EXHIBIT 10.1
FOURTH SUPPLEMENT TO
AMENDED AND RESTATED
AMENDMENT NO. 4 TO AND WAIVER NO. 1 UNDER
AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH SUPPLEMENT dated as of August 10, 2001 (this "SUPPLEMENT" or the
"FOURTH SUPPLEMENT") to Amended and Restated Amendment No. 4 to and Waiver No. 1
(the "BASIC WAIVER") dated as of March 21, 2001, as supplemented by the First
Supplement thereto (the "FIRST SUPPLEMENT") dated as of April 20, 2001, the
Second Supplement thereto (the "SECOND SUPPLEMENT") dated as of May 15, 2001 and
the Third Supplement thereto (the "THIRD Supplement") dated as of July 12, 2001
(taken together, the "EXISTING WAIVER") under the Amended and Restated Credit
Agreement dated as of December 11, 1998 (as heretofore amended or modified, the
"CREDIT AGREEMENT") among POLAROID CORPORATION (the "COMPANY"), the LENDERS
party thereto (the "LENDERS"), FLEET NATIONAL BANK (formerly known as
BANKBOSTON, N.A.), as Co-Agent, and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent (in such capacity, the "ADMINISTRATIVE AGENT") and
Collateral Agent.
W I T N E S S E T H :
WHEREAS, the Company and the Lenders entered into the Existing Waiver,
pursuant to which the Lenders granted certain interim waivers to the Company on
terms and conditions set forth therein;
WHEREAS, the Company has requested that the Lenders increase the Waiver
Availability Limit by $10,000,000 and extend the duration of the interim
waivers, as well as agree to certain other changes to the Credit Agreement; and
WHEREAS, the Company, in consideration for the Lenders making an
additional $10,000,000 of Loans available to it, which they are currently not
obligated to do, proposes to enter into the Principal Property Mortgages (as
defined below), which shall equally and ratably secure the Secured Parties, the
holders of the Notes and the lenders under the UK Credit Agreement; and
WHEREAS, except as otherwise expressly modified hereby, the terms of
the Existing Waiver (including those of the First Supplement, the Second
Supplement and the Third Supplement) are and will remain in full force and
effect, and the Company expressly acknowledges and confirms the continued
applicability of Section 3(c) of the Basic Waiver (after giving effect to the
modifications contained herein);
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS; REFERENCES. (a) Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
and is not defined in the Existing Waiver shall have the meaning assigned to
such term in the Credit Agreement. Unless otherwise specifically defined herein,
each term used herein which is defined in the Existing Waiver shall have the
meaning assigned to such term in the Existing Waiver. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Supplement becomes
effective, refer to the Credit Agreement as modified hereby for the period the
Existing Waiver remains in effect. Each reference to "hereof", "hereunder",
"herein" and "hereby" and each other similar reference to "this Waiver" and each
other similar reference in the Existing Waiver shall, after this Supplement
becomes effective, refer to the Existing Waiver as modified hereby for the
period the Existing Waiver remains in effect.
(b) As used herein and in the Credit Agreement, the following
additional terms have the following meanings:
"COMPANY INFORMATION" means the June 29 Meeting Materials and the
presentation made by the Company during the conference call with the Lenders on
August 7, 2001.
"PRINCIPAL PROPERTIES" means (a) the real property located at 000
Xxxxxxxx Xxxx., Xxx Xxxxxxx, Xxxxxxxxxxxxx, referred to as "the New Bedford
Campus" and also identified as XX-0, XX-0, XX-0, XX-0, XX Wastewater and NB-6
(including any portion sub-captioned as NB-6 (11X) and previously designated by
the Company as not a Principal Property), but not including the real property
located at Xxxx Vertrente Blvd., New Bedford, Massachusetts, previously
mortgaged as one of the Owned Properties, and (b) the real property located at
0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx, referred to as the "Waltham Main
Street Campus".
"PRINCIPAL PROPERTY MORTGAGES" means, collectively, Mortgages,
Assignments of Leases and Rents, Security Agreements and Fixture Filings to be
dated on or about August 10, 2001, pursuant to which the Company will mortgage
the Principal Properties, the lien of such Principal Property Mortgages to be
for the equal and ratable benefit of the Secured Parties, the holders of the
Notes and the lenders under the UK Credit Agreement and such Principal Property
Mortgages each otherwise to be in form and substance satisfactory to the
Administrative Agent.
"UK WAIVER" means, collectively, the Amendment and Waiver Agreements
dated March 26, 2001, May 15, 2001, July 12, 2001 and August 10, 2001, relating
to the UK Credit Agreement.
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SECTION 2. EXTENSION AND OTHER CHANGES TO TERMS OF THE EXISTING WAIVER.
The terms of the Existing Waiver are amended as follows.
(a) The definition of "Waiver Availability Limit" set forth in the
First Supplement and amended in the Second Supplement and the Third Supplement
is further amended to read as follows:
"WAIVER AVAILABILITY LIMIT" means (a) initially, $350,000,000;
(b) on and after the closing of the Sale, $316,000,000; and (c) on and
after August 14, 2001, $326,000,000; PROVIDED that (i) on each date on
which the Company makes a payment of rent pursuant to the Reservoir
Site Lease in accordance with Schedule 1 attached to the Third
Supplement, each of the amounts specified in clauses (b) and (c) shall
automatically be increased by the amount of such payment (rounded
downwards to the nearest multiple of $100,000), PROVIDED that the
aggregate amount of increase pursuant to this clause (i) shall not
exceed $7,000,000, and (ii) on each date on which the Company receives
(x) payment of any contingent purchase price payment from the Buyer as
contemplated by the Purchase and Sale Agreement, (y) a return of any
portion of its security deposit under the Reservoir Site Lease
(including by way of refund of any funds securing a letter of credit
issued for its account for such purpose or payment of a deferred
portion of the purchase price held in lieu of a cash security deposit)
or (z) a return of any portion of the funds securing the Company's
obligations under the letter of credit referred to in the DPW
Memorandum, each of the amounts specified in clauses (b) and (c) shall
automatically be decreased by the amount of such payment or return
(rounded upwards to the nearest multiple of $100,000).
The Lenders acknowledge and agree that a number of the payments of rent
under the Reservoir Site Lease referred to above have already been made, and
that such payments, as well as any future payments, are to be taken into account
in determining as of any day the actual amount in effect under clauses (b) and
(c) above.
The Company acknowledges and agrees that references in this definition
to periods after the Waiver Expiry Time are solely for purposes of memorializing
the Company's agreement with the Lenders on the subject of availability and
paydown of Loans under the Credit Agreement in such periods, and, as set forth
in Section 3(c) of the Basic Waiver, the Lenders are under no obligation to
extend, and in their sole and absolute discretion may refuse to extend, the
Waiver beyond the Waiver Expiry Time.
The Company further acknowledges and agrees that the willingness of the
Required Lenders to grant the amendments to the Waiver made hereby, and, INTER
ALIA, increase the Waiver Availability Limit by $10,000,000 in excess of the
principal amounts of Loans that the Company would otherwise be entitled to
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request, is expressly in exchange for the granting of Liens on additional
property pursuant to the Principal Property Mortgages.
Any references elsewhere in the Existing Waiver that refer to further
reductions in amount levels in this definition shall mean reductions from the
amount levels as amended by this subsection (a).
(b) The definition of "Cash Forecast" set forth in the Second
Supplement, which was amended by the Third Supplement, is further amended to
read as follows:
"CASH FORECAST" means the "Domestic Receipts and Disbursements
Forecast" attached to the Company's letter to the Administrative Agent
dated August 10, 2001 and covering the period from the week ending
August 10, 2001 through the week ending November 16, 2001, and showing
forecast cash receipts and disbursements of the Company and its
Domestic Subsidiaries (other than in respect of the principal amount of
any Loans, but including proceeds of asset dispositions) weekly, the
net difference (whether positive or negative, referred to herein as
"cash flow") and forecast cumulative net cash flow from the beginning
of such period through each succeeding week.
(c) In clause (a) of Section 3 of the Basic Waiver, as amended in the
Third Supplement, each of the references to "the June 29 Meeting Materials" is
replaced with a reference to "the Company Information" and the reference to
"Section 10 of the Third Supplement" is replaced with a reference to "Section 8
of the Fourth Supplement". In addition, the following new sentence is added at
the end of clause (a) of Section 3:
The Lenders party hereto also waive (including for purposes of
clause (c) of Section 3.03 of the Credit Agreement) any Default arising
as a result of (x) the representation and warranty contained in Section
4(b) of the Security Agreement being incorrect on account of one or
more Foreign Subsidiaries and one or more Domestic Subsidiaries (none
of which are Material Domestic Subsidiaries) not being listed on
Schedule 1 to the Security Agreement or (y) the Company having failed
to deliver the certificates representing the ownership interest in one
or more Foreign Subsidiaries or one or more Domestic Subsidiaries (none
of which are Material Domestic Subsidiaries).
(d) Clause (b) of Section 3 of the Basic Waiver, as amended in the
Third Supplement, is amended to read as follows:
(b) The foregoing waivers shall be effective solely for the
period (the "WAIVER PERIOD") beginning on February 16, 2001 and ending
at 5:00 P.M. (Eastern time) on November 15, 2001 or such earlier time
as
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is determined pursuant to Section 8 of this Waiver (the "WAIVER EXPIRY
TIME").
(e) The first paragraph of Section 4 of the Basic Waiver is amended to
read as follows:
The Company agrees that during the period from the date hereof
until 5:30 P.M. (Eastern time) on November 15, 2001 it will not give
any Notice of Borrowing, and the Lenders shall have no obligation to
fund any Borrowing of Loans, unless such Borrowing is in accordance
with the provisions of this Section 4 (and otherwise in compliance with
this Waiver and the Credit Agreement as modified hereby).
(f) The reference to "$5 million" in the fourth line of Section 6(a) of
the Second Supplement, having previously been amended to "$7.5 million" in the
Third Supplement, is further amended to read "$10.0 million".
(g) The body of Section 6 of the Third Supplement is replaced with the
following:
The Company agrees to prepare and deliver to the
Administrative Agent (with copies for each of the Lenders), promptly
and in any event no later than August 24, 2001, a revised operating
plan for the Fiscal Year 2001, which (x) shall be of comparable scope
and level of detail as the "Operating Plan" referred to in the Second
Supplement and (y) include projections and financial and other
information that are not materially more negative, taken as a whole,
than the projections and financial and other information contained in
the Company Information.
SECTION 3. PRINCIPAL PROPERTY MORTGAGES. The Company shall deliver to
the Collateral Agent no later than August 10, 2001 executed Principal Property
Mortgages, together with appropriate UCC forms for related fixture filings. The
Company agrees that it shall pay or provide for the payment of all costs and
expenses in connection with the granting, perfecting, recording and maintenance
of the Liens created by the Principal Property Mortgages, including the
preparation, execution, delivery, recordation or filing of the Principal
Property Mortgages or any related other documents that the Administrative Agent
may reasonably request in connection therewith. The Company also agrees that (a)
it shall as promptly as practical deliver to the Administrative Agent (after the
filing of the Principal Property Mortgages) such surveys, title commitments (but
not title insurance) and other documents as the Administrative Agent may
reasonably request relating to the creation and perfection and due recordation
of, and corporate authority for and validity of, the Principal Property
Mortgages, the name of the legal owner of the Principal Properties and the
accuracy of the legal description thereof, and any other matters relevant
thereto, all in form and substance reasonably satisfactory to the Administrative
Agent, and (b) promptly after the Principal Property Mortgages (and related UCC
forms) have been
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recorded or filed, it shall deliver to the Collateral Agent evidence of such
recordations and filings.
The Lenders party hereto acknowledge that the Principal Properties
include the parcel in New Bedford, Massachusetts identified as "NB-6(11X),"
which pursuant to Section 6(b) of the First Supplement was to have been
mortgaged in favor of the Secured Parties after the Company subdivided the
larger parcel of which it is a part, and hereby waive the requirements of
Section 6(b) of the First Supplement.
SECTION 4. CAPITAL EXPENDITURE COVENANT. Consolidated Capital
Expenditures will not, for each period beginning on January 1, 2001 and ending
on the last day of a fiscal month specified below, exceed the amount specified
for such fiscal month below:
FISCAL MONTH AMOUNT
August, 2001 $53,200,000
September, 2001 $61,200,000
October, 2001 $68,800,000
SECTION 5. OTHER CHANGES TO THE TERMS OF THE CREDIT AGREEMENT. (a)
Section 5.12 of the Credit Agreement is amended as follows:
(i) A new clause (l) is inserted following existing clause (k)
and before existing clause (l), to read as follows: "(l) Liens (A)
created by the Principal Property Mortgages and (B) Liens in favor of
the holders of the Notes (or the Trustee on their behalf) on any
Equipment (as defined in the Security Agreement) located at any
Principal Property; PROVIDED that any Liens pursuant to this clause (B)
must be junior in priority to the Liens securing the Secured
Obligations and otherwise subject to terms and conditions satisfactory
to the Administrative Agent;"
(ii) Existing clause (l) is renumbered as clause (m).
(iii) The two occurrences of "clause (b), (d) or (e) above" in
the third and fifth lines of the final paragraph of Section 5.12 are
amended to read "clause (b), (d), (e) or (l) above".
(b) The Company or any other Lien Grantor may from time to time sell,
transfer or otherwise dispose of any real estate assets that constitute
"Additional Collateral" as defined in the Security Agreement (which, for these
purposes, does not include the Principal Properties), without any requirement to
comply with Section 5.15 or 2.17 of the Credit Agreement, provided that the
gross cash proceeds of any such disposition must be at least equal to the fair
market
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value of the assets being disposed of. Concurrently with making any such
disposition, the Company shall deliver to the Administrative Agent a certificate
of its chief financial officer or treasurer describing in reasonable detail the
terms of such disposition and the assets being disposed of and stating the fair
market value of such assets and the Net Cash Proceeds of such disposition. The
Security Interests in such assets under the Collateral Documents shall terminate
automatically upon any such disposition, and the Collateral Agent is authorized
and directed to execute such releases and similar instruments as such Lien
Grantor or the Company may reasonably request to evidence the release of such
assets from the lien of the Collateral Documents. Concurrently with the
consummation of any such disposition, the amount levels in the definition of
Waiver Availability Limit shall automatically be decreased by 100% of the
related Net Cash Proceeds (rounded upwards to the nearest multiple of $100,000).
The Net Cash Proceeds of any such disposition shall be concurrently applied to
make any prepayment of Loans required by Section 4(d) of the Waiver or Section
3(b) of the First Supplement (as such requirements apply after giving effect to
the receipt of such Net Cash Proceeds).
SECTION 6. FINANCING DOCUMENT. The Company agrees that this Supplement
shall be considered a "Financing Document" for all purposes of the Credit
Agreement, including without limitation clause (e) of Section 6.01 thereof.
SECTION 7. RELEASE OF BANK LIABILITY. The Company, for itself and on
behalf of its affiliated entities, successors, assigns and legal representatives
(the "COMPANY PARTIES"), jointly and severally releases, acquits and forever
discharges the Administrative Agent, the Collateral Agent, the Co-Agent and each
Lender (collectively, the "BANK PARTIES"), and their respective subsidiaries,
parents, affiliates, officers, directors, employees, agents, attorneys,
successors and assigns, both present and former (collectively, the "BANKS'
AFFILIATES") from any and all manner of actions, causes of action, suits, debts,
controversies, damages, judgments, executions, claims and demands whatsoever,
asserted or unasserted, in contract, tort, law or equity which the Company or
any other Company Party has or may have against any of the Bank Parties and/or
the Banks' Affiliates by reason of any action, failure to act, matter or thing
whatsoever arising from or based on facts occurring prior to the date hereof,
including but not limited to any claim or defense that relates to, in whole or
in part, directly or indirectly, (i) the making or administration of the Loans,
including without limitation, any such claims and defenses based on fraud,
mistake, duress, usury or misrepresentation, or any other claim based on
so-called "lender liability theories", (ii) any covenants, agreements, duties or
obligations set forth in the Financing Documents, (iii) any actions or omissions
of any of the Bank Parties and/or the Banks' Affiliates in connection with the
initiation or continuing exercise of any right or remedy contained in the
Financing Documents or at law or in equity, (iv) lost profits, (v) loss of
business opportunity, (vi) increased financing costs, (vii) increased legal or
other administrative fees, or (viii) damages to business reputation.
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SECTION 8. REPRESENTATIONS OF THE COMPANY. The Company represents and
warrants that (i) the representations and warranties of the Company set forth in
Article 4 of the Credit Agreement will be true on and as of the Fourth
Supplement Effective Date and (ii) no Default will have occurred and be
continuing on such date, except in any case as expressly contemplated to be
waived by this Supplement and the Existing Waiver. Without limiting the
generality of the foregoing, the Company further represents and warrants that
all information (other than projections) heretofore furnished by the Company to
the Administrative Agent or any Lender for purposes of or in connection with
this Supplement does not, and all such information hereafter furnished by the
Company to the Administrative Agent or any Lender will not, contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were or will be made, not misleading, and all projections included in any
such information will be based upon good faith estimates and assumptions
believed by the Company's senior management to be reasonable at the time
delivered, and at the time delivered represent senior management's reasonable
best estimate of the future performance of the operations of the Company and its
Subsidiaries.
SECTION 9. CONSENT BY GUARANTORS. By its signature below, each
Guarantor (as defined in the Subsidiary Guaranty Agreement) hereby consents to
this Supplement, and acknowledges that this Supplement shall not alter, release,
discharge or otherwise affect any of its obligations under the Credit Agreement
or any Financing Document, and hereby ratifies and confirms all of the Financing
Documents to which it is a party.
SECTION 10. GOVERNING LAW. This Supplement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 11. COUNTERPARTS. This Supplement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 12. EFFECTIVENESS. (a) This Supplement shall become effective
as of the date hereof on the date (the "FOURTH SUPPLEMENT EFFECTIVE DATE") when
the Administrative Agent shall have received:
(i) from each of the Company, each Guarantor and the Required
Lenders a counterpart hereof signed by such party or facsimile or other
written confirmation (in form satisfactory to the Administrative Agent)
that such party has signed a counterpart hereof;
(ii) confirmation that the Company has paid the invoice of the
Collateral Agent delivered on August 9, 2001 and all statements of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Administrative Agent,
and Xxxxxxxx and Xxxxx, financial advisors, that have been rendered to
the Company at least one Domestic Business Day prior to the Fourth
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Supplement Effective Date in respect of this Supplement or other Credit
Agreement matters; and
(iii) evidence satisfactory to it that the lenders under the
UK Credit Agreement shall have waived any defaults thereunder until a
date no earlier than November 15, 2001, pursuant to a waiver containing
terms that, taken as a whole, are neither more favorable to those
lenders nor more restrictive or burdensome to the Company than
amendments or waivers previously or concurrently made to the Credit
Agreement.
(b) No later than the first Domestic Business Day after the Fourth
Supplement Effective Date, the Company shall pay the Administrative Agent, in
immediately available funds, a waiver fee in an amount equal to $100,000, to be
allocated among each Lender that has evidenced its agreement hereto as provided
in Section 12(a) by 5:00 P.M. (Eastern time) on the later of (x) August 9, 2001
and (y) the date the Administrative Agent issues a notice to the Lenders saying
this Supplement has become effective, in proportion to its Commitment (as of the
opening of business on the date hereof).
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be duly executed as of the date first above written.
POLAROID CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Title: Executive Vice President
and Chief Financial Officer
INNER CITY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President
and Chief Financial Officer
and Director
POLAROID ASIA PACIFIC LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President
and Chief Financial Officer
and Director
POLAROID LATIN AMERICA
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President
and Chief Financial Officer
and Director
POLAROID DIGITAL SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President
and Chief Financial Officer
and Director
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POLAROID EYEWEAR, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President
and Chief Financial Officer
and Director
POLAROID ID SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President
and Chief Financial Officer
and Director
POLAROID MALAYSIA LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President
and Chief Financial Officer
and Director
PRD CAPITAL INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President
and Chief Financial Officer
and Director
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Title: Vice President
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XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Title: Group Vice President
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Title: Group Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Title: Senior Vice President
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By: /s/
---------------------------
Title:
By: /s/
---------------------------
Title:
BANK ONE, NA
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title: Senior Vice President
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as investment advisor
By: /s/
---------------------------
Title:
SUMITOMO-MITSUI BANKING
CORPORATION
By: /s/ Xxx X. Xxxxxxxxx
---------------------------
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/ Xxxx X. Best
---------------------------
Title: Vice President
TEXTRON FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Title: Director
13
PNC BANK, NATIONAL ASSOCIATION
By: /s/
---------------------------
Title:
FOOTHILL INCOME TRUST, L.P.
By: /s/ Xxxx Xxxxxx
---------------------------
Title: Managing Member
ERSTE BANK NEW YORK
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------
Title: First Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/
---------------------------
Title:
XXXXXXX CAPITAL, LTD.
By: /s/
---------------------------
Title:
BARCLAYS BANK PLC
By: /s/
---------------------------
Title:
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CERBERUS PARTNERS, L.P.
By: /s/ Xxxxx Xxxxx
---------------------------
Title: Managing Director
XXXXXX COMMERCIAL PAPER INC.
By: /s/
---------------------------
Title:
X.X. XXXXXX SECURITIES INC., as agent
for The Chase Manhattan Bank
By: /s/ Xxxx X. Xxxxx
---------------------------
Title: Authorized Signatory
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