WAIVER AND AMENDMENT NO. 4 TO CREDIT AGREEMENT
Exhibit 10.3
WAIVER AND AMENDMENT NO. 4 TO CREDIT AGREEMENT
This WAIVER AND AMENDMENT NO. 4 (this “Amendment”), dated as of February 9, 2010, to the
Credit Agreement, dated as of October 30, 2007 (as heretofore amended, supplemented or otherwise
modified, the “Credit Agreement”), among FA SUB 3 LIMITED, a British Virgin Islands Business
Company (the “Borrower”), GLG PARTNERS, INC. (formerly known as Freedom Acquisition Holdings,
Inc.), a Delaware corporation (the “Parent”), FA SUB 1 LIMITED, a British Virgin Islands Business
Company (“Holdco I”), FA SUB 2 LIMITED, a British Virgin Islands Business Company (“Holdco II”, and
together with Holdco I, the “Holdcos”, and together with the Borrower and Parent, the “GLG
Parties”), the financial institutions and other entities from time to time party thereto
as lenders (the “Lenders”) and CITICORP USA, INC. as agent for the Lenders and as agent for the
Secured Parties under the Collateral Documents (in such capacity, the “Administrative
Agent”).
W I T N E S S E T H:
WHEREAS, the Parent wishes to establish a subsidiary in Hong Kong (the “Hong Kong Subsidiary”)
the Stock of which will be owned by GLG Partners Services Limited in its capacity as general
partner of GLG Partners Services LP (“GPS LP”) to engage in the business of investment advisory,
asset management and securities trading activities; and
WHEREAS, the Parent may in the future establish one or more subsidiaries that will operate in
Switzerland, the United Arab Emirates, and the People’s Republic of China (the “Designated Future
Subsidiaries”, and, together with the Hong Kong Subsidiary, the “Designated New Subsidiaries”) to
engage in the business of investment advisory, asset management and/or securities trading
activities; and
WHEREAS, the Lenders party to this Amendment (constituting the Requisite Lenders), the GLG
Parties and the Administrative Agent have agreed, subject to certain limitations and conditions set
forth below, to waive and amend certain provisions of the Credit Agreement in connection with the
establishment of the Designated New Subsidiaries, as more specifically set forth below;
NOW, THEREFORE, in consideration of the premises and the covenants and obligations contained
herein the parties hereto agree as follows:
Section 1. Definitions; Rules of Construction
Except as otherwise expressly provided herein, capitalized terms used herein shall have the
meanings set forth in the Credit Agreement, and the rules of construction set forth in Sections 1.2
through 1.5 of the Credit Agreement shall apply to this Amendment.
Section 2. Waiver and Amendment
Each Lender party to this Amendment (each, a “Lender Party”):
(a) waives compliance with Section 8.9 of the Credit Agreement in connection with
any Investment by GPS LP in the Hong Kong Subsidiary;
(b) waives compliance with Section 8.9 of the Credit Agreement in connection with
any Investment by the Group Member that owns the Stock of a Designated Future Subsidiary (each, a
“Parent Company”) in such Designated Future Subsidiary;
(c) waives compliance with Section 8.3 of the Credit Agreement in connection with
equity Investments by GPS LP in the Hong Kong Subsidiary in an amount not to exceed U.S. $2,500,000
in the aggregate to comply with the paid-up capital and liquid capital requirements of the
Securities and Futures Commission of Hong Kong;
(d) waives compliance with Section 8.3 of the Credit Agreement in connection with
equity Investments by each Parent Company in the Designated Future Subsidiary owned by each Parent
Company in an amount not to exceed U.S. $2,500,000 in the aggregate for each such Designated Future
Subsidiary to comply with any applicable capital requirements imposed on such Designated Future
Subsidiary by any Governmental Authority;
(e) waives compliance with Sections 8.4 and 8.9 of the Credit Agreement in
connection with any Asset Sale by the Hong Kong Subsidiary to GPS LP of the Stock of the Hong Kong
Subsidiary; and
(f) waives compliance with Sections 8.4 and 8.9 of the Credit Agreement in
connection with any Asset Sale by each Designated Future Subsidiary to its Parent Company of the
Stock of such Designated Future Subsidiary.
Section 3. Additional Amendment
(a) Section 1.1 (Defined Terms) of the Credit Agreement is hereby amended by inserting the
following definitions in its proper alphabetical order therein:
“Amendment No. 4” means Amendment No. 4 to the Credit Agreement, dated as of February 9, 2010,
among the Administrative Agent, the Borrower, the Parent, the Holdcos, the Subsidiary Guarantors
and the Lenders party thereto.
“Designated Future Subsidiary” means a Subsidiary of a Group Member operating in Switzerland,
the United Arab Emirates or the People’s Republic of China and designated by the Borrower as a
“Designated Future Subsidiary” pursuant to Section 8.20(d)(i) (Designated New Subsidiaries);
provided, that there shall be no more than one “Designated Future Subsidiary” in each of
Switzerland, the United Arab Emirates and the People’s Republic of China.
“Designated New Subsidiary” means each Designated Future Subsidiary and the Hong Kong
Subsidiary.
“Hong Kong Subsidiary” means GLG Partners Hong Kong Limited, a company incorporated under the
Companies Ordinance of Hong Kong whose company number is 24925.
“Parent Company” means each Group Member that owns the Stock of a Designated New Subsidiary.
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(b) The definition of “Restricted Entity” set forth in Section 1.1. (Defined Terms) of the
Credit Agreement is hereby amended by deleting clause (b) through to the proviso thereof and
replacing it with the following:
“(b) following the Closing Date, (i) any other Subsidiary of the Parent acquired or
established in connection with a Permitted Acquisition and that is or becomes regulated by
a Governmental Authority in the European Economic Area (a “Permitted Regulated Entity”),
(ii) any other Subsidiary of the Parent that is established for the purpose of becoming
regulated by a Governmental Authority that has jurisdiction over investment advisory, asset
management, securities trading or similar business activities operating in Hong Kong,
Switzerland, the United Arab Emirates or the People’s Republic of China (together with a
Permitted Regulated Entity, “Regulated Entities”) or (iii) any other Subsidiary of the
Parent that a Governmental Authority having jurisdiction over a Regulated Entity deems part
of a consolidated group for the purposes of the consolidated supervision on a quantitative
basis of one or more such Regulated Entities;”
(c) Article VIII (Negative Covenants) of the Credit Agreement is hereby amended by inserting
the following as a new Section 8.20:
Section 8.20 Designated New Subsidiaries
Notwithstanding anything contained in this Agreement to the contrary:
(a) The Fair Market Value of Investments made by Group Members in any Designated New
Subsidiary shall not at any time exceed U.S. $2,500,000 in the aggregate.
(b) At no time shall any Parent Company cease to be a Loan Party and each Parent
Company shall comply at all times with the requirements of Section 7.11(c) (Additional
Collateral and Guaranties) with respect to the Stock and Stock Equivalents of each
Designated New Subsidiary.
(c) In the event that either (i) the Hong Kong Subsidiary does not become regulated by
a Governmental Authority overseeing investment advisory, asset management and/or securities
trading activities on or before the date 210 days after the Hong Kong Subsidiary becomes a
Subsidiary of GLG Partners Services LP (or such later date as the Administrative Agent may
agree) or (ii) at any time following the date that is 210 days after the Hong Kong
Subsidiary becomes a Subsidiary of GLG Partners Services LP (or such later date as the
Administrative Agent may agree), it ceases to be regulated by a Governmental Authority
overseeing investment advisory, asset management and/or securities trading activities, the
Hong Kong Subsidiary shall cease to be deemed a Restricted Entity and shall be required to
fully comply with Section 7.11 (Additional Collateral and Guaranties).
(d) Within 30 days (or such later time as may be agreed by the Administrative Agent)
of the formation of any Designated Future Subsidiary, the GLG Parties shall cause to be
delivered to the Administrative Agent: (i) a certificate of a Responsible Officer of the
Borrower designating such Designated Future Subsidiary a
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“Designated Future Subsidiary”, naming the Governmental Authority by which such
Designated Future Subsidiary is, becomes, or is established for the purpose of becoming,
regulated and stating the aggregate amount of equity Investments that must be made in such
Designated Future Subsidiary by its Parent Company in order to comply with any applicable
capital requirements imposed on such Designated Future Subsidiary by any Governmental
Authority, (ii) a pledge agreement governed by the law of the jurisdiction in which such
Designated Future Subsidiary was formed, duly executed by the Parent Company of such
Designated Future Subsidiary, with respect to the Stock of such Designated Future
Subsidiary, in form and substance satisfactory to the Administrative Agent, together with
all certificates, instruments and other documents representing Pledged Stock and undated
stock powers (or instruments of transfer, as applicable), with respect to the same, (iii)
legal opinions, in form and substance satisfactory to the Administrative Agent, of counsel
to the Loan Parties in the jurisdiction of the Designated Future Subsidiary and its Parent
Company, in each case addressed to the Administrative Agent and the Lenders addressing such
matters as the Administrative Agent may reasonably request and (iv) such other information
that the Administrative Agent may request in its reasonable discretion.
(e) If a Designated Future Subsidiary does not become regulated by a Governmental
Authority with jurisdiction over investment advisory, asset management, securities trading
or similar business activities operating in Switzerland, the United Arab Emirates or the
People’s Republic of China, as applicable, on or before the date that is 210 days after the
formation of such Designated Future Subsidiary, subject to extension by the Administrative
Agent, such Designated Future Subsidiary shall (i) be dissolved as promptly as possible or
(ii) cease to be deemed a Restricted Entity pursuant to the definition thereof (as amended)
and shall be required to fully comply with Section 7.11 (Additional Collateral and
Guaranties).
Section 4. Conditions Precedent to Effectiveness
This Amendment shall become effective when each of the following conditions precedent shall
have been satisfied or duly waived (the “Effective Date”):
(a) This Amendment shall have been executed and delivered by the GLG Parties and the
Requisite Lenders.
(b) The representations and warranties set forth in Section 5 hereof shall be true
and correct as of the Effective Date.
(c) The GLG Parties shall have paid all Obligations due, after giving effect to this
Amendment, on or before the later of the date hereof and the Effective Date including, without
limitation, the fees set forth in Section 6 hereof and all costs and expenses of the Administrative
Agent in connection with the preparation, reproduction, execution and delivery of this Amendment
and all other Loan Documents entered into in connection herewith (including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto and with respect to all other Loan Documents) and all other costs, expenses and fees due
under any Loan Document.
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(d) The Administrative Agent shall have received: (i) a pledge agreement, duly executed by GPS
LP, with respect to the Stock of the Hong Kong Subsidiary, in form and substance satisfactory to
the Administrative Agent, together with all certificates, instruments and other documents
representing Pledged Stock and undated stock powers (or instruments of transfer, as applicable),
with respect to the same and (ii) a favorable opinion, in form and substance satisfactory to the
Administrative Agent of counsel to the Loan Parties in the Cayman Islands and Hong Kong.
Section 5. Representations and Warranties
On and as of the Effective Date, after giving effect to this Amendment, the GLG Parties hereby
represent and warrant to the Administrative Agent and each Lender as follows:
(a) this Amendment is within the power and authority of and has been duly
authorized, executed and delivered by the GLG Parties;
(b) each of this Amendment and the Credit Agreement as amended hereby constitutes
the legal, valid and binding obligation of the GLG Parties, enforceable against the GLG Parties in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (whether enforcement is sought by proceedings
in equity or at law);
(c) each of the representations and warranties contained in Article IV
(Representations and Warranties) of the Credit Agreement, in the other Loan Documents or in any
certificate, document or financial or other statement furnished at any time under or in connection
therewith are true and correct in all material respects on and as of the Effective Date, in each
case as if made on and as of the Effective Date, except to the extent that such representations and
warranties specifically relate to a specific date, in which case such representations and
warranties shall be true and correct in all material respects as of such specific date; provided,
however, that references therein to the “Credit Agreement” shall be deemed to refer to the Credit
Agreement as amended and waived hereby;
(d) no Default or Event of Default has occurred and is continuing or would result
therefrom;
(e) no litigation has been commenced against any Loan Party or any of its
Subsidiaries seeking to restrain or enjoin (whether temporarily, preliminarily or permanently) the
performance of any action by any Loan Party required or contemplated by this Amendment, the Credit
Agreement or any other Loan Document, in each case as amended or waived hereby (if applicable); and
(f) subject to the approval of a license application, the Hong Kong Subsidiary will
be regulated by the Securities and Futures Commission of Hong Kong and for this reason cannot be a
Loan Party.
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Section 6. Fees and Expenses
(a) The GLG Parties agree to pay on demand in accordance with the terms of
Section 11.3 (Costs and Expenses) of the Credit Agreement all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution and delivery of this Amendment
and all other Loan Documents entered into in connection herewith (including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto and with respect to all other Loan Documents).
(b) The Borrower agrees to pay to the Administrative Agent, for the account of each Lender
consenting to this Amendment (other than the GLG Affiliate) from which the Administrative Agent
shall have received (by facsimile or otherwise) an executed copy of this Amendment by 12:00 p.m.
(New York time) on January 29, 2010 or such later date as the Administrative Agent and the Borrower
may agree (each, a “Consenting Lender”), a fee equal to 0.02% of such Consenting Lender’s
Commitment currently in effect.
Section 7. Reference to the Effect on the Loan Documents
(a) As of the Effective Date, each reference in the Credit Agreement to “this
Amendment,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the
other Loan Documents to the Credit Agreement (including, without limitation, by means of words like
“thereunder”, “thereof” and words of like import), shall mean and be a reference to the Credit
Agreement as amended hereby, and this Amendment and the Credit Agreement shall be read together and
construed as a single instrument.
(b) Except as expressly amended or waived hereby, all of the terms and provisions of
the Credit Agreement and all other Loan Documents are and shall remain in full force and effect and
are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders,
Arranger or the Administrative Agent under any of the Loan Documents, or constitute an amendment of
any other provision of any of the Loan Documents for any purpose except as expressly set forth
herein.
(d) This Amendment is a Loan Document.
Section 8. Execution in Counterparts
This Amendment may be executed in any number of counterparts and by different parties in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so that all signature
pages are attached to the same document. Delivery of an executed counterpart by telecopy or e-mail
shall be effective as delivery of a manually executed counterpart of this Amendment.
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Section 9. Consent of Guarantors
Each Guarantor hereby consents to this Amendment and agrees that the terms hereof shall not
affect in any way its obligations and liabilities under the Loan Documents (as amended and
otherwise expressly modified hereby), all of which obligations and liabilities shall remain in full
force and effect and each of which is hereby reaffirmed (as amended and otherwise expressly
modified hereby).
Section 10. Governing Law
This Amendment shall be governed by and construed in accordance with the law of the State of
New York.
Section 11. Section Titles
The section titles contained in this Amendment are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the parties hereto,
except when used to reference a section. Any reference to the number of a clause, sub-clause or
subsection of any Loan Document immediately followed by a reference in parenthesis to the title of
the section of such Loan Document containing such clause, sub-clause or subsection is a reference
to such clause, sub-clause or subsection and not to the entire section; provided, however, that, in
case of direct conflict between the reference to the title and the reference to the number of such
section, the reference to the title shall govern absent manifest error. If any reference to the
number of a section (but not to any clause, sub-clause or subsection thereof) of any Loan Document
is followed immediately by a reference in parenthesis to the title of a section of any Loan
Document, the title reference shall govern in case of direct conflict absent manifest error.
Section 12. Notices
All communications and notices hereunder shall be given as provided in the Credit Agreement
or, as the case may be, the Guaranty.
Section 13. Severability
The fact that any term or provision of this Amendment is held invalid, illegal or
unenforceable as to any person in any situation in any jurisdiction shall not affect the validity,
enforceability or legality of the remaining terms or provisions hereof or the validity,
enforceability or legality of such offending term or provision in any other situation or
jurisdiction or as applied to any person.
Section 14. Successors
The terms of this Amendment shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and assigns.
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Section 15. Waiver of Jury Trial
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT.
[Remainder of page intentionally left blank; signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
authorized signatories as of the day and year first above written.
| FA SUB 3 LIMITED, as Borrower |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| Guarantors: GLG PARTNERS, INC., as Parent |
||||
| By: | /s/ Xxxxxxxxx San Xxxxxx | |||
| Name: | Xxxxxxxxx San Xxxxxx | |||
| Title: | General Counsel & Corporate Secretary | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| FA SUB 1 LIMITED, as Holdco 1 |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| FA SUB 2 LIMITED, as Holdco 2 |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG FA SUB 4 LIMITED, as a Guarantor |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| MOUNT GARNET LIMITED, as a Guarantor |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| XXXX PINES LTD., as a Guarantor |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG PARTNERS SERVICES LIMITED, as a Guarantor |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| BETAPOINT CORPORATION, as a Guarantor |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG PARTNERS SERVICES LIMITED, acting as General Partner of GLG PARTNERS SERVICES LP, as a Guarantor |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG PARTNERS INTERNATIONAL (CAYMAN) LIMITED, as a Guarantor |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG PARTNERS CORP., as a Guarantor |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG PARTNERS SERVICES INTERNATIONAL LTD., as a Guarantor |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG HOLDINGS INC., as a Guarantor |
||||
| By: | /s/ Xxxx X. Small | |||
| Name: | Xxxx X. Small | |||
| Title: | President | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG INC., as a Guarantor |
||||
| By: | /s/ Xxxx X. Small | |||
| Name: | Xxxx X. Small | |||
| Title: | President | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG PARTNERS UK HOLDINGS LIMITED, as a Guarantor |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG PARTNERS UK GROUP LIMITED, as a Guarantor |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG FA SUB 5 S.À X.X, as a Guarantor |
||||
| By: | /s/ Laurent Heilliger | |||
| Name: | Laurent Heilliger | |||
| Title: | Manager | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| CITICORP USA, INC., as Administrative Agent and Lender |
||||
| By: | /s/ Xxxxxxxxx Xxxx | |||
| Name: | Xxxxxxxxx Xxxx | |||
| Title: | Managing Director | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| CREDIT AGRICOLE CIB, as Lender |
||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | Head of Client Service Unit | |||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| XXXXXX COMMERCIAL PAPER INC., as Lender |
||||
| By: | /s/ Xxxxx Xxx | |||
| Name: | Xxxxx Xxx | |||
| Title: | Vice President | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
| GLG FA SUB 5 S.À X.X, as Lender |
||||
| By: | /s/ Laurent Heilliger | |||
| Name: | Laurent Heilliger | |||
| Title: | Manager | |||
[SIGNATURE PAGE TO GLG WAIVER AND AMENDMENT #4]
