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Exhibit 10.74
COSMAR CORPORATION
RENAISSANCE COSMETICS, INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As of August 8, 0000
Xxxxxx Xxxxxxx Xxxxxxx Inc.,
Individually and as Collateral Agent
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Waiver to Note Purchase Agreement
Ladies and Gentlemen:
Reference is hereby made to the Note Purchase Agreement, dated as of
December 21, 1994, as amended or otherwise modified by Waiver No. 1 to Note
Purchase Agreement, dated as of December 22, 1994, Waiver No. 2 to Note Purchase
Agreement, dated as of January 12, 1995, Waiver No. 3 to Note Purchase
Agreement, dated as of February 28, 1995, Waiver No. 4 to Note Purchase
Agreement, dated as of March 24, 1995, Amendment No. 1 and Waiver to Note
Purchase Agreement, dated as of April 7, 1995, Amendment No. 2 to Note Purchase
Agreement, dated as of September 8, 1995, Waiver to Note Purchase Agreement,
dated as of September 18, 1995, Waiver to Note Purchase Agreement, dated as of
December 22, 1995, Amendment No. 3 and Consent to Note Purchase Agreement, dated
as of January 8, 1996, Limited Waiver to Note Purchase Agreement, dated as of
February 13, 1996, Amendment No. 4 and Waiver to Note Purchase Agreement and
Amendment No. 2 to Security Documents, dated as of May 29, 1996, and Amendment
No. 5 to Note Purchase Agreement, dated as of June 14, 1996 (as so amended, the
"Note Purchase Agreement"), each among Cosmar Corporation, a Delaware
corporation (the "Company"), Renaissance Cosmetics, Inc., a Delaware corporation
(the "Parent"), and Nomura Holding America Inc. (together with its successors
and assigns, the "Purchaser"). All capitalized terms used in this waiver letter
(this "Waiver") and not otherwise defined herein shall have the meanings
ascribed thereto in the Note Purchase Agreement.
A. Pursuant to a Securities Purchase Agreement, dated as of the date
hereof (the "Securities Purchase Agreement"), between the Parent and CIBC Wood
Gundy Securities Corp. ("CIBC"), the Parent has authorized the issuance and sale
to CIBC of up to $80,000,000 aggregate liquidation value of its 14.0% Senior
Redeemable
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Note Purchase Agreement
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Page 2
Preferred Stock, Series B, $.01 par value (together with any such preferred
stock issuable as a dividend thereon and any preferred stock having
substantially identical terms exchanged therefor in accordance with the terms of
the Registration Rights Agreement, to be dated as of August 15, 1996, between
the Parent and CIBC, as amended, modified or supplemented in accordance with its
terms, collectively, the "Initial Senior Preferred Stock, Series B"), and
Warrants to purchase up to an aggregate of 215,435 shares of Parent Common Stock
(the "New Common Stock Purchase Warrants") for 96.5% of the aggregate
liquidation value of such preferred stock, or $77,200,000 (the "Preferred Stock
Sale"). Pursuant to Section 5.6 of a Securities Purchase Agreement, dated as of
May 29, 1996, as amended (the "Prior Securities Purchase Agreement"), between
the Parent and CIBC WG Argosy Merchant Fund 2, L.L.C. (the "CIBC Affiliate"),
the Parent has authorized the issuance and sale to the CIBC Affiliate of 51,959
shares of Parent Common Stock for $5,000,000 (the "Common Stock Sale"). The
Parent and the Company have requested a waiver of the requirements of Section
3.1(b) of the Note Purchase Agreement (requiring that the Net Cash Proceeds from
the sale by the Parent of any of its Capital Stock be applied to prepay first
the Term Notes and then the Revolving Notes) in order to permit the Parent to
retain 100% of the Net Cash Proceeds from the Preferred Stock Sale and the
Common Stock Sale, and to use (i) up to $20,500,000 of such proceeds to redeem
all outstanding shares of the Parent's Senior Exchangeable Redeemable Preferred
Stock, Series A, $.01 par value, together with accrued dividends thereon (the
"Existing Exchangeable Preferred Stock"), (ii) up to $16,300,000 of such
proceeds to pay the unpaid purchase price for the Capital Stock of Great
American Cosmetics, Inc., a New York corporation ("Great American"), to pay
certain existing Debt of Great American and to pay fees and expenses incurred in
connection with the Great American Acquisition (as defined below), and (iii) the
remainder of such proceeds for working capital and other purposes permitted
under the Note Purchase Agreement. Pursuant to the Securities Purchase
Agreement, the Parent has also granted CIBC an option to purchase up to
$20,000,000 aggregate liquidation preference of additional 14% Senior Redeemable
Preferred Stock, Series B (together with any such preferred stock issuable as a
dividend thereon and any preferred stock having substantially identical terms
exchanged therefor in accordance with the terms of the Registration Rights
Agreement referred to above, collectively, the "Option Senior Preferred Stock,
Series B"), together with additional Warrants to purchase additional Parent
Common Stock (the "Option Stock Sale"). The Parent and the Company have
requested a waiver of the requirements of Section 3.1(b) of the Note Purchase
Agreement in order to permit the Parent to retain a portion of the Net Cash
Proceeds of the Option Stock Sale for working capital purposes.
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B. Pursuant to a Stock Purchase Agreement, dated June 27, 1996 (the
"Great American Acquisition Agreement"), among the Company, Xxxxx Xxxxxxx,
Xxxxxxx Xxxxxxx and Great American, the Company has agreed to purchase all the
outstanding Capital Stock of Great American (the "Great American Acquisition")
for an aggregate purchase price, including repayment of existing Debt of Great
American, of approximately $16,900,000, $600,000 of which has already been paid
into escrow by the Company. The Company and the Parent have requested a waiver
of the requirements of Section 10.4 of the Note Purchase Agreement (prohibiting
the Company from purchasing the Capital Stock of any other Person) and Section
10.7 of the Note Purchase Agreement (prohibiting the Company from making any
Restricted Investment) in order to permit the Company to consummate the Great
American Acquisition in the manner contemplated by the Great American
Acquisition Agreement.
C. In addition, the Company and the Parent have requested a waiver of
the requirements of Section 3.1(d) of the Note Purchase Agreement (requiring an
automatic payment on the Revolving Notes to the extent the unpaid principal
amount thereof exceed the Revolver Borrowing Base then in effect) and Section
6.4 of the Note Purchase Agreement (requiring as a condition to the Purchaser's
obligation to purchase any additional Revolving Notes that, after giving effect
to any such purchase, the aggregate unpaid principal amount of the Revolving
Notes shall not exceed the Revolving Note Limit) in order to permit the Company
to sell an aggregate of up to $40,000,000 of Revolving Notes to the Purchaser
until the Termination Date without regard to such requirements at such times as
the Revolver Borrowing Base is, and remains, equal to or greater than
$30,000,000.
D. As an inducement to the Purchaser to grant all the foregoing
waivers, the Parent has offered to grant to the Collateral Agent a first
priority perfected Lien in $33,800,000 of the Net Cash Proceeds from the
Preferred Stock Sale and the Common Stock Sale, together with accrued interest
thereon, if any, and to maintain such Lien until the Termination Date on terms
and conditions in all respects satisfactory to the Purchaser and its counsel.
E. The Purchaser has indicated it is willing to grant such waivers on
the terms and conditions hereof.
Accordingly, the Company, the Parent, and, by your acceptance hereof,
the Purchaser and the Collateral Agent, hereby agree as follows:
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1. Waivers. Effective on and as of the Effective Date referred to
below, the Purchaser waives
(a) the requirements under Section 3.1(b) of the Note Purchase
Agreement as follows:
(A) solely to permit the Parent to retain 100% of the
Net Cash Proceed from the Preferred Stock Sale and the Common Stock
Sale; provided however, that, the aggregate Net Cash Proceeds received
by the Parent from such Preferred Stock Sale and Common Stock Sale
shall not be less than $59,600,000 after giving effect to the
following:
(i) the receipt by the Parent of any refund paid by or
on behalf of the CIBC Affiliate with respect to fees previously
paid by the Parent under the Prior Securities Purchase Agreement;
(ii) the application of not more than $6,000,000 of such
proceeds to purchase discount, fees and expenses (including legal
fees and expenses) incident to the Preferred Stock Sale, the
Common Stock Sale and the Great American Acquisition; and
(iii) the application of not more than $20,500,000 of
such proceeds to pay the redemption price to the CIBC Affiliate to
redeem all the outstanding Existing Exchangeable Preferred Stock,
together with accrued dividends thereon; and,
provided further, that on any date on which any of such Net Cash Proceeds are
received by the Parent, the Parent shall immediately
(i) first, apply such proceeds to the purchase of a
certificate of deposit or other Cash Equivalent in an amount not
less than $33,800,000 which shall be pledged to the Collateral
Agent as contemplated under clause (c) below, and
(ii) thereafter, contribute any remaining Net Cash
Proceeds to the Company for deposit in a Depositary Account of the
Company pending use of such proceeds by the Company for working
capital or other purposes permitted by the Note Purchase
Agreement, including, without limitation, to prepay outstanding
amounts under the Revolving Notes and to pay the unpaid purchase
price in respect of the Great American
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Acquisition, to repay Debt of Great American and to pay fees and
expenses incurred in connection with the Great American
Acquisition, each as contemplated by clause (d) below; and
(B) with respect to any Net Cash Proceeds of the Option
Stock Sale, solely to permit the Parent:
(i) to contribute the first $5,000,000 of any such Net
Cash Proceeds to the Company for deposit in a Depositary Account
of the Company pending use of such proceeds by the Company for
working capital or other purposes permitted by the Note Purchase
Agreement, including, without limitation, to prepay outstanding
amounts under the Revolving Notes and to pay the unpaid purchase
price in respect of the Great American Acquisition, to repay Debt
of Great American and to pay fees and expenses incurred in
connection with the Great American Acquisition, each as
contemplated by clause (d) below;
(ii) to pay the next $7,000,000 of any such Net Cash
Proceeds to the Purchaser pursuant to said Section 3.1(b) for
application to the unpaid principal amount of the Term Notes in
accordance with Section 3.3 of the Note Purchase Agreement;
(iii) to pay an amount equal to the accrued and unpaid
interest on the principal amount of the Term Notes being repaid
pursuant to clause (B)(ii) above to the date of such repayment
from any remaining amount of such Net Cash Proceeds to the
Purchaser for application to the payment of such accrued and
unpaid interest; and
(iv) to contribute any remaining amount of such Net Cash
Proceeds to the Company for deposit in a Depositary Account of the
Company pending use of such proceeds by the Company for working
capital or other purposes permitted by the Note Purchase
Agreement, including, without limitation, to prepay outstanding
amounts under the Revolving Notes and to pay the unpaid purchase
price in respect of the Great American Acquisition, to repay Debt
of Great American and to pay fees and expenses incurred in
connection with the Great American Acquisition, each as
contemplated by clause (d) below;
(for the avoidance of doubt, the requirements under Section 9.10 of the
Note Purchase Agreement or such other applicable provision of the Note
Purchase
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Agreement, if any, which might be construed to prohibit the Parent from
issuing and selling the Initial Senior Preferred Stock, Series B, any
Option Senior Preferred Stock, Series B and the New Common Stock
Purchase Warrants to CIBC pursuant to the Securities Purchase Agreement
and the shares of Parent Common Stock to the CIBC Affiliate pursuant to
the Prior Securities Purchase Agreement and retaining the proceeds
thereof for the uses permitted hereunder are also waived solely to
permit such issuances, sales and such uses of those proceeds; provided
however, that nothing herein shall waive any restriction on the ability
of the Parent and its Subsidiaries to make any Restricted Payment under
Section 10.7 of the Note Purchase Agreement (except as specifically
provided in clause (b) below), any restriction contained in Section
10.8 of the Note Purchase Agreement, or, except as specifically
provided herein with respect to such issuances, sales and such uses of
those proceeds, any other restriction contained in the Note Purchase
Agreement on the ability of the Parent and its Subsidiaries to exercise
any rights with respect to the Initial Senior Preferred Stock, Series B
so issued);
(b) the requirements under Section 10.7 of the Note Purchase
Agreement, solely to permit the Parent to redeem all the outstanding
Existing Exchangeable Preferred Stock; provided however, that the
Parent shall only pay the redemption price for Existing Exchangeable
Preferred Stock out of Net Cash Proceeds received by the Parent from
the Preferred Stock Sale, the Common Stock Sale and the Option Stock
Sale and proceeds of any refund of fees received from the CIBC
Affiliate referred to in paragraph 1(a)(i) above and shall not use more
than $20,500,000 of such proceeds for such purpose;
(c) the requirements under Section 3.1(d) of the Note Purchase
Agreement and Section 6.4 of the Note Purchase Agreement; provided
however, that the waiver contemplated by this clause (c) shall not be
effective on the first Business Day immediately following any date that
either
(i) the Company has knowledge or any reason to believe
that the aggregate amount of Eligible Accounts and Eligible
Inventory outstanding as of such date shall be less than the
aggregate amount thereof reflected in the latest Borrowing Base
Report theretofore delivered to the Purchaser pursuant to Section
7(g) of the Note Purchase Agreement to such an extent as to cause
the sum of (A) the Revolver Borrowing Base on such date, plus (B)
$10,000,000, to be less than the outstanding principal amount of
the Revolving Notes on such date (unless, on or before such first
Business Day following the date on
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Note Purchase Agreement
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which the Company first has such knowledge or a basis for such
belief, the Company shall have repaid a sufficient principal
amount of the Revolving Notes such that the sum of (A) the
Revolver Borrowing Base on such first Business Day, plus (b)
$10,000,000, shall be equal to or greater than the outstanding
principal amount of the Revolving Notes on such first Business Day
after giving effect to such repayment), or
(ii) the Collateral Agent shall not have received a
first priority perfected Lien in $33,800,000 of Cash Equivalents
of the Parent, together with any interest accrued thereon,
pursuant to a security agreement (the "Parent Cash Equivalent
Pledge Agreement") in form and substance satisfactory in all
respects to the Purchaser and its counsel (which agreement need
not be in the form of Exhibit B to the Note Purchase Agreement,
but in any case shall provide that the Lien thereof shall be
maintained by the Parent until the Termination Date), together
with a legal opinion from Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
to the effect that the Parent Cash Equivalent Pledge Agreement has
been duly authorized, executed and delivered by the Parent, is
enforceable against the Parent in accordance with its terms, and
is effective to create a first priority, perfected Lien on such
cash or Cash Equivalents for the benefit of the Collateral Agent,
and otherwise in form and substance satisfactory in all respects
to the Purchaser and its counsel;
(d) the requirements of Section 10.4 of the Note Purchase
Agreement and Section 10.7 of the Note Purchase Agreement, solely to
permit the Company to consummate the Great American Acquisition in the
manner contemplated by the Great American Acquisition Agreement,
including payment of outstanding Debt of Great American; provided
however, that the Company shall only pay the unpaid portion of the
purchase price for the Capital Stock of Great American and repay
outstanding Debt of Great American and fees and expenses incurred in
connection with the Great American Acquisition out of Net Cash Proceeds
received by the Parent from the Preferred Stock Sale, the Common Stock
Sale and the Option Stock Sale and proceeds of any refund of fees
received by the Parent from the CIBC Affiliate referred to in paragraph
1(a)(i) above (in addition to the $600,000 already paid by the Company
into escrow for such purpose), and the Company shall not use more than
an aggregate of $16,300,000 of such Net Cash Proceeds and such refund
proceeds for such purpose;
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(e) the requirements of Section 10.6 of the Note Purchase
Agreement, solely to permit the Company and its Subsidiaries to engage
in the business of producing, outsourcing, packaging, marketing,
distributing, advertising, promoting, merchandising and selling nail
polish, lipstick, eyeliners, mascara, make-up and related accessories
and other cosmetics products to the mass markets substantially in the
manner engaged in on the date hereof by Great American; and
(f) the requirements under Section 9.6 of the Note Purchase
Agreement until September 15, 1996, solely as such requirements relate
to the delivery of the documents more particularly identified in
Section 2 hereof.
2. Subsidiary Guarantee, etc. On or before September 15, 1996, the
Company shall, or shall cause its Subsidiaries, to deliver to the Purchaser each
of the following documents, each in form and substance satisfactory to the
Purchaser:
(a) a Subsidiary Guarantee, duly executed and delivered by Xxxx
Brazil;
(b) a Subsidiary Security Agreement, duly executed and delivered
by Xxxx Brazil;
(c) a Commitment to Provide a Mortgage Guarantee, duly executed by
the Company and Xxxx Brazil;
(d) a Brazilian Pledge Agreement in substantially the form of
Annex III to the New Xxxx U.S. Subsidiary Security Agreement, duly
executed by New Xxxx;
(e) evidence that the pledge of the Capital Stock of Xxxx
Argentina has been perfected in the manner set forth in Section 7.2(b)
of the New Xxxx U.S. Subsidiary Security Agreement;
(f) the certificate(s) representing the outstanding Capital Stock
of Xxxx Brazil, together with powers of attorney duly executed by New
Xxxx and the officer of the Parent designated to be the holder of
record of one share of such Capital Stock, respectively; and
(g) an opinion of the Company's local counsel in Brazil addressing
those matters set forth in Exhibit F-S to the Note Purchase Agreement.
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3. Conditions to Effectiveness. This Waiver shall become effective on
the date (the "Effective Date") on which the Purchaser has received all of the
following documents:
(a) a counterpart of this Waiver, duly executed and delivered by
the Parent and the Company;
(b) the acknowledgement and agreement attached to this Waiver,
duly executed and delivered by each Subsidiary of the Company which has
entered into a Subsidiary Guarantee;
(c) a certificate from an Authorized Officer of the Company dated
the Effective Date, certifying as to the matters set forth in Section 4
of this Waiver;
(d) the Parent Cash Equivalent Pledge Agreement, duly executed and
delivered by the Parent and acknowledged by the bank or other financial
institution which has agreed to issue the certificate of deposit or
other Cash Equivalent proposed to be purchased by the Parent and
pledged thereunder; and
(e) the legal opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
with respect to the Parent Cash Equivalent Pledge Agreement
contemplated by Section 1(c)(ii) hereof.
4. Representations and Warranties: No Default or Event of Default. Each
of the Company and the Parent hereby represents, warrants, covenants and agrees
as follows, on and as of the Effective Date after giving effect to this Waiver:
(a) the representations and warranties contained in Section 4.1
through 4.35, inclusive and elsewhere in the Note Purchase Agreement,
the representations and warranties contained in the Related Documents
and the representations and warranties of the Parent contained in
Section 3.1 of the Securities Purchase Agreement shall be true and
correct on and as of the Effective Date with the same effect as if such
representations and warranties had been made on and as of the Effective
Date, except that any such representation or warranty which is
expressly made only as of a specified date need be true only as of such
date; and
(b) no Default or Event of Default shall have occurred and be
continuing.
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Note Purchase Agreement
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5. Effect of Waiver. It is hereby agreed that, except as specifically
provided herein, this Waiver does not in any way amend, modify, affect or impair
the terms, conditions and other provisions of the Note Purchase Agreement, the
Notes or the Related Documents, or the obligations of the Company or the Parent
thereunder, and all terms, conditions and other provisions of the Note Purchase
Agreement, the Notes and the Related Documents shall remain in full force and
effect except to the extent specifically amended or otherwise specifically
modified pursuant to the provisions of this Waiver. If any representation or
warranty in this Waiver shall fail to be true and correct in any material
respect, such failure and any failure to fully satisfy any other term or
condition of this Waiver shall automatically, and without the requirement of any
notice to the Company or the Parent, constitute an Event of Default under the
Note Purchase Agreement.
6. Counterparts. This Waiver may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which taken
together shall be deemed to constitute one and the same instrument.
7. Governing Law. THIS Waiver SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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Waiver to
Note Purchase Agreement
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If the foregoing is acceptable, please sign and return a copy of this
Waiver to indicate your agreement to the terms hereof.
Very truly yours,
COSMAR CORPORATION
By: /s/ Illegible
---------------------------------
Title: Vice President
RENAISSANCE COSMETICS, INC.
By: /s/ Illegible
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Title: Vice President - Secretary
Accepted and Agreed as
of date first above written
NOMURA HOLDING AMERICA INC.,
Individually and as Collateral Agent
By: /s/ Xxxxxx Xxxxxx
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Title: Attorney-in-Fact
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Note Purchase Agreement
Dated As of August 8, 1996
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ACKNOWLEDGEMENT AND AGREEMENT
The terms and provisions of the foregoing Waiver to Note Purchase
Agreement, dated as of August 8, 1996 (the "Waiver"), with respect to the Note
Purchase Agreement, dated as of December 21, 1994, as amended or otherwise
modified by Waiver No. 1 to Note Purchase Agreement, dated as of December 22,
1994, Waiver No. 2 to Note Purchase Agreement, dated as of January 12, 1995,
Waiver No. 3 to Note Purchase Agreement, dated as of February 28, 1995, Waiver
No. 4 to Note Purchase Agreement, dated as of March 24, 1995, Amendment No. 1
and Waiver to Note Purchase Agreement, dated as of April 7, 1995, Amendment No.
2 to Note Purchase Agreement, dated as of September 8, 1995, Waiver to Note
Purchase Agreement, dated as of September 18, 1995, Waiver to Note Purchase
Agreement, dated as of December 22, 1995, Amendment No. 3, Waiver and Consent to
Note Purchase Agreement, Limited Waiver to Note Purchase Agreement, dated as of
February 13, 1996, Amendment No. 4 and Waiver to Note Purchase Agreement and
Amendment No. 2 to Security Documents, dated as of May 29, 1996, and Amendment
No. 5 to Note Purchase Agreement, dated as of June 14, 1996 (as so amended, the
"Note Purchase Agreement"), each among Cosmar Corporation, a Delaware
corporation (the "Company"), Renaissance Cosmetics, Inc., a Delaware corporation
(the "Parent"), and Nomura Holding America Inc., a Delaware corporation
(together with its successors and assigns, collectively, the "Purchaser"), and
the transactions contemplated by the Note Purchase Agreement as modified by the
Waiver, are hereby severally and not jointly acknowledged and agreed to by each
of the undersigned Subsidiaries of the Company, and each hereby severally and
not jointly confirms its respective Subsidiary Guarantee with respect to the
Obligations under, and as the foregoing capitalized terms are defined in, the
Note Purchase Agreement, as so modified.
This Acknowledgement and Agreement may be executed by each Subsidiary
of the Company in any number of counterparts, each of which shall be deemed an
original, and all of which taken together shall be deemed to constitute one and
the same instrument.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Acknowledgement and Agreement to be executed and delivered by its respective
duly authorized officer as of the date first above written.
XXXX PERFUMES CORP.
HOUBIGANT (1995) LIMITED/
HOUBIGANT (1995) LIMITEE
XXXX PERFUMES (CANADA) LTD.
XXXX S.A.
PERFUMES XXXX S.A.I.C.
FINANCIERA DE PERFUMERIA S.A.
ESTALVI S.A.
MARCAFIN S.A.
C.O.M.I.N.S.A.
PERFUMES AND COSMETICS IMPORTERS, INC.
PARFUMS XXXX EXPORT CORP.
RSH 149, S.A.R.L.
PERFUMES XXXX DO BRASIL, S.A.
By /s/ Illegible
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Title: Vice President
(of each party hereto)