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PNI TECHNOLOGIES, INC.
EXHIBIT 10.4
FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT ("Agreement") is made as of the 17th day of
May, 2001, (the "Effective Date") among PNI Systems, LLC, a Georgia limited
liability company (the "Company"), PNI Technologies, Inc., formerly known as
Preferred Networks, Inc., a Georgia corporation (the "Parent"), each of the
undersigned "Guarantors" and Bank of America, N.A., (the "Bank").
R E C I T A L S:
A. The Parent and the Company (hereinafter sometimes collectively referred
to as "Borrowers") and the Bank entered into that certain Credit Agreement dated
as of August 8, 1996 as amended by Amendments dated December 20, 1996, March 12,
1997, April 11, 1997, March 19, 1998 and November 12, 1998, an Agreement
concerning Amendment to Credit Agreement dated May 27, 1999 and a Second
Agreement concerning Amendment to Credit Agreement dated December 9, 1999 (as so
amended the "Credit Agreement").
B. The indebtedness and obligations of the Borrowers under and related to
the Credit Agreement (collectively the "Indebtedness") are secured by, among
other things, assets of each of the Guarantors.
C. The Indebtedness has matured because the Termination Date was March 31,
2001 under the Credit Agreement, and certain Events of Default have occurred and
are continuing under the Credit Agreement.
D. Borrowers and the Guarantors have requested that the Bank forbear from
exercising its rights and remedies under the Credit Agreement and the other
documents evidencing and securing the Indebtedness (collectively the "Loan
Documents") for a period of time specified herein in reliance upon the
covenants, representations and warranties of the Borrowers and Guarantors herein
and for other consideration.
E. Any capitalized term used herein and not herein defined shall have the
meaning set forth in the Credit Agreement.
A G R E E M E N T:
For and in consideration of the mutual covenants herein, Ten Dollars
($10.00), and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Borrowers, Guarantors and Bank agree as
follows:
1. Recitals. The foregoing recitals are confirmed by the parties
as true and correct and are incorporated herein by reference. The recitals are a
substantive, contractual part of this Agreement.
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2. No Waiver. The execution, delivery and performance of this
Agreement by Bank and the acceptance by Bank of performance of Borrowers and
Guarantors hereunder (a) shall not constitute a waiver or release by Bank of any
default that may now or hereafter exist under the Loan Documents, (b) shall not
constitute a novation of the Loan Documents and (c) except as expressly provided
in this Agreement, shall be without prejudice to, and is not a waiver or release
of, Bank's rights at any time in the future to exercise any and all rights
conferred upon Bank by the Loan Documents or otherwise at law or in equity,
including but not limited to the right to institute collection or arbitration
proceedings against Borrowers and/or Guarantors and/or to exercise any right
against any other person or entity not a party to this Agreement.
3. Forbearance. So long as this Agreement is not terminated
earlier as provided herein, Bank agrees not to foreclose or attempt to foreclose
upon any collateral securing the Indebtedness, institute suit or arbitration
proceedings for collection of the Indebtedness against Borrowers, or exercise
any other remedies available to it under the Loan Documents or the Credit
Agreement or under applicable law from the Effective Date until October 15, 2001
or the time in which this Agreement is terminated pursuant to paragraph 7 below
(collectively the "Termination Date"). The period of time from the Effective
Date through the Termination Date shall be referred to as the "Forbearance
Period". If all amounts due and owing under the Loan Documents are not paid in
full on or before the Termination Date or the earlier termination of this
Agreement, then Bank may seek to foreclose upon any collateral securing the
Indebtedness and to exercise any other remedies to which Bank may be entitled
under the Loan Documents or applicable law to collect amounts due under the Loan
Documents. Borrowers and Guarantors agree that neither Borrowers nor Guarantors
will, during the Forbearance Period, initiate any action of any kind against
Bank with respect to the Loan Documents, exercise any remedy available under the
Loan Documents or otherwise, or make any type of demand upon Bank with respect
to the Indebtedness.
4. Payments. On or before June 15, 2001 (the "Prepayment Date"),
Borrowers shall pay to Bank the sum of $500,000 as a principal reduction
("Principal Reduction") and all of Bank's fees and expenses in any way relating
to the Agreement. Upon payment of the Principal Reduction, the principal balance
of the Indebtedness outstanding shall be $1,389,000. Borrower agrees to pay
Lender an Exit Fee of $100,000 in lieu of the Exit Fee set forth at paragraph
2.8(f) of the Credit Agreement upon payment in full of the Parent Note, but
Lender will waive $75,000 of said fee and reduce the Exit Fee to $25,000 if the
Parent Note is paid in full prior to the Termination Date. If the Parent Note is
not paid in full prior to the Termination Date, the Exit Fee, at the Bank's
option, may be added as principal to the Parent Note and the terms of its
repayment will be governed thereunder.
From the Prepayment Date and throughout the balance of the Forbearance
Period, interest will continue to accrue and be computed on the principal
balance of the Indebtedness at the non-default rate set forth in the Credit
Agreement, but Borrowers shall not be required to pay such interest monthly
unless said interest is more than one hundred twenty days past due, at which
point Borrowers shall pay such interest sufficient to ensure that Borrowers are
no more than ninety days past due, it being the intent of the parties that the
first installment of interest
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due hereunder shall be paid on or before July 1, 2001 with monthly payments of
interest thereafter due on or before the first day of each month thereafter
until the Termination Date. On the Termination Date, all outstanding principal,
accrued interest, fees due under the Loan Documents and all expenses and late
fees owed shall be due and payable in full plus, thereafter. interest shall
accrue at the default rate of interest as defined in the Loan Documents. ALL
PAYMENTS DUE HEREUNDER ARE TO BE DELIVERED TO BANK BY WIRE TRANSFER PURSUANT TO
WIRE INSTRUCTIONS PROVIDED TO BORROWERS BY BANK OR IN THE ALTERNATIVE VIA
OVERNIGHT EXPRESS OR WIRE TRANSFER TO THE NOTICE ADDRESS SET FORTH IN THIS
AGREEMENT AND MUST BE RECEIVED BY THE DUE DATE OF SAID PAYMENT. TIME IS OF THE
ESSENCE.
5. Termination of Revolving Credit. From and after the Effective
Date, Borrowers shall have no further right to borrow and Bank shall have no
further obligation to lend any additional amounts pursuant to the Credit
Agreement. Any provisions in the Credit Agreement or the other Loan Documents
allowing Borrowers to borrow, re-pay and re-borrow funds are hereby terminated
and of no further force and effect. Any commitment of the Bank to lend money to
Borrowers is hereby terminated.
6. Borrowing Base Certificate. Borrower shall deliver to Bank by
the 10th day of each month during the Forbearance Period, a borrowing base
certificate ("Borrowing Base Certificate") in the form utilized in the Credit
Agreement, except as modified by this paragraph. During the Forbearance Period
and for purposes of preparing the foregoing Borrowing Base Certificate, the term
"Borrowing Base" shall mean at any time an amount equal to the sum of:
(a) 95% of the face value of the Eligible Receivables of
the Parent due and owing at such time, plus
(b) 95% of the face value of the Eligible Receivables of
the Company and other Subsidiaries of the Parent due
and owing at such time, plus
(c) the lesser of
(i) the sum of
(1) 90% of the lesser of cost (computed
on a first-in first-out basis) and
fair market value of Eligible
Inventory of the Parent at such
time, plus
(2) 90% of the lesser of cost (computed
on a first-in first-out basis) and
fair market value of Eligible
Inventory of the Company at such
time, and
(ii) $750,000.
Although Borrowers shall be required to deliver the Borrowing Base Certificate
to Bank monthly, except for the Principal Reduction required in paragraph 4
hereinabove, no principal prepayment or pay-down (as otherwise required in
section 2.11 of the Credit Agreement) shall be required to be made by Borrowers
during the Forbearance Period even if the Borrowing Base requirements have not
been met and such failure would otherwise trigger a prepayment or pay-down
obligation under the Credit Agreement.
7. Termination of this Agreement. This Agreement will terminate on the
Termination Date, unless terminated earlier by Bank, at Bank's sole option, upon
the occurrence of any of the following (the termination of this Agreement
pursuant to this paragraph shall be a "Termination Event"):
a. Either Borrower and/or any Guarantor files a (i) petition for
bankruptcy under any chapter of the Federal Bankruptcy Code or takes advantage
of any other debtor relief law, or (ii) an involuntary petition for bankruptcy
under any chapter of the Federal Bankruptcy Code is filed against either
Borrower and/or any Guarantor and is not
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dismissed for a period of 60 or more days, or (iii) any other judicial action is
taken with respect to either Borrower and/or any Guarantor by any creditor;
b. An Event of Default occurs under the Loan Documents or Credit
Agreement, except those as modified herein, or in paragraphs 8.1 and 8.2 and
2.8(f) of the Credit Agreement, on or after the Effective Date; or
c. Borrowers or Guarantors breach or default in performance of
any covenant or agreement contained in this Agreement.
Upon the earlier to occur of the Termination Date or a Termination Event, the
Indebtedness shall be and become immediately due and payable in full.
8. Acknowledgment of Default, Amounts Due and Maturity Date.
Bank, Borrowers and Guarantors acknowledge that (a) the aggregate outstanding
unpaid balance of the Indebtedness (including outstanding principal and accrued,
unpaid interest but excluding the fees and charges owed hereunder or under the
Loan Documents) as of May 15, 2001 is $1,928,196.70, of which $1,889,000
represents outstanding principal, and $39,196.75 represents accrued unpaid
interest, with interest accruing thereafter at the rate of $498.49 per diem at
the non-default rate of interest, and that reasonable attorney's fees and costs
of collection are or will be owed under the Loan Documents, and (b) the
Indebtedness has matured and is due and payable in full. Borrowers and
Guarantors waive any and all rights to other notice of payment default or any
other default, protest and notice of protest, dishonor, diligence in collecting
and the bringing of suit or arbitration proceedings against any party, notice of
intention to accelerate, notice of acceleration, demand for payment and any
other notices whatsoever regarding the Loan Documents, and further waive any
claims that any notices previously given are insufficient for any reason.
9. Limitation on Interest. No provision of this Agreement, any of
the Loan Documents, or any instrument evidencing or securing the Indebtedness,
or otherwise relating to the indebtedness evidenced by the Loan Documents, shall
require the payment or permit the collection, application or receipt of interest
in excess of the maximum rate permitted by applicable state or federal law. If
any excess of interest in such respect is herein or in any such other instrument
provided for, or shall be adjudicated to be so provided for herein or in any
such instrument, the provisions of this paragraph shall govern, and neither
Borrowers nor any Guarantor nor their respective heirs, personal
representatives, successors or assigns shall be obligated to pay the amount of
such interest to the extent it is in excess of the amount permitted by
applicable law. It is expressly stipulated and agreed to be the intent of
Borrowers and Bank at all times to comply with the usury and other laws relating
to the Loan Documents and any subsequent revisions, repeals or judicial
interpretations thereof, to the extent applicable to the Loan Documents. In the
event Bank ever receives, collects or applies as interest any such excess, such
amount which would be excessive interest shall be applied to the reduction of
the unpaid principal balance of the Indebtedness, and, if upon such application
the principal balance of the Indebtedness are paid in full, any remaining excess
shall be paid forthwith to Borrowers and the provisions of the Loan Documents
and any demand or other charging document shall immediately be deemed reformed
and the amounts thereafter collectible thereunder reduced,
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without the necessity of execution of any new document, so as to comply with the
then applicable law, but so as otherwise to permit the recovery of the fullest
amount called for thereunder. In determining whether or not the interest paid or
payable under any specific contingency exceeds the maximum rate of interest
allowed to be charged by applicable law, Borrowers and Bank shall, to the
maximum extent permitted under applicable law, amortize, prorate, allocate and
spread the total amount of interest throughout the entire term of the respective
loan so that the amount or rate of interest charged for any and all periods of
time during the term of the loan is to the greatest extent possible less than
the maximum amount or rate of interest allowed to be charged by law during the
relevant period of time. Notwithstanding any of the foregoing, if at any time
applicable laws shall be changed so as to permit a higher rate or amount of
interest to be charged than that permitted prior to such change, then unless
prohibited by law, references in the Loan Documents to "applicable law" for
purposes of determining the maximum interest or rate of interest that can be
charged shall be deemed to refer to such applicable law as so amended to allow
the greater amount or rate of interest.
10. Representations and Warranties. In order to induce Bank to
execute, deliver, and perform this Agreement, Borrowers and Guarantors warrant
and represent to Bank that:
(a) this Agreement is not being made or entered into with the actual intent
to hinder, delay, or defraud any entity or person;
(b) this Agreement is not intended by the parties to be a novation of the
Loan Documents and, except as expressly modified herein, all terms, conditions,
rights and obligations as set out in the Loan Documents are hereby reaffirmed
and shall otherwise remain in full force and effect as originally written and
agreed;
(c) no action or proceeding, including, without limitation, a voluntary or
involuntary petition for bankruptcy under any chapter of the Federal Bankruptcy
Code, has been instituted by or threatened against either of the Borrowers or
any Guarantors;
(d) the execution of this Agreement by Borrowers and Guarantors and the
performance by Borrowers and Guarantors of their obligations hereunder will not
violate or result in a breach or constitute a default under any agreements to
which any of them is a party;
(e) all information which is material to understanding the present
financial condition of the Borrowers or Guarantors which was provided by
Borrowers and Guarantors to Bank prior to the date hereof, including, without
limitation, all financial statements, balance sheets, and cash flow statements,
was, at the date of delivery, to the best of Borrowers' and Guarantors'
knowledge, true and correct in all material respects and was, except as
disclosed to Bank, prepared in accordance with GAAP. Borrowers and Guarantors
recognize and acknowledge that Bank is entering into this Agreement based in
part on the financial information provided to Bank by each of them and that the
truth and correctness of that financial information is a material inducement to
Bank in entering into this Agreement. During the term of this Agreement,
Borrowers and Guarantors agree to advise Bank
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promptly in writing of any and all new information, facts, or occurrences which
would in any way materially supplement, contradict, or affect any financial
statements, balance sheets, cash flow statements, or similar items furnished to
Bank;
(f) this Agreement and the Loan Documents constitute the entire agreement
among Bank, Guarantors and Borrowers with respect to this matter.
11. Waiver of Claims and Release. Borrowers and Guarantors warrant and
represent to Bank that the Indebtedness is not subject to any credits, charges,
claims, or rights of offset or deduction of any kind or character whatsoever.
Borrowers and Guarantors hereby release and discharge Bank and its predecessors,
successors, assigns, officers, managers, directors, shareholders, employees,
agents, attorneys, representatives, parent corporations, subsidiaries, and
affiliates (collectively referred to as "Affiliates"), jointly and severally
from any and all claims and causes of action, whether known or unknown and
whether now existing or hereafter arising, that have at any time been owned, or
that are hereafter owned, in tort or in contract by Borrowers or any Guarantors
or subsidiaries and that arise out of any one or more circumstances or events
that occurred prior to the date of this Agreement which Borrowers and Guarantors
had, may have or claim to have against Bank or Affiliates. Moreover, Borrowers
and Guarantors and subsidiaries, jointly and severally, waive any and all claims
now or hereafter arising from or related to any delay by Bank or Affiliates in
exercising any rights or remedies under the Loan Documents, including, without
limitation, any delay in foreclosing any collateral securing any of the
Indebtedness.
12. Bankruptcy.
(a) In entering into this Agreement, Borrowers, Guarantors and
Bank hereby stipulate, acknowledge and agree that Bank gave up
valuable rights and agreed to forbear from exercising legal
remedies available to it in exchange for the promises,
representations, acknowledgements and warranties of Borrower
and Guarantor as contained herein and that Bank would not have
entered into this Agreement but for such promises,
representations, acknowledgements, agreements, and warranties,
all of which have been accepted by Bank in good faith, the
breach of which by Borrower or Guarantor in any way, at any
time, now or in the future, would admittedly and confessedly
constitute cause for dismissal of any such bankruptcy petition
pursuant to 11 U.S.C. ss. 1112(b).
(b) As additional consideration for Bank agreeing to forbear from
immediately enforcing its rights and remedies under the Credit
Agreement and in the Loan Documents, including but not limited
to the institution of foreclosing proceedings, Borrowers and
Guarantors agree that in the event a bankruptcy petition under
any Chapter of the Bankruptcy Code (11 U.S.C. ss. 101, et
seq.) is filed by or against Borrowers at any time after the
execution of this Agreement, Bank shall be entitled to the
immediate entry of an order from the appropriate bankruptcy
court granting Bank complete relief from the automatic stay
imposed by ss. 362 of the Bankruptcy Code (11 U.S.C. ss. 362)
to exercise its foreclosure and other rights, including but
not limited to obtaining a foreclosure judgement and
foreclosure sale, upon the filing with the appropriate court
of a motion for relief from the automatic stay with a copy of
this Agreement attached thereto. Borrowers and Guarantors
specifically agree (i) that upon filing a motion for relief
from the automatic stay, Bank shall be entitled to relief from
the stay without the necessity of an evidentiary hearing and
without the necessity or requirement of the Bank to establish
or prove the value of the Property, the lack of adequate
protection of its interest in the Property, or lack of equity
in the Property; (ii) that the lifting of the automatic stay
hereunder by the appropriate bankruptcy court shall be deemed
to be "for cause" pursuant to ss. 362(d)(1) of the Bankruptcy
Code (11 U.S.C. ss. 362(d)(1)); and (iii) that Borrowers and
Guarantors will not directly or indirectly oppose or otherwise
defend against Bank's efforts to gain relief from the
automatic stay. This provision is not intended to preclude
Borrowers or Guarantors from filing for protection under any
Chapter of the Bankruptcy Code. The remedies prescribed in
this paragraph are not exclusive and shall not limit Bank's
rights under
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the Loan Documents, this Agreement or under any law.
(c) All of the above terms and conditions have been freely
bargained for and are all supported by reasonable and adequate
consideration and the provisions herein are material
inducements for Bank entering into this Agreement.
13. Miscellaneous.
(a) This Agreement may be executed in a number of identical
counterparts which, taken together, shall constitute collectively one (1)
agreement and any facsimile version of the signatures on the Agreement shall be
deemed to be originals; but in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart executed by
the party to be charged.
(b) Any future waiver, alteration, amendment or modification of
any of the provisions of the Loan Documents or this Agreement shall not be valid
or enforceable unless in writing and signed by all parties, it being expressly
agreed that neither the Loan Documents, or this Agreement can be modified
orally, by course of dealing or by implied agreement. Moreover, any delay by
Bank in enforcing its rights after an event of default shall not be a release or
waiver of the event of default and shall not be relied upon by the Borrowers or
Guarantors as a release or waiver of the default.
(c) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their heirs, executors, administrators,
successors, legal representatives, and assigns.
(d) The headings of paragraphs in this Agreement are for
convenience of reference only and shall not in any way affect the interpretation
or construction of this Agreement.
(e) THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
GEORGIA AND FEDERAL LAW, AS APPLICABLE.
(f) The warranties and representations of the parties in this
Agreement shall survive the termination of this Agreement.
(g) The terms and conditions set forth in this Agreement are the
product of joint draftsmanship by all parties, each being represented by
counsel, and any ambiguities in this Agreement or any documentation prepared
pursuant to or in connection with this Agreement shall not be construed against
any of the parties because of draftsmanship.
(h) For purposes of this Agreement and the Loan Documents, the
addresses for notice to Borrowers, Guarantors and Bank are as follows:
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PARENT COMPANY:
Xxxx X. Xxxxxxx
000 Xxxxxx Xxx
Xxxxxxxx, Xxxxxxx 00000
Fax: 770/000-0000
BANK:
Bank of America, N.A.
C/o Mr. Xxxxxxx Xxx
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Fax No. (000) 000-0000
Notice shall be in writing, and shall be deemed to have been given (i)
72 hours after being sent by certified or registered mail, return receipt
requested, postage prepaid and addressed as set forth above; or (ii) if by
personal delivery (a) to Borrowers or Guarantors, when personally delivered to
Borrowers or Guarantors or any other officer, partner, agent or employee of such
Borrowers or Guarantors at its respective address set forth above, or (b) if to
Bank, when personally delivered to an officer of the Commercial Bank Special
Assets Department of Bank at the address set forth above or (iii) if by
facsimile, upon transmission and receipt. Rejection or other refusal to accept
or inability to deliver because of a changed address of which no notice has been
received shall also constitute service of notice. Borrowers, Guarantors and Bank
may change such address by sending written notice to the other in accordance
with the foregoing; however, no written notice of change of address shall be
effective until the date of receipt thereof. The parties hereto agree that any
notice sent to the Borrowers or Guarantors shall be deemed notice to all general
partners in the event that the Borrowers or Guarantors is a partnership.
14. FINAL AGREEMENT. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT
AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR ORAL OR WRITTEN, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
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EXECUTED under seal as of the Effective Date.
BORROWERS
PNI TECHNOLOGIES, INC., a Georgia corporation
(f/k/a Preferred Networks, Inc.)
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
[CORPORATE SEAL]
PNI SYSTEMS, LLC, a Georgia limited liability
company
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer of PNI
Technologies, Inc., Manager of PNI Systems, LLC
[CORPORATE SEAL]
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GUARANTORS
PNI SPECTRUM, LLC HTB COMMUNICATIONS, INC.
By: Preferred Networks, Inc., its
Manager By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxx X. Xxxxxxx (seal)
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer [CORPORATE SEAL]
PNI GEORGIA, INC. M.P.C. DISTRIBUTORS, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
----------------------------------- ---------------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer Title: Chief Executive Officer
[CORPORATE SEAL] [CORPORATE SEAL]
MERCURY PAGING & CUSTOM PAGE, INC.
COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxxx
By: /s/ Xxxx X. Xxxxxxx ------------------------------
-------------------------- Name: Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx Title: Chief Executive Officer
Title: Chief Executive Officer
[CORPORATE SEAL]
[CORPORATE SEAL]
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LENDER
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X Xxx
--------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
[BANK SEAL]
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