EXHIBIT 10.12
OPTION TO PURCHASE PARTNERSHIP INTERESTS
THIS OPTION TO PURCHASE PARTNERSHIP INTERESTS (this "Option
Agreement") is made and entered into as of the 17th day of June, 1994, but made
effective as of March 22, 1994, by KILICO Realty Corporation, an Illinois
corporation ("KRC" or "Optionor"), in favor of The Prime Group, Inc., an
Illinois corporation (herein sometimes referred to as "Prime" or the
"Optionee").
R E C I T A L S :
A. KRC is a general partner of 77 West Xxxxxx Limited Partnership,
an Illinois limited partnership (the "Partnership"), under a certain Third
Amended and Restated Agreement of Limited Partnership of 77 West Xxxxxx Limited
Partnership dated March 14, 1991 (the "Third Amended and Restated Agreement").
The Third Amended and Restated Agreement, as amended, is referred to herein as
the "Partnership Agreement."
B. KRC is the general partner of K/77 Investors Limited Partnership,
an Illinois limited partnership ("K/77"), under a certain Agreement of Limited
Partnership dated June 16, 1994 but made effective as of March 22, 1994 (the
"Original K/77 Agreement"). The Original K/77 Agreement, as amended, is referred
to herein as the "K/77 Partnership Agreement."
C. Optionor has agreed to enter into this Option Agreement under and
pursuant to a certain Amended and Restated Purchase and Sale Agreement (the
"Purchase and Sale Agreement") dated as of June 17, 1994, but effective as of
March 22, 1994 (subject to Section 3.3 thereof), by and among Prime, KRC, Xxxxxx
Investors Life Insurance Company ("KILICO"), Federal Xxxxxx Life Assurance
Company ("FKLA"), FKLA Realty Corporation ("FKLA Realty"), and KR 77 Fitness
Center, Inc. KILICO and FKLA are sometimes referred to herein collectively as
"KILICO/FKLA".
D. In connection with the consummation of the transactions set forth
in the Purchase and Sale Agreement, Prime, KRC, KILICO and FKLA, have entered
into or will enter into a certain Indemnity Agreement (the "Indemnity
Agreement") pertaining to the Partnership Agreement, and certain other
guaranties and indemnities among the parties as more fully described therein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Optionor agrees as follows:
1. Grant of Option
(a) Optionor hereby grants to Optionee the right and option (the
"Option") to purchase the following interests (collectively referred to herein
as the "Option Interests"), as owned by Optionor:
(i) 100% of the interest in the Partnership, as a general
partner, owned by KRC, representing a 5% interest in the
Partnership ("KRC General Partner Interest"); and
(ii) 100% of the interest in K/77, as a general partner, owned by
KRC, representing a 1% interest in K/77 (the "KRC-K/77 General
Partner Interest").
(b) The Option shall be subject to the following terms and conditions:
(i) The Option shall expire if not exercised on or before the
maturity date of the loan made by the Co-Agents under the BLA
(as such terms are defined in the Purchase and Sale Agreement).
(ii) The purchase price to be paid for the Option Interests (the
"Option Price") upon exercise of the Option shall be Ten
Dollars ($10.00) to be paid to Optionor.
(iii) The Option may be exercised only as to the entire Option
Interests collectively by the giving of written notice by
Optionee to Optionor stating that Optionee elects to exercise
the Option and designating a date and place for closing which
date shall be within thirty (30) days after the date of
exercise.
(iv) At the closing so designated by Optionee, Optionor shall
execute and deliver such documents and instruments as may be
necessary to vest the Option Interests in Optionee free and
clear of all claims, liens, charges, security interests and
encumbrances, except as to the Restrictions (as defined below),
against payment of the Option Price, and Optionee shall execute
and deliver, or cause to be executed and delivered, the other
documents and instruments contemplated by Paragraph 3 below.
The parties agree to cause to be executed and delivered
appropriate amendments to the Partnership Agreement and the
K/77 Partnership Agreement reflecting the withdrawal of
Optionor and the acquisition of the Option Interests by
Optionee.
(v) At the time of the exercise of the Option, and at the time of
the closing pursuant thereto, there shall not then be existing
any default (after expiration of applicable notice and cure
periods) under or pursuant to the Acquisition Note (as defined
in the Purchase and Sale Agreement), the Guaranty (as defined
in the Purchase and Sale Agreement), the Indemnity Agreement,
or the Security Agreement (Partner Interests), except to the
extent any such default results from KILICO/FKLA's failure to
perform the Continuing KILICO/FKLA Obligations (as defined in
the Purchase and Sale Agreement), provided that in each case
all conditions to such performance have been satisfied.
(vi) Notwithstanding anything to the contrary in this Option
Agreement, and subject to the provisions of clause (i)
regarding the expiration of the Option, Optionor shall be
obligated to exercise the Option within thirty (30) days after
the "Bank" (as defined in the Purchase and Sale Agreement)
approves the purchase by Optionee of the Option Interests
pursuant hereto.
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(c) At the closing, the Option Interests acquired by the Optionee
hereunder shall entitle Optionee to all the rights, powers and privileges of
Optionor, subject to the Restrictions, and all of the terms, provisions and
restrictions set forth in the Partnership Agreement as to the KRC General
Partner Interest, and the K/77 Partnership Agreement as to the KRC-K/77 General
Partner Interest.
(d) This Option Agreement, the Option Interests, and the exercise of
the Option, are subject to the following agreements and options, and applicable
consent rights set forth therein, as more fully stated therein, which may affect
the Option Interests and/or other interests in the Partnership or K/77:
(i) A certain Option and Agreement for Purchase and Sale of
Partnership Interests dated as of November 13, 1991, by and
among Prime, KILICO, FKLA and X.X. Xxxxxxxxx & Sons
Company, a Delaware Corporation (the "Donnelley Option");
and
(ii) The BLA and related documents (the "BLA Documents").
(collectively the Donnelley Option and the BLA Documents are referred to as
"Restrictions").
2. Indemnity Agreement. It shall be a condition precedent to the sale of
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the Option Interests to Prime that, concurrently with the execution and delivery
of this Option Agreement, Prime (the "Indemnitor") shall have executed and
delivered the Indemnity Agreement to KRC, KILICO and FKLA. The Indemnity
Agreement shall be, from and after its execution and delivery by Indemnitor,
binding and enforceable against Indemnitor, and nothing contained herein, nor in
the consummation of the sale and purchase of the Option Interests, shall in any
manner terminate, nullify, waive, alter, amend or modify in any way the
obligations and liabilities therein set forth on the part of Indemnitor.
3. Other Agreements. It shall be a condition precedent to the closing of
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the sale of the Option Interests to Prime that Prime shall have executed, or
caused to be executed, and delivered to KRC, KILICO, FKLA, FKLA Realty and KR 77
Fitness Center, the following documents and instruments, in substantially the
same form as the "Guaranty", the "Security Agreement (Partner Interests)", and
the "Subordination Agreement" (as such terms are defined in the Purchase and
Sale Agreement), as applicable:
(a) a Limited Recourse Guaranty, under which Prime shall guaranty
repayment of the Acquisition Note (as defined in the Purchase and Sale
Agreement), limited in recourse to the collateral and proceeds of the
collateral pledged under the Security Agreement (General Partner
Interests) described in subparagraph (b) below;
(b) a Security Agreement (General Partner Interests), under which Prime
shall pledge the Option Interests to secure its obligations under the
Limited Recourse Guaranty described in subparagraph (a) above and the
Indemnity Agreement;
(c) a Subordination Agreement - 77 West Xxxxxx Limited Partnership, under
which Prime and K/77 subordinate their rights as partners in 77 West
Xxxxxx Limited Partnership to repayment of capital contributions,
loans, and interest thereon, to the repayment of the Acquisition Note,
the other secured obligations under the
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Security Agreement (Partner Interests) and the Security Agreement
(General Partner Interests) described in subparagraph (b) above, and
the repayment of the SMFA Debt;
(d) a Subordination Agreement - K/77 Investors Limited Partnership, under
which Prime and PGLP subordinate their rights in K/77 Investors
Limited Partnership to repayment of capital contributions, loans, and
interest thereon, to the repayment of the Acquisition Note and, the
other secured obligations under the Security Agreement (Partner
Interests) and the Security Agreement (General Partner Interests)
described in subparagraph (b) above, and the repayment of the SMFA
Debt; and
(e) such other documents and instruments as KRC, KILICO, FKLA, FKLA Realty
and KR 77 Fitness Center may reasonably request to effectuate the
transactions contemplated in the foregoing documents and instruments,
or to perfect any rights or security interests granted thereunder.
4. Representations and Warranties. Optionor hereby represents and
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warrants to Optionee that it is the record and beneficial owner of the Option
Interest owned by it free and clear of all claims, liens, charges, security
interests and encumbrances, except for the Restrictions; that the Partnership
Agreement and the K/77 Partnership Agreement, respectively, are currently in
full force and effect and have not been modified or amended, except as disclosed
to Optionee; and that it has full power and authority to execute and deliver
this Option and perform its obligations hereunder.
5. Assignment; Binding Effect. The Option and all or any portion of the
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rights and privileges conferred hereby hall not be assigned, transferred,
pledged or hypothecated in any way, except that Optionee may assign the Option
and its rights hereunder to any one or more person or entity controlling,
controlled by or under common control with Optionee. Subject to the foregoing
provisions, this Option shall inure to the benefit of and be binding upon
Optionor and Optionee and their respective successors and permitted assigns. Any
such permitted assignee(s) of Optionee shall execute and deliver the documents
and instruments described in Paragraph 3 above to the extent applicable.
6. Governing Law. In all respects, this Option shall be governed by and
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construed in accordance with the laws of the State of Illinois.
7. Notices. Any notice required or permitted hereunder shall be in
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writing and shall be given by personal delivery, telegraph, telex or U.S. mail,
certified or registered with return receipt requested, postage prepaid and shall
be deemed to be effective three business days after the mailing, twenty four
(24) hours after transmission of a telegram or telex, or on the date of delivery
if delivered personally, at the following addresses or such other addresses as
one party may from time to time give another in writing:
If to Optionor, to:
The Prime Group, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
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with copy to:
The Prime Group, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
If to Optionee, to:
Xxxxxx Financial Services, Inc.
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Investment Group
with copy to:
KFC Portfolio Corp.
c/x Xxxxxx Financial Services, Inc.
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
Real Estate Counsel
and to:
Xxxx, Xxxxx & Xxxx
00 Xxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Any party may change its address for purposes hereof by notice to the other
parties.
8. Severability. In case any one or more of the provisions contained in
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this Option should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
[Signature Page Follows]
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IN WITNESS WHEREOF, Optionor has caused this Option Agreement to be
executed on the date hereinabove written.
OPTIONOR:
KILICO REALTY CORPORATION, an Illinois
corporation
By: /s/ Xxxx Xxxxx
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Its: Pres
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By: /s/ H.E. Xxxxxxxx
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Its: Auth Sig
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ACCEPTANCE OF OPTION
TO PURCHASE PARTNERSHIP INTERESTS
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The undersigned herein accepts and agrees to the terms, conditions and
limitations set forth in the Option to Purchase Partnership Interests dated as
of June 17, 1994, but made effective as of March 22, 1994, from KILICO Realty
Corporation and KR 77 Fitness Center, Inc. in favor of the undersigned.
Dated: June 17, 1994, but made effective as of March 22, 1994.
THE PRIME GROUP, INC.
By: /s/
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Its: Executive Vice President
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ACKNOWLEDGEMENT AND CONSENT
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The undersigned, as lenders under the "Standby First Mortgage Funding
Agreement" and the "Subordinate Mortgage Funding Agreement" (as such terms are
defined in the Purchase and Sale Agreement), hereby acknowledge and consent to
the granting of the Option and the purchase of the Option Interests pursuant
thereto, subject to and in accordance with the provisions of the foregoing
Option Agreement.
Dated: June 17, 1994, but made effective as of March 22, 1994.
XXXXXX INVESTORS LIFE INSURANCE
COMPANY, an Illinois insurance corporation
By: /s/
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Its:
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By: /s/
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Its:
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FEDERAL XXXXXX LIFE ASSURANCE
COMPANY, an Illinois insurance corporation
By: /s/
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Its:
--------------------------------
By: /s/
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Its:
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FIRST AMENDMENT TO
OPTION TO PURCHASE PARTNERSHIP INTERESTS
THIS FIRST AMENDMENT TO OPTION TO PURCHASE PARTNERSHIP INTERESTS
("Amendment") is made as of this 21st day of January, 1997 by KILICO Realty
Corporation, an Illinois corporation ("KRC" or "Optionor") and The Prime Group,
Inc., an Illinois corporation ("TPG" or "Optionee").
RECITALS
A. KRC and TPG have entered into that Option To Purchase Partnership
Interests entered into as of June 17, 1994 but made effective as of March 22,
1994 (the "Option Agreement").
B. KRC and TPG have also entered into that Agreement of even date
herewith made by Xxxxxx Investors Life Insurance Company, an Illinois insurance
corporation; Federal Xxxxxx Life Assurance Company, an Illinois insurance
corporation; KRC; FKLA Realty Corporation, an Illinois corporation; KR 77
Fitness Center, Inc., a Delaware corporation; 77 West Xxxxxx Limited
Partnership, an Illinois limited partnership; TPG; Prime group Limited
Partnership, an Illinois limited partnership; and Prime 77 Fitness Center, Inc.,
an Illinois corporation (the "Agreement"). Terms defined in the Agreement are
used with the same meanings in this Amendment.
C. As required by the Agreement, KRC and TPG have agreed to enter into
this Amendment to amend certain provisions of the Option Agreement.
NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Amendment agree as follows:
Section 1. Amendments. The Option Agreement is herby amended as follows:
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a. Section 1(b)(i) of the Option Agreement is hereby deleted in its
entirety and the following material substituted in lieu thereof:
(i) The Option shall expire if not exercised on or before September
23, 1997, and the Optionee shall designate the closing to occur
no later than September 30, 1997.
b. Section 1(b)(iii) of the Option Agreement is herby amended by deleting
the phrase "within thirty (30) days after the date of exercise" and inserting in
lieu thereof "within five (5) business days after the date of exercise".
c. Section 1(b)(v) of the Option Agreement is hereby deleted in its
entirety.
d. Sections 2 and 3 of the Option Agreement are hereby deleted in their
entirety.
e. Section 7 of the Option Agreement is hereby amended by substituting
the following addresses for Optionee:
If to Optionee:
c/o ZKS Real Estate Partners LLC
000 X. Xxxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
with a copy to:
Zurich Xxxxxx Life Companies
c/o ZKS Real Estate Partners LLC
000 X. Xxxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
with a copy to:
Xxxxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx
Section 2. Miscellaneous.
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a. All agreements, covenants, representations, warranties and other
provisions of this Amendment shall survive the Closing.
b. This Amendment shall be governed by the laws of the State of Illinois,
without reference to its conflicts of law or choice of law rules.
c. The terms and provisions of this Amendment shall be binding on the
successors and assigns of the parties hereto.
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d. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall not be necessary that any single
counterpart of this Amendment be executed by all of the parties hereto, so long
as each of such parties shall have executed the same or any other separate
counterpart hereof.
e. As used herein, the terms (i) "person" shall mean an individual, a
corporation, a partnership, a joint venture, a limited liability company, an
unincorporated organization, or a governmental body; (ii) "including" shall mean
including, without limiting the generality of the foregoing; and (iii) the
singular shall include the plural, and vice versa.
f. If any provision of this Amendment should be found to be invalid,
void, or unenforceable, then it is the intent of the parties hereto that the
remainder of this Amendment be enforced to the fullest extent possible in
accordance with the intentions of the parties.
g. The parties to this Amendment will execute and deliver such other
documents and instruments as may be reasonably requested by any other party to
cause, effect, accomplish, or evidence any of the transactions required by this
Amendment.
In Witness Whereof, the parties hereto have caused this Amendment to be
executed and delivered the day and year first above written.
KILICO REALTY CORPORATION, an Illinois
corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Authorized Signatory
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THE PRIME GROUP, INC., an Illinois corporation
By:
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Name:
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Title:
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d. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall not be necessary that any single
counterpart of this Amendment be executed by all of the parties hereto, so long
as each of such parties shall have executed the same or any other separate
counterpart hereof.
e. As used herein, the terms (i) "person" shall mean an individual, a
corporation, a partnership, a joint venture, a limited liability company, an
unincorporated organization, or a governmental body; (ii) "including" shall mean
including, without limiting the generality of the foregoing; and (iii) the
singular shall include the plural, and vice versa.
f. If any provision of this Amendment should be found to be invalid,
void, or unenforceable, then it is the intent of the parties hereto that the
remainder of this Amendment be enforced to the fullest extent possible in
accordance with the intentions of the parties.
g. The parties to this Amendment will execute and deliver such other
documents and instruments as may be reasonably requested by any other party to
cause, effect, accomplish, or evidence any of the transactions required by this
Amendment.
In Witness Whereof, the parties hereto have caused this Amendment to be
executed and delivered the day and year first above written.
KILICO REALTY CORPORATION, an Illinois
corporation
By:
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Name:
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Title:
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THE PRIME GROUP, INC., an Illinois corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: President
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SECOND AMENDMENT TO
OPTION TO PURCHASE PARTNERSHIP INTERESTS
THIS SECOND AMENDMENT TO OPTION TO PURCHASE PARTNERSHIP INTERESTS ("Second
Amendment") is made as of this 1st day of July, 1997 by KILICO Realty
Corporation, an Illinois corporation ("KRC" or "Optionor") and The Prime Group,
Inc., an Illinois corporation ("TPG" or "Optionee").
RECITALS
A. KRC and TPG have entered into that Option To Purchase Partnership
Interests entered into as of June 17, 1994 but made effective as of March 22,
1994 (the "Original Option").
B. KRC and TPG have also entered into that First Amendment to Option to
Purchase Partnership Interests entered into as of January 21, 1997 (the "First
Amendment") amending the Original Option (the Original Option and the First
Amendment shall be collectively referred to herein as the "Option Agreement").
C. KRC and TPG have also entered into that Agreement dated as of January
21, 1997 made by Xxxxxx Investors Life Insurance Company, an Illinois insurance
corporation ("KILICO"); Federal Xxxxxx Life Assurance Company, an Illinois
insurance corporation ("FKLA"); KRC; FKLA Realty Corporation, an Illinois
corporation ("FRC"); KR 77 Fitness Center, Inc., a Delaware corporation ("KR
Fitness"); 77 West Xxxxxx Limited Partnership, an Illinois limited partnership
("77 West"); TPG; Prime Group Limited Partnership, an Illinois limited
partnership ("PGLP"); and Prime 77 Fitness Center, Inc., an Illinois corporation
("Prime Fitness") (KILICO, FKLA, KRC, FRC, KR Fitness, 77 West, TPG, PGLP and
Prime Fitness shall be collectively referred to herein as the "Parties") (the
"Original Agreement").
D. KRC and TPG have also entered into that Amended and Restated Agreement
dated as of July 15, 1997 made by the Parties and K/77 Investors Limited
Partnership, and Illinois limited partnership (the "Amended Agreement"),
amending the Original Agreement. Terms defined in the Amended Agreement are
used with the same meanings in this Second Amendment.
E. As required by the Amended Agreement, KRC and TPG have agreed to enter
into this Second Amendment to amend certain provisions of the Option Agreement.
NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Second Amendment agree as follows:
Section 1. Amendments. The Option Agreement is hereby amended as follows:
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a. Section 1(b)(i) of the Option Agreement is hereby deleted in its
entirety and the following material substituted in lieu thereof:
(i) The Option shall expire if not exercised on or before five (5)
business days prior to the Outside Date (as defined in the
Amended Agreement), and the Optionee shall designate the closing
to occur no later than the Outside Date.
Section 2. Miscellaneous.
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a. Except as otherwise specifically modified herein, the Option Agreement
shall remain unchanged and in full force and effect and is hereby ratified in
all respects.
b. This Amendment shall be governed by the laws of the State of Illinois,
without reference to its conflicts of law or choice of law rules.
c. The terms and provisions of this Amendment shall be binding on the
successors and assigns of the parties hereto.
d. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall not be necessary that any single
counterpart of this Amendment be executed by all of the parties hereto, so long
as each of such parties shall have executed the same or any other separate
counterpart hereof.
e. As used herein, the terms (i) "person" shall mean an individual, a
corporation, a partnership, a joint venture, a limited liability company, an
unincorporated organization, or a governmental body; (ii) "including" shall mean
including, without limiting the generality of the foregoing; and (iii) the
singular shall include the plural, and vice versa.
f. If any provision of this Amendment should be found to be invalid,
void, or unenforceable, then it is the intent of the parties hereto that the
remainder of this Amendment be enforced to the fullest extent possible in
accordance with the intentions of the parties.
g. The parties to this Amendment will execute and deliver such other
documents and instruments as may be reasonably requested by any other party to
cause, effect, accomplish, or evidence any of the transactions required by this
Amendment.
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In Witness Whereof, the parties hereto have caused this Amendment to be
executed and delivered the day and year first above written.
KILICO REALTY CORPORATION, an Illinois
corporation
By: /s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
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Title: President
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THE PRIME GROUP, INC., an Illinois corporation
By:
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Name:
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Title:
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In Witness Whereof, the parties hereto have caused this Amendment to be
executed and delivered the day and year first above written.
KILICO REALTY CORPORATION, an Illinois
corporation
By:
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Name:
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Title:
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THE PRIME GROUP, INC., an Illinois corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Executive Vice President
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