit of the issuer of the
relevant NTL Group Notes to waive all or any, and/or agree not
to exercise all or any, of their rights in respect of the NTL
Group Notes; or (d) under which the Noteholders
unconditionally agree for the benefit of the issuer of the
relevant NTL Group Notes to a standstill arrangement (or any
other arrangement having similar effect) in respect of all or
any of their rights in respect of the NTL Group Notes; and
3.3 the Consent shall terminate at 5.30pm (New York time) on 29 March 2002
and as at such time or any time thereafter the Agent may by written
notice to the Parent and the Principal Borrower take any action
pursuant to Clause 23.19 (Acceleration and Cancellation) of the Credit
Agreement in respect of any Event of Default the subject of the Consent
to the extent that, at the relevant time, such Event of Default is
continuing. For the avoidance of doubt, if at such time the Parent
Negotiations are not continuing and no other Proposed Steps are being
taken at, or are taken after, such time, no Event of Default the
subject of the Consent shall be continuing.
4. ACTION BY THE AGENT
Notwithstanding the Consent, the Agent may take any action deemed
appropriate pursuant to Clause 23.19 (Acceleration and Cancellation) of
the Credit Agreement and/or under any Finance Document upon (or at
anytime after):
4.1 the occurrence of any Event of Default under Clause 23.6 (Cross
Default) (but only whilst such Event of Default is continuing) other
than where such Event of Default is in respect of any creditor becoming
entitled (on account of an event of default (howsoever described)) to
declare any Financial Indebtedness due and payable prior to its
specified maturity by reason of a default arising solely (directly or
indirectly) as a result of any of the Proposed Steps and such Financial
Indebtedness is not declared to be or does not otherwise become due and
payable prior to its specified maturity. For the avoidance of doubt,
the Agent, on behalf of the Banks, hereby acknowledges that no Event of
Default will occur under Clause 23.7.1 (Insolvency and Rescheduling) in
respect of Financial Indebtedness arising under NTL Notes issued by the
Parent not being paid when due and payable until such time as the
holders of such NTL Notes (or any of them) are entitled, under the
terms and conditions of such NTL Notes, to declare any Financial
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Indebtedness representing principal in respect of such NTL Notes due
and payable prior to its specified maturity date; or
4.2 any of the Parent, the Shareholder, any Borrower or any Guarantor
failing to duly perform or comply with any obligation expressed to be
assumed by it hereunder unless such failure relates to the obligation
at paragraph 5.3 below and such failure is remedied within two Business
Days or such failure relates to the obligations at paragraph 5.4 or 5.5
below and such failure is remedied within 7 Business Days.
5. PARENT UNDERTAKINGS
The Parent undertakes by its counter-signature of this letter to:
5.1 procure that no issuer of NTL Group Notes (or any party on such
issuer's behalf) at any time purchases or buys-back any of the NTL
Group Notes issued by it or by any other member of the NTL Inc. Group;
5.2 procure that no member of the NTL Inc. Group which is a Guarantor as at
the date of this letter resigns as a Guarantor;
5.3 provide to the Agent (in sufficient copies for all Banks, if the Agent
so requests) a 13 week rolling cash flow forecast for the Restricted
Group (the "FORECAST") which shall be updated by the Parent and
provided to the Agent on a fortnightly basis (the first Forecast to be
delivered pursuant to this paragraph 5.3 shall be delivered by the
Parent to the Agent on 5 March 2002). Each Forecast shall be in
substantially the same form as the pro forma Forecast agreed by and
delivered to the Agent prior to the date hereof and shall include
details of cash balances for members of the Restricted Group in
substantially the same form as that information appears in, and in
respect of the same members of the Restricted Group as, the
aforementioned pro forma Forecast;
5.4 supply or otherwise make available to the Co-Ordinators an index of any
information relating to the Parent or the Restricted Group or any
member of the Restricted Group which is provided to the Noteholders (or
any of them) by any member of the Restricted Group where such
information is materially different from any information which has been
provided to the Co-Ordinators and/or the Steering Committee and/or the
Agent and/or the Banks. If requested by the Co-Ordinators, the Parent
shall make such aforementioned information available to the
Co-Ordinators on the same basis as such information is made available
to the Noteholders PROVIDED THAT the Co-Ordinators have first signed a
confidentiality undertaking in favour of the Parent in a form
acceptable to the Parent (acting reasonably);
5.5 provide to the Co-Ordinators copies of:
5.5.1 any material term sheets sent by any member of the NTL Inc.
Group to the Noteholders (or any of them) and/or any of their
advisors and which relate to the Proposed Recapitalisation;
and
5.5.2 any material comments sent by any member of the NTL Inc. Group
to the Noteholders (or any of them) and/or any of their
advisors on any material term sheets which relate to the
Proposed Recapitalisation;
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5.6 ensure that any material term sheets sent by any member of the NTL Inc.
Group to the Noteholders (or any of them) and/or any of their advisors
and which relate to the Proposed Recapitalisation are expressly marked
so as to indicate that any conclusive agreement (whether or not subject
to satisfaction of conditions) by any member of the NTL Inc. Group in
relation to the Proposed Recapitalisation is subject to such member of
the NTL Inc. Group obtaining the prior written consent of the Banks;
5.7 procure that the Co-ordinators are kept informed at each meeting
between the Parent, (and, in the case of paragraph 5.7.2 only, the
Parent, the Shareholder and/or the Principal Borrower) and the
Co-Ordinators of all material developments in relation to and, at the
request of the Co-Ordinators, make available to the Co-Ordinators all
requested documentation relating to:
5.7.1 any possible strategic investment in the NTL Inc. Group (or
any member of the NTL Inc. Group) by any person; or
5.7.2 any proposed disposal of, by one or more transactions or
series of transactions (whether related or not), the whole or
any part of the revenues or assets of any member of the
Restricted Group where such disposal is material in the
context of the Restricted Group taken as a whole; or
5.7.3 any proposed disposal of, by one or more transactions or
series of transactions (whether related or not), the whole or
any part of the revenues or assets of any member of the NTL
Inc. Group not being a member of the Restricted Group where
such disposal is material in the context of the NTL Inc. Group
(excluding for the purposes of this paragraph 5.7.3 the
Restricted Group) taken as a whole,
PROVIDED THAT the Parent, the Shareholder and the Principal Borrower
shall only make any such information and requested documentation
available to the Co-Ordinators if the Co-Ordinators have first signed a
confidentiality undertaking in favour of the Parent, the Shareholder
or, as the case may be, the Principal Borrower in a form acceptable to
the Parent, the Shareholder or, as the case may be, the Principal
Borrower (in each case acting reasonably) and PROVIDED FURTHER THAT the
Parent, the Shareholder and the Principal Borrower shall not be obliged
to make such information and requested documentation available to the
Co-Ordinators if the Parent, the Shareholder or, as the case may be,
the Principal Borrower demonstrates to the satisfaction of the
Co-Ordinators (by the delivery of a letter from the Group's external
legal advisors confirming the same, or by other satisfactory means)
that it is prohibited from making the information or, as the case may
be, requested documentation available under the terms of a
confidentiality undertaking it has entered into with a third party; and
5.8 use its reasonable endeavours, and procure that the members of the NTL
Inc. Group use their reasonable endeavours, to consider with the Agent
(on behalf of the Banks) possible methods of providing the Banks with
additional credit enhancement in relation to the Facilities and/or the
Obligors (it being acknowledged by the Agent (on behalf of the Banks)
that the ability of certain members of the NTL Inc. Group to grant
security is restricted by certain existing contractual arrangements
binding on them.
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6. CONFIRMATION AND REPRESENTATION FROM PARENT
6.1 The Parent confirms and represents by its countersignature to this
letter that to the best of its knowledge and belief no Event of Default
will occur under, and no Potential Event of Default will occur in
respect of, Clause 23.6 (Cross Default) as a result of the Proposed
Steps. The Parent agrees to promptly inform the Agent if it becomes
aware of any event which, if it were not the subject of the agreement
of the Banks contained in this letter, would constitute an Event of
Default or Potential Event of Default under or in respect of Clause
23.6 (Cross Default).
6.2 The Parent represents that to the best of its knowledge and belief no
Event of Default (which is not a Relevant Event of Default) or
Potential Event of Default (which is not in respect of a Relevant Event
of Default) will or is likely to occur as a result of the Proposed
Steps.
6.3 For the purposes of this paragraph 6 "to the best of its knowledge and
belief" means the actual knowledge and belief of the Parent's Chief
Financial Officer and the Parent's Group Treasurer, each after having
made due and careful enquiry.
7. MISCELLANEOUS
7.1 This letter is a Finance Document for the purposes of the Credit
Agreement and all other Finance Documents.
7.2 The Consent shall be without prejudice to any other rights or remedies
(save as specifically agreed otherwise in this letter) which the Agent,
any Bank or any other person may now or at any time in the future have
or which may now or at any time in the future be available to them
under the terms of the Finance Documents or as a matter of law and
nothing contained herein shall (save as specifically consented to or
agreed in this letter) constitute or be deemed to constitute a waiver,
release or discharge of any or all of the rights and remedies which the
Agent, any Bank or any other person may have under the Finance
Documents or as a matter of law.
7.3 The Co-Ordinators agree that they shall forward copies of any
documentation or information received pursuant to paragraphs 5.4, 5.5
or 5.7 only to members of the Steering Committee who have entered into
a confidentiality undertaking with the Parent in a form acceptable to
the Parent (acting reasonably).
7.4 We confirm that you may provide a copy of this letter to the agent and
the banks party to the Senior Bank Credit Agreement and to the agent
and the banks party to the Working Capital Credit Agreement.
7.5 A person who is not a party to this letter has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this letter.
7.6 This letter shall be governed by, and construed in accordance with,
English law.
Please indicate your acceptance of the terms hereof by signing the enclosed copy
of this letter and returning it to Xxxxxxx Xxxxxxx at X.X. Xxxxxx Europe Limited
at or before 5.00pm (London
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time) on 22nd March 2002, the time at which the agreement of the Agent and the
Banks set forth above (if not so accepted prior thereto) will expire.
Yours faithfully,
For and on behalf of
X.X. XXXXXX EUROPE LIMITED
as Agent on behalf of the Banks
By: /s/ Xxxxxxxx Xxxxx
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/s/ Xxxxxx Xxxxxx
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Title:
ACCEPTED AND AGREED
THE PARENT
NTL (DELAWARE), INC.
By: /s/ Xxxxxxx Xxxxxxx
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Title:
Dated:
THE SHAREHOLDER
NTL CABLECOM HOLDING GMBH
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxxx Xxxx
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Title:
Dated:
THE BORROWERS
CABLECOM GMBH
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
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CABLECOM MANAGEMENT GMBH
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
BALCAB AG
By: /s/ Xxxxxx Xxxxxxx
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/s/ Xxx Xxxxxxxx
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Title:
Dated:
THE GUARANTORS
NTL CABLECOM HOLDING GMBH
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxxx Xxxx
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Title:
Dated:
CABLECOM GMBH
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
CODITEL SARL
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
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BALCAB AG
By: /s/ Xxxxxx Xxxxxxx
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/s/ Xxx Xxxxxxxx
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Title:
Dated:
SWISS ONLINE AG
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
CABLECOM ENGINEERING AG
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
NORDEX GMBH
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
RERA GMBH IMMOBILIENGESELLSCHAFT
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
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CABLECOM BUSINESS AG
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
REDIFFUSION AG
By: /s/ Xxx Xxxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
CABLECOM MANAGEMENT GMBH
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
URBANET SA
By: /s/ Xxxx-Xxxxxxx Cardineaux
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/s/ Xxxxxx Xxxxxxx
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Title:
Dated:
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