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Exhibit 10.24
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of October 26, 1998, is between and
among Wherehouse Subsidiary I Co., Inc., Wherehouse Subsidiary II Co., Inc., and
Wherehouse Subsidiary III Co., Inc., (each a "Borrower," and collectively, the
"Borrowers"), and United States Trust Company of New York, a New York banking
corporation, as collateral agent ("Collateral Agent") for BMG Distribution a/k/a
BMG Music, EMI Music Distribution, a division of Capitol Records, Polygram Group
Distribution, Inc., Relativity Entertainment Distribution, Inc., Sony Music
Entertainment, Inc., Universal Music and Video Distribution, Inc. and
Warner/Elektra/Atlantic Corporation and such other entities that are added
hereto pursuant to paragraph 15 (collectively "Trade Creditors").
WHEREAS, Wherehouse Entertainment, Inc. ("Wherehouse") has acquired all
the outstanding capital stock of Wherehouse Holding Corporation I (formerly
known as Blockbuster Music Holding Corporation) and Wherehouse Holding
Corporation II (formerly known as Blockbuster SC Holding Corporation)
(collectively the "Subsidiary Holding Companies"); and
WHEREAS, the Subsidiary Holding Companies own all of the capital stock
of the Borrowers; and
WHEREAS, Borrowers are obligated to Trade Creditors for the repayment of
certain indebtedness created by the extension of credit by each of the Trade
Creditors; and
WHEREAS, the parties hereto desire to secure the obligations of
Borrowers to Trade Creditors.
NOW, THEREFORE, intending to be legally bound, Borrowers, Trade
Creditors and Collateral Agent agree as follows:
1. Definitions.
Whenever used herein the following terms shall, unless the context
otherwise requires, have the following respective meanings:
(a) "Account" means any right to payment for goods sold or leased or for
services rendered which is not evidenced by an instrument or chattel paper.
(b) "Account Debtor" means the Person who is obligated on an Account or
Contract Right.
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(c) "Collateral" means for each Borrower, all of its now owned or
hereafter existing Inventory and all products and proceeds of Inventory, in any
form, including, without limitation, insurance proceeds and all claims against
third parties for loss or damage to or destruction of any or all of the
Inventory.
(d) "Contract Right" means any right to payment under a contract
(including, but not limited to, contracts for the sale or leasing of goods or
for the rendering of services) not yet earned by performance and not evidenced
by an instrument or chattel paper.
(e) "Document of Title" means a xxxx of lading, dock warrant, dock
receipt, warehouse receipt or order for the delivery of goods, and also any
other document which in the regular course of business or financing is treated
as adequately evidencing that the Person in possession of it is entitled to
receive, hold and dispose of the document and the goods it covers.
(f) "Interest Rate" means the prime rate as publicly announced from time
to time by First Union National Bank, or its successors, at its office in
Philadelphia, Pennsylvania, plus two (2) percent.
(g) "Inventory" means any and all of the following property in the
possession of the Borrowers: tangible personal property held for sale and raw
materials, work in process and materials used, produced or consumed in business,
and shall include tangible personal property sold on a sale or return basis,
tangible personal property returned by the purchaser following a sale thereof
and tangible personal property represented by Documents of Title, but shall not
include Rental Inventory.
(h) "Event of Default" shall have the meaning set forth in Section 12.
(i) "Liabilities" means all existing and future liabilities, whether
absolute or contingent, of each Borrower to Trade Creditors of any nature
whatsoever arising under the then existing and outstanding extension of credit.
(j) "Permitted Encumbrances" means (1) liens securing the payment of
taxes, either not yet overdue or the validity of which are being contested in
good faith by appropriate proceedings diligently pursued and available to each
Borrower and with respect to which adequate reserves have been set aside on its
books, (2) security and other deposits (including customs and revenue deposits)
in the ordinary course of any Borrower's business, (3) liens in favor of credit
card processors with respect to credit card receivables processed by them, and
(4) non-consensual statutory liens (other than liens securing the payment of
taxes) arising in the ordinary course of any Borrower's business.
(k) "Person" means an individual, a corporation, a government or
governmental subdivision or agency or instrumentality, a business trust, an
estate, a trust, a partnership,
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a cooperative, an association, two or more Persons having a joint or common
interest, or any other legal or commercial entity.
(l) "Proceeds" means whatever is received when Collateral or Proceeds of
Collateral is sold, exchanged, collected or otherwise disposed of and also
includes payments and rights to payment under any policies of insurance with
respect to any Collateral. The term includes the Account arising when the right
to payment is earned under a Contract Right representing such Proceeds and,
without limitation, any accounts receivable representing such Proceeds.
(m) "Rental Inventory" means all finished merchandise of Borrowers held
for rental to retail customers, provided that such merchandise has not been
reported previously to Collateral Agent as comprising part of Borrowers'
Inventory.
(n) "Required Trade Creditors" shall mean Trade Creditors that have
extended trade credit in a principal amount at least equal to 66.6% in principal
amount of the aggregate trade credit then extended by all Trade Creditors to a
Borrower or Borrowers, as applicable.
2. Grant of Security Interest.
To secure the payment, promptly when due, and the punctual performance
of all of its Liabilities, each Borrower hereby grants to Collateral Agent, for
the benefit of Trade Creditors, a continuing lien upon and security interest in
all of such Borrower's Collateral, subject only to the terms of that certain
Intercreditor and Subordination Agreement, dated as of October 26, 1998 (the
"Congress Intercreditor Agreement"), between and among Collateral Agent, Trade
Creditors and Congress Financial Corporation (Western), a California corporation
("Congress"). Each Borrower, at its expense, shall take such actions (including,
without limitation, the filing of Uniform Commercial Code financing statements)
as shall be necessary or appropriate to perfect, and maintain the perfection of,
the security granted hereby.
3. Records and Certifications.
Each Borrower shall faithfully keep complete and accurate books, records
and lists and make all necessary entries therein to reflect the quantities,
costs, current values and locations of its Inventory and the transactions and
facts giving rise to its Accounts and Contract Rights constituting Proceeds of
the Collateral, and each Borrower shall keep the Collateral Agent fully and
accurately informed as to the locations of all such books, lists and records.
Each Borrower shall permit Collateral Agent's agents to have access during
normal business hours to such books, lists and records on such Borrower's
premises for the purpose of examining, auditing and copying them. If a Borrower
refuses Collateral Agent access in accordance with this provision, then
Collateral Agent shall have the right to take
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possession of such books, lists and records, which right shall be enforceable by
an action of replevin or by any other appropriate remedy at law or in equity.
4. Title, etc.
Each Borrower has acquired absolute and exclusive title to each and
every item or unit of the Collateral free and clear of all liens, claims,
security interests and other encumbrances, except (x) the security interest
granted by such Borrower to Congress, (y) the security interest created hereby
in favor of Collateral Agent, for the benefit of Trade Creditors, and (z)
Permitted Encumbrances. Each Borrower will warrant and defend its title to the
Collateral, subject to the rights of Collateral Agent and Congress, against the
claims and demands of all other persons whomsoever. Without limiting the
generality of the foregoing, each Borrower will not pledge, assign or otherwise
encumber, or permit any liens or security interests to attach to, any of the
Collateral, nor permit any of the Collateral to be levied upon under any legal
process, other than those liens described above. Upon any breach of the
foregoing covenant against encumbrances, Collateral Agent may, at its sole
election but without obligation to do so, discharge the encumbrance for the
account of and without notice to such Borrower, and all expenses incurred by
Collateral Agent in so doing, together with interest thereon at the Interest
Rate, shall be added to the Liabilities and shall be payable by such Borrower on
demand. Without the prior written consent of Collateral Agent in each case, each
Borrower will not sell, exchange, lease, lend, salvage, replace or otherwise
dispose of any item or unit of the Collateral or any of Borrower's rights
therein, except that so long as such Borrower is not in default hereunder, such
Borrower shall have the right in the ordinary course of its business to process
and sell its Inventory and collect payment therefor in the ordinary course of
business and to return Inventory to the suppliers thereof in the ordinary course
of its business, in each case free and clear of the security interest in favor
of Collateral Agent granted herein.
5. Taxes and Liens.
Each Borrower will immediately notify Collateral Agent in the event
there ever arises against any of the Collateral any lien, assessment or tax or
other liability other than the lien of Congress, the lien created hereby in
favor of Collateral Agent or Permitted Encumbrances, whether or not entitled to
priority over Collateral Agent's security interest hereunder. In any such event,
whether or not such notice is given, Collateral Agent shall (unless such lien,
assessment, tax or other liability is the subject of an appeal by such Borrower
and an appropriate bond has been posted to stay the effect of any resulting
lien) have the right (but shall be under no obligation) to pay any tax or other
liability of such Borrower deemed by Collateral Agent in good faith to affect
Collateral Agent's interests hereunder. Each Borrower shall repay to Collateral
Agent on demand all sums which Collateral Agent shall have paid under this
section in respect of taxes or other liabilities of such Borrower, with interest
thereon at the Interest Rate, and such Borrower's liability to Collateral Agent
for such repayment with interest shall be included in the Liabilities.
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Collateral Agent shall be subrogated to the extent of any such payment by it to
all the rights and liens of the payee against such Borrower's assets.
6. Insurance.
Each Borrower shall bear all risk of loss, destruction and damage to any
and all of the Inventory from any cause whatsoever at any time during the term
of this Agreement, and shall at its own cost and expense obtain and keep in full
force and effect, with insurers of recognized standing in the financial
community or otherwise approved by Collateral Agent, all risk of physical loss
or damage insurance covering the Inventory wherever the same may be, insuring
against the risks of fire, explosion, theft and such other risks as are
customarily insured against by corporations engaged in the same business and
similarly situated with such Borrower (and specifically including vandalism and
malicious mischief coverage), in an amount or amounts usually carried by
corporations engaged in the same business and similarly situated with such
Borrower. All policies of such insurance shall be written for the benefit of
Borrower, Congress and Collateral Agent as the insured, shall bear an
endorsement naming Collateral Agent, Congress and Borrower as loss payees, as
their respective interests may appear, and shall provide for at least ten (10)
days' advance written notice to Collateral Agent of any cancellation. Collateral
Agent and each Borrower agree that all insurance proceeds shall be payable to
such Borrower if at the time of such payment no Event of Default then exists. A
copy of all such policies (or certificates therefor) shall be delivered to
Collateral Agent. If any Borrower fails to pay any premium on any such
insurance, Collateral Agent shall have the right, but shall be under no
obligation, to pay such premium for such Borrower's account. Each Borrower shall
repay to Collateral Agent on demand all sums which Collateral Agent shall have
paid under this section in respect of insurance premiums, with interest thereon
at the Interest Rate, and such Borrower's liability to Collateral Agent for such
repayment with interest shall be included in the Liabilities. Each Borrower
hereby assigns to Collateral Agent and Congress, as their interests may appear,
any return or unearned premium which may be due upon the cancellation for any
reason whatsoever of any policy of insurance maintained in respect of the
Collateral and hereby directs the insurer to pay Collateral Agent and Congress,
as their interests may appear, any amount so due, except that Collateral Agent
shall have no right to any such amount unless and until there exists an Event of
Default. Each Borrower's right to receive payment of any such return or unearned
premium and the proceeds of any such insurance shall constitute a part of the
Collateral to the extent allocable to Inventory that constitutes Collateral for
all purposes hereof.
7. Control of and Access to Inventory
Each Borrower shall maintain control of its Inventory at all times,
provided that upon the occurrence of an Event of Default, Collateral Agent shall
have the right to take possession of such Inventory as constitutes Collateral or
any portion thereof, subject only to the provisions of the Congress
Intercreditor Agreement, and for the purpose of taking custody of such
Inventory, each Borrower agrees that upon request of Collateral Agent it
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will lease warehousing space in such Borrower's own premises to Collateral Agent
and will erect such structures and post such signs as Collateral Agent may
require in order to place such Inventory under the exclusive control of
Collateral Agent. Notwithstanding any taking of possession by Collateral Agent
of any Inventory, the same shall remain at all times at such Borrower's sole
risk, and to the full extent permitted by law Collateral Agent shall not be
responsible for any loss, damage or diminution in the value thereof. If any of a
Borrower's Inventory constituting Collateral is or becomes evidenced by a
Document of Title, Collateral Agent may require such Borrower to promptly
deliver the same to Collateral Agent appropriately endorsed to the order of
Collateral Agent subject only to the provisions of the Congress Intercreditor
Agreement. All costs of transportation, packaging, custody, processing, storage,
insurance and salvage of any unit or item of any Borrower's Inventory which may
be incurred by Collateral Agent shall be promptly repaid to Collateral Agent by
such Borrower together with interest thereon at the Interest Rate, and such
Borrower's liability to Collateral Agent for such repayment with interest shall
be included in the Liabilities. Each Borrower will afford Collateral Agent's
agents reasonable access during normal business hours to such Borrower's
Inventory from time to time upon request for purposes of examination, inspection
and appraisal and to verify such Borrower's records pertaining thereto.
8. Notices of Loss, etc.
Borrowers will immediately notify Collateral Agent of any event causing
any material deterioration, loss or depreciation in value of such of any
Borrower's Inventory as constitutes the Collateral.
9. Accounts and Contract Rights.
(a) Collateral Agent hereby authorizes each Borrower to collect all
Accounts constituting Proceeds of Collateral from the Account Debtors. Upon the
occurrence of an Event of Default, Collateral Agent shall have the right, acting
if it so chooses in each Borrower's name, acting in a commercially reasonable
manner, to collect such Borrower's Accounts constituting Proceeds of the
Collateral itself, to sell, assign, compromise, discharge or extend the time for
payment of any Account, to institute legal action for the collection of any
Account, and to do all reasonable acts and things necessary or incidental
thereto; provided, however, that such rights shall be subject to the provisions
of the Congress Intercreditor Agreement. Each Borrower hereby ratifies all that
Collateral Agent shall do in accordance with the terms hereof. Collateral Agent
may at any time, after the occurrence of an Event of Default and subject to the
provisions of the Congress Intercreditor Agreement, notify any Account Debtor
that the Account constituting Proceeds of Collateral payable by such Account
Debtor has been assigned to Collateral Agent and is to be paid directly to
Collateral Agent. At Collateral Agent's request, after the occurrence of an
Event of Default and subject to the provisions of the Congress Intercreditor
Agreement, the applicable Borrower shall so notify Account Debtors and shall
indicate on all xxxxxxxx to Account Debtors that payments thereon are to be made
to Collateral Agent.
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10. Significant Locations.
Borrowers represent and warrant to Collateral Agent as follows: (i) the
chief executive office of each of the Borrowers is located in Los Angeles
County, California, and such chief executive office is the sole location where
Borrowers maintain the records with respect to the Collateral; (ii) the
locations set forth in Schedule A hereto are the only locations where Borrowers
store or process Inventory. Borrowers will notify Collateral Agent in writing
prior to any change in the locations specified above and will reimburse
Collateral Agent for the costs of any additional Uniform Commercial Code filings
requested by Collateral Agent as a result thereof. Each Borrower agrees to
notify Collateral Agent promptly in the event of a change in the location of any
place of business or the establishment of any additional place of business of
such Borrower.
11. Further Assurances; Information.
Without limiting any Borrower's obligations under paragraph 2 hereof,
each Borrower will execute and deliver to Collateral Agent from time to time all
such other agreements, instruments and other documents (including without
limitation all requested financing and continuation statements) and do all such
other further acts and things as Collateral Agent may reasonably request in
order to further evidence or carry out the intent of this Agreement or to
perfect the lien and security interest created hereby or intended so to be.
Borrowers will provide to Collateral Agent and each of Trade Creditors all
reports and appraisals relating to the Collateral required by Congress at the
same time such reports are delivered to Congress.
12. Default and Remedies.
Each and every Borrower shall be in default of this Agreement upon the
occurrence of any one or more of the following events (each an "Event of
Default"):
(1) the failure by a Borrower to observe any material provision
of this Agreement, which failure shall continue fifteen days
after written notice thereof provided by Collateral Agent; or
(2) notice to Collateral Agent by Required Trade Creditors for
any Borrower of the failure by such Borrower to observe any
material provision of any currently existing credit agreements
or arrangements between such Borrower and Required Trade
Creditors.
(3) notice to Collateral Agent by Required Trade Creditors for
any Borrower of the failure by Wherehouse to observe any
material provision of any currently existing credit agreements
or arrangements between Wherehouse and Required Trade Creditors.
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Upon the occurrence of any Event of Default which shall be continuing,
(i) upon notice by Collateral Agent to Borrowers, the entire unpaid amount of
such of the Liabilities as are not then otherwise due and payable shall become
immediately due and payable without notice to or demand on Borrowers or any
guarantor of any of the Liabilities (Borrowers and all such guarantors,
collectively, the "Obligors") and (ii) subject to the provisions of the Congress
Intercreditor Agreement, Collateral Agent may at its option exercise from time
to time any and all rights and remedies available to it under the Uniform
Commercial Code or otherwise, including the right to collect, assemble, receipt
for or foreclose or otherwise realize upon any of the Collateral and to dispose
of any of the Collateral at one or more public or private sales or other
proceedings, and each Borrower agrees that Collateral Agent or its nominee may
become the purchaser at any such sale or sales. Each Borrower agrees that ten
(10) days shall be reasonable prior notice of the date of any public sale or
other disposition of all or any part of the Collateral, or of the date on or
after which any private sale or other disposition of the same may be made.
Subject to the provisions of the Congress Intercreditor Agreement, all
rights and remedies granted Collateral Agent hereunder or under any other
agreement between Collateral Agent and Borrowers shall be deemed concurrent and
cumulative and not alternative, and Collateral Agent may proceed with any number
of remedies at the same time or at different times until all the Liabilities are
fully satisfied. The exercise of any one right or remedy shall not be deemed a
waiver or release of or an election against any other right or remedy, and
Collateral Agent may proceed against any one or more of the Obligors and the
Collateral and any other Collateral granted by each Borrower to Collateral Agent
under any other agreement, all in any order and through any available remedies.
A waiver on any one occasion shall not be construed as a waiver or bar on any
future occasion. All property of any kind held at any time by Collateral Agent
as Collateral shall stand as one general continuing collateral security for all
the Liabilities and may be retained by Collateral Agent as security until all
the Liabilities are fully satisfied.
13. Payment of Expenses
Borrowers will pay to Collateral Agent on demand any and all expenses
(including reasonable attorneys' fees and legal expenses) which may have been
incurred by Collateral Agent with interest at the Interest Rate (i) in
connection with the interpretation or enforcement of this Agreement, (ii) in the
prosecution or defense of any action growing out of or connected with the
subject matter of this Agreement, the Liabilities, the Collateral or any of
Collateral Agent's rights therein or thereto; or (iii) in connection with the
custody, preservation, use, operation, preparation for sale or sale of any of
the Collateral, the incurring of all of which are hereby authorized to the
extent Collateral Agent in good xxxxx xxxxx the same advisable or is directed to
do so by Trade Creditors. Borrowers' liability to Collateral Agent for any such
payment with interest shall be included in the Liabilities. The enumeration of
specific Events of Default shall not compromise the demand character of any
Liability which by its terms is payable on demand and demand may be made thereon
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at any time irrespective of the non-occurrence of any such Event of Default, any
provision hereof to the contrary notwithstanding. The Proceeds of any Collateral
received by Collateral Agent at any time before or after default, whether from a
sale or other disposition of Collateral or otherwise, or the Collateral itself,
may be applied with reasonable promptness to the payment in full or in part of
such of the Liabilities and in such order and manner as Collateral Agent may
elect or shall be directed by Trade Creditors. Each Borrower to the extent of
its rights in the Collateral waives and releases any right to require Collateral
Agent to collect any of the Liabilities from any other of the Collateral or any
other Collateral then held by Collateral Agent under any theory of marshaling of
assets or otherwise, provided, however, that Collateral Agent be subject to the
obligations of a Collateral Agent under the Uniform Commercial Code to act in a
commercially reasonable manner.
14. Power of Attorney.
Each Borrower hereby irrevocably appoints any officer, employee or agent
of Collateral Agent as such Borrower's true and lawful attorney-in-fact with
power, upon the occurrence of an Event of Default, to (i) endorse such
Borrower's name upon any notes, checks, drafts, money orders, or other
instruments of payment that may come into Collateral Agent's possession and
which constitute proceeds of any Collateral; (ii) sign and endorse such
Borrower's name upon any documents of title, invoices, freight or express bills,
assignments, verifications and notices in connection with any of the Collateral,
and any instruments or documents relating thereto or to such Borrower's rights
therein; and (iii) execute in such Borrower's name and file one or more
financing statements covering the Collateral. Any such attorney of such Borrower
shall have full power to do any and all things necessary to be done with respect
to the above transactions as fully and effectually as such Borrower might do,
and each Borrower hereby ratifies all that said attorney shall lawfully do or
cause to be done by virtue hereof.
15. Additional Trade Creditors
Each Borrower may add additional entities as Trade Creditors under this
Agreement in its discretion so long as any such additional Trade Creditor has
agreed to provide to the Borrowers in the aggregate, as of the date it is added,
with credit of $1,000,000 or more on terms acceptable to such Borrower. Such
additional Trade Creditor shall be added as a Trade Creditor under this Security
Agreement effective upon the delivery by such Borrower to Collateral Agent and
Congress of an (Agreement Regarding Additional Trade Creditor) - in the form
attached hereto as Exhibit A, executed by such Borrower and such additional
Trade Creditor. Upon delivery of such Agreement Regarding Additional Trade
Creditor, the entity designated therein as an Additional Trade Creditor shall be
deemed a Trade Creditor for all purposes under this Security Agreement, entitled
to all benefits and subject to all obligations set forth in this Security
Agreement. Notwithstanding anything herein to the contrary, this Section 15 may
not be amended without the consent of each Borrower.
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16. Miscellaneous.
(a) At no time during the past five years has any Borrower been known by
or used any name, including any trade or fictitious name, other than Blockbuster
Music Retail, Inc., Show Industries, Inc., Blockbuster SC Music Corporation, or
as set forth in the premises of this Agreement. A Borrower will give Collateral
Agent notice prior to any change in its name.
(b) This Agreement shall commence on the date hereof and shall continue
in full force and effect so long as any of the Liabilities shall exist from time
to time. If after the discharge of all Liabilities, any Borrower should
subsequently incur additional Liabilities, this Agreement shall automatically be
revived and thereafter continue in full force and effect until such time as such
Borrower, having no Liabilities then outstanding and not then being entitled to
incur any additional Liabilities, shall give written notice to Collateral Agent
of its election to terminate this Agreement.
(c) Absent manifest error, statements of account rendered to any
Borrower by Collateral Agent hereunder shall become final and be effective
unless objection thereto is made within thirty (30) days of receipt by such
Borrower.
(d) No modification or waiver of any provision hereof shall be effective
unless the same is in writing and signed by the party against whom its
enforcement is sought.
(e) This Agreement may be signed in any number of counterparts and by
different parties in separate counterparts, all with the same effect as if the
signatures were on the same counterpart, and all counterparts hereof, taken
together, shall constitute but one and the same Agreement.
(f) Words of any gender shall include any other gender, and singular
words shall include the plural and vice versa, whenever the same is necessary to
produce a fair and meaningful construction.
(g) All the rights and remedies of Collateral Agent hereunder shall be
cumulative with and not alternative to or in lieu of Collateral Agent's rights
and remedies under any other agreement or agreements.
(h) This Agreement shall bind and inure to the benefit of the parties
and their respective successors and assigns, except that a Borrower shall not
assign any of its respective rights hereunder without the prior written consent
of the other party hereto, which shall not be unreasonably withheld.
(i) Captions in this Agreement are included for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose.
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(j) Any provision hereof which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without affecting the validity or
enforceability of the remainder of this Agreement or the validity or
enforceability of such provision in any other jurisdiction.
(k) This Agreement and all issues arising hereunder shall be governed by
the laws of the State of California.
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IN WITNESS WHEREOF, this Agreement has been duly executed under due
authorization on the day and year first set forth above.
Wherehouse Subsidiary I Co., Inc. United States Trust Company of New
York, Collateral Agent
By: /s/ X.X. XXXXXXXX By: /s/ XXX XXXXX
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Title: S.V.P. - Chief Financial Title: Vice President
Officer
Wherehouse Subsidiary II Co., Inc.
By: /s/ X.X. XXXXXXXX
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Title: S.V.P. - Chief Financial
Officer
Wherehouse Subsidiary III Co., Inc.
By: /s/ X.X. XXXXXXXX
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Title: S.V.P. - Chief Financial
Officer
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