EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
AZTEC TECHNOLOGY PARTNERS, INC.
AND
THE BANKS NAMED HEREIN
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APRIL 21, 2000
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of April
21, 2000 is by and among Aztec Technology Partners, Inc., a Delaware corporation
(the "Company"), Fleet National Bank ("Fleet"), as agent ("Agent") and the Banks
listed on EXHIBIT A hereto (together with their respective successors and
assigns, the "Banks").
WHEREAS, pursuant to a Third Amendment to Revolving Credit Agreement
dated as of Xxxxx 00, 0000, Xxxxx and the other Banks may become entitled to
receive warrants to purchase Common Stock of the Company (the "Warrants");
WHEREAS, the parties desire to enter into this Registration Rights
Agreement to provide for the holders of the Warrants certain arrangements with
respect to the registration of shares of capital stock of the Company under the
Securities Act of 1933;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth and other good and valuable consideration, the
parties hereto hereby agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
(a) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(c) "FORM S-1" means such form under the Securities Act as in
effect on the date hereof, or any registration form under the Securities Act
subsequently adopted by the SEC which permits the registration of securities
under the Securities Act for which no other form is authorized or prescribed.
(d) "FORM S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(e) The terms "REGISTER," "REGISTERED," and "REGISTRATION" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(f) "REGISTRABLE SECURITIES" means (i) the Common Stock issuable
or issued upon the exercise or conversion of the Warrants and (ii) any Common
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right, or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in
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replacement of, the shares described in (i) above, excluding in all cases,
however, any securities that have been sold in a public sale or other
transaction in which the rights under this Section 1 are not properly assigned.
(g) "SEC" shall mean the Securities and Exchange Commission.
(h) "TERMINATION DATE" has the meaning set forth in Section 1.8.
(i) "WARRANT HOLDER" means each Bank and any persons or entities
to whom the rights granted under this Section 1 are transferred by a Bank or as
permitted under Section 2 below.
1.2 REGISTRATION. The Company will, on or before May 1, 2000, file
with the SEC a registration statement on Form S-3 (or, if Form S-3 is not then
available to the Company for registration of the Registrable Securities, on Form
S-1 or any other form that is available) with respect to the resale of all the
Registrable Securities, and shall file such additional registration statements
as may from time to time be necessary for the registration of any Registrable
Securities as may not properly be included in the initial registration
statement, and will use its commercially reasonable efforts to cause such
registration statements to become effective as soon as possible thereafter (but
not before Warrants are issued) and to remain effective until the Termination
Date. Subject to receipt of the Warrant Holder's agreement described in Section
2.1, the Company will amend or supplement such registration statements within a
reasonable time after request, as may be necessary, to include the names of any
permitted transferee of the Registrable Securities as selling stockholders. Each
holder of Registrable Securities being registered on such registration
statements shall, as a condition thereof, provide the Company with all such
information about such holder and his or its proposed method of distribution as
the Company shall reasonably request to comply with the provisions of the
Securities Act and the rules of the SEC thereunder.
1.3 REGISTRATION PROCEDURES. In connection with the registration of
Registrable Securities, the Company shall, as expeditiously as reasonably
possible (but subject to providing counsel to the Warrant Holders with a
reasonable opportunity to review and comment on all documents):
(a) Prepare and file with the SEC a registration statement which
complies with the provisions of the Securities Act and the rules and regulations
of the SEC thereunder with respect to such Registrable Securities within the
time period specified in Section 1.2 above; thereafter use its commercially
reasonable efforts to cause such registration statement to become effective; and
keep such registration statement effective until the Termination Date with
respect to all Warrant Holders; provided, however, that if all dates upon which
the Banks may be entitled to receive Warrants under the Revolving Credit
Agreement dated as of July 27, 1998 (as amended and in effect from time to time,
the "Credit Agreement") by and among the Company, the Banks and BankBoston, N.A.
(now known as Fleet National Bank) as agent for the Banks (the "Agent"), shall
have expired without the Banks being entitled to receive Warrants, the Company
need not continue to keep such registration statement effective. Notwithstanding
the foregoing, not more frequently than once during any period of twelve
consecutive months, the Company may by written notice require the holders of
Registrable Securities not to sell, and the
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holders agree in such case not to sell, such securities under such registration
for a period specified by the Company (not to exceed twenty Business Days) (a
"Blackout Period"). After receipt by all Banks and holders of Registrable
Securities of a written request from the Company requesting an additional
Blackout Period and stating with sufficient detail the rationale for the request
and not made more than once every fourteen days (an "Additional Blackout
Request"), the Agent with the prior written consent of the holders of at least
80% of the Registrable Securities (or Banks holding at least 80% of the then
outstanding principal amount of the "Notes" issued under and as defined in the
Credit Agreement if no Warrants have been issued) may agree to additional
Blackout Periods, provided, however, that, for purposes of such consent, the
failure of any Bank or holder of Registrable Securities to respond to the Agent
regarding an Additional Blackout Request within five Business Days after receipt
of such Additional Blackout Request shall be deemed to be a consent to the
Blackout Period requested by the Additional Blackout Request. A Bank or holder
of Registrable Securities that does not wish to consent to an Additional
Blackout Request may within such five Business Day period so indicate in writing
to the Agent with a copy to the Company made in accordance with the notice
provisions of the Credit Agreement. After receipt of an Additional Blackout
Request, each holder of Registrable Securities agrees that it will not sell any
Registrable Securities under such registration for a period (a "Mini Blackout
Period") equal to the sum of (i) the lesser of (x) five Business Days after
receipt of such Additional Blackout Request or (y) the period from the date of
receipt of such Additional Blackout Request to the date when holders of more
than 20% of the Registrable Securities (or Banks holding more than 20% of the
outstanding principal amount of the "Notes" issued under and as defined in the
Credit Agreement if no Warrants have been issued) have indicated in writing to
the Agent that they do not wish to consent to the Blackout Period proposed by
such Additional Blackout Request, plus (ii) in the event such consent is not
given or deemed given, one additional Business Day.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement in accordance with each Warrant Holder's intended method
of disposition.
(c) Furnish to the Warrant Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by the Warrant Holders.
(d) Use its commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Warrant Holders and any managing underwriter; provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions, unless the Company is already subject to
service in such jurisdiction and except as may be required by the Securities
Act.
(e) Use its commercially reasonable efforts to prevent the
issuance of any stop order or other order suspending the effectiveness of a
registration statement covering Registrable
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Securities and, if such an order is issued, to obtain the withdrawal thereof at
the earliest possible time and to notify the Warrant Holder of the issuance of
such order and the resolution thereof;
(f) Promptly notify each Warrant Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and at the request of any such Warrant Holder, promptly prepare
and furnish to such Warrant Holder a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact required to be stated therein or necessary
to make the statements therein not misleading or incomplete in light of the
circumstances then existing.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
1.4 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Warrant Holder that such
Warrant Holder shall furnish to the Company such information regarding itself,
the Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Warrant
Holder's Registrable Securities.
1.5 EXPENSES OF REGISTRATIONS. The Company shall pay all expenses
other than underwriting discounts and commissions, incurred in connection with
registrations, filings, or qualifications pursuant to this Section 1, including
without limitation (i) all registration, filing, and qualification fees
(including, but not limited to, filing fees with the SEC and state securities
administrators, fees due to the National Association of Securities Dealers and
fees due for listing on any stock exchange or for qualifying for quotation on
the Nasdaq system); (ii) printing and accounting fees; (iii) fees and
disbursements of counsel for the Company; and (iv) the reasonable fees and
disbursements of a single counsel for the selling Warrant Holders.
1.6 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) BY THE COMPANY. The Company will indemnify each selling
Warrant Holder, each of its officers and directors and partners and each person
or entity controlling any such persons or entities within the meaning
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of Section 15 of the Securities Act, and each underwriter, if any, and each
person or entity who controls any underwriter within the meaning of Section 15
of the Securities Act, against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in the investigation or settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement,
prospectus, offering circular or other document executed in connection with the
foregoing, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, not misleading, or any violation by
the Company of any rule or regulation promulgated under the Securities Act, the
1934 Act or any state securities laws applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse each such selling
Warrant Holder and each other person or entity indemnified hereunder for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action; provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability, expense, or violation
arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
selling Warrant Holder or underwriter and stated specifically to be for use
therein, or any action or inaction required of any selling Warrant Holder in
connection therewith.
(b) BY EACH WARRANT HOLDER. Each selling Warrant Holder will
indemnify the Company, each of its directors and officers, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person or entity who controls the Company or such underwriter within the meaning
of Section 15 of the Securities Act, and each other such person or entity whose
securities are covered by such registration statement, each of its officers and
directors and each person or entity controlling such selling securityholder
within the meaning of Section 15 of the Securities Act, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by such selling Warrant Holder of any
rule or regulation promulgated under the Securities Act or any state securities
laws applicable to such selling Warrant Holder and relating to action or
inaction required of such selling Warrant Holder in connection with any such
registration, qualification or compliance, and will reimburse the Company and
each other person or entity indemnified hereunder for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document executed in connection with the
foregoing in reliance upon and in conformity with written information furnished
to the Company by such selling Warrant Holder and stated specifically to be for
use therein or such violation arises out of any action or inaction required of
such selling Warrant Holder in connection therewith; provided, however, that the
obligation of such selling Warrant Holder hereunder and under Section 1.6(d)
below shall be limited to an amount equal to the net proceeds received by such
selling Warrant Holder
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upon the sale of the Shares sold by such selling Warrant Holder in the offering
covered by such registration.
(c) NOTICE. Each party entitled to indemnification under this
Section 1.6 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld). The Indemnified Party may participate in such defense
at such party's expense; provided, however, that the Indemnifying Party shall
bear the expense of such defense of the Indemnified Party if representation of
both parties by the same counsel would be inappropriate due to actual or
potential conflicts of interest (as determined in good faith by the Indemnified
Party). The failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Agreement
unless the failure to do so materially prejudices the Indemnifying Party. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 1.6 is unavailable, then each Indemnifying Party shall contribute to the
amount paid or payable to such Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in this Section 1.6 an amount in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party or parties on the one hand and the Indemnified Party on the other in
connection with the statements or omissions which resulted in such losses,
claims, demands or liabilities as well as any other relevant equitable
considerations. Each Warrant Holder's obligation shall be limited as set forth
in Section 1.6 (b) above. Each Warrant Holder's obligation shall be several and
not joint with respect to any other Warrant Holder. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Indemnifying Party or
parties on the one hand or the Indemnified Party on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid to an Indemnified
Party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this Section 1.6(d) shall be deemed to include any legal
or other expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending any action or claim that is the subject of this
Section 1.6. No person or entity guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
(e) SURVIVAL. The obligations of the Company and Warrant Holders
under this Section 1.6 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Section 1.
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1.7 RULE 144 REPORTING. With a view to making available to the Warrant
Holders the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the SEC that may at any time permit a Warrant Holder
to sell securities of the Company to the public without registration or pursuant
to a registration on Form S-3, the Company agrees to use its commercially
reasonable efforts to:
(a) Make and keep public information available, as those terms
are understood and defined in SEC Rule 144 under the Securities Act;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act; and
(c) Furnish to any Warrant Holder, so long as the Warrant Holder
owns any Registrable Securities, forthwith upon request (i) a written statement
by the Company that it has complied with the reporting requirements of SEC Rule
144, the Securities Act and the 1934 Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
in availing any Warrant Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration or pursuant to
Form S-3.
1.8 TERMINATION OF REGISTRATION RIGHTS. Each Warrant Holder's rights
to require registration of Registrable Securities held by it as provided for in
this Section 1 shall terminate with respect to such Warrant Holder on the date
when the earliest of the following occurs (i) all such Registrable Securities
held by such Warrant Holder have been sold in a public offering pursuant to an
effective registration statement under the Securities Act or (ii) three years
and six months after the last date of issuance of the Warrants (the "Termination
Date").
2. TRANSFERS OF CERTAIN RIGHTS.
2.1. The rights granted to the Banks under Section 1 of this Agreement
may be transferred to (i) any holder of a Warrant exercisable for at least five
percent (5%) of the Registrable Securities, (ii) any other Bank or Affiliate,
subsidiary, partner, member or shareholder of any Bank, (iii) to any stockholder
or noteholder of any of the Banks who receives Registrable Securities in
connection with the liquidation of any Bank or (iv) any other person or entity
that acquires at least five percent (5%) of the Registrable Securities;
provided, however, that the transferee shall have executed an instrument
satisfactory to the Company agreeing to be bound by the obligations of his or
its transferor under this Agreement.
2.2. A transferee to whom rights are transferred pursuant to this
Section 2 may transfer such rights to any other person or entity, as provided in
Section 2.1 above.
2.3. Each Warrant shall bear a legend in substantially the following
form, in addition to any other legends that may be required under federal or
state securities laws:
"THE SHARES OF STOCK THAT WOULD BE ISSUED UPON EXERCISE OR CONVERSION
OF THIS WARRANT ARE SUBJECT TO A CERTAIN REGISTRATION RIGHTS AGREEMENT,
AS AMENDED FROM TIME TO TIME, AMONG THE COMPANY, THE REGISTERED OWNER
OF THIS
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WARRANT (OR ITS PREDECESSOR IN INTEREST) AND OTHERS, AND SUCH AGREEMENT
IS AVAILABLE FOR INSPECTION WITHOUT CHARGE AT THE OFFICES OF THE
COMPANY."
3. GENERAL.
3.1. NOTICES. All notices, requests, consents and other communications
under this Agreement shall be in writing and shall be delivered by hand, by
telecopier, by overnight mail or mailed by first class certified or registered
mail, return receipt requested, postage prepaid:
if to the Company: Aztec Technology Partners, Inc.
Attn: General Counsel
Xxxxx 000
00 Xxxxxxxxx Xxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to: Xxxx and Xxxx LLP
Attn: Xxxxxxxxx Xxxxxxxx, Esq.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
if to the Agent or a Bank: at its address set forth on EXHIBIT A to this
Agreement (or at such other address as may
have been furnished in writing to the Company
by the Agent or such Bank.)
with copies to: Xxxxxx & Dodge LLP
Attn: Xxxxxxx Xxxxxxxxxxx, Esq.
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Notices provided in accordance with this Section 3.1 shall be deemed
delivered upon personal delivery, receipt by telephonic facsimile or overnight
mail, or 48 hours after deposit in the mail, first class postage prepaid, in
accordance with the above.
3.2. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
3.3. AMENDMENTS AND WAIVERS. Except as otherwise expressly set forth in
this Agreement, any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and the holders of at
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least 80% of the Registrable Securities (or Banks holding at least 80% of the
then outstanding principal amount of the "Notes" issued under and as defined
in the Credit Agreement if no Warrants have been issued). No waivers of or
exceptions to any term, condition or provision of this Agreement, in any one
or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such term, condition or provision.
3.4. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.5. CAPTIONS. The captions of the sections, subsections and paragraphs
of this Agreement have been added for convenience only and shall not be deemed
to be a part of this Agreement.
3.6. SEVERABILITY. Each provision of this Agreement shall be
interpreted in such manner as to validate and give effect thereto to the fullest
lawful extent, but if any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or unenforceable under applicable law,
such provision shall be ineffective only to the extent so determined and such
invalidity or unenforceability shall not affect the remainder of such provision
or the remaining provisions of this Agreement.
3.7. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AZTEC TECHNOLOGY PARTNERS, INC.
By: /s/ Xxx Xxxxx
-----------------------------
Name: Xxx Xxxxx
Title: President
FLEET NATIONAL BANK, INDIVIDUALLY AND AS AGENT
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxxx X. Xxx
-----------------------------
Name: Xxxxx X. Xxx
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxxx Xxxxxx
Title: Sr. Vice President and
Group Head
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxxx X. Xxxx
-----------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. XxXxxxx
-----------------------------
Name: Xxxx X. XxXxxxx
Title: 1st Vice President
PEOPLE'S BANK
By: /s/ Dante Pazzine
-----------------------------
Name: Dante Pazzine
Title: Vice President
