EXHIBIT 10.49
ALL INDEBTEDNESS EVIDENCED BY THIS NOTE IS SUBORDINATED TO OTHER INDEBTEDNESS
PURSUANT TO, AND TO THE EXTENT PROVIDED IN, AND IS OTHERWISE SUBJECT TO THE
TERMS OF, THE SUBORDINATION AND INTERCREDITOR AGREEMENT, DATED AS OF FEBRUARY
23, 1999, AS THE SAME MAY BE AMENDED, MODIFIED OR OTHERWISE SUPPLEMENTED FROM
TIME TO TIME (THE "SUBORDINATION AGREEMENT"), BY AND AMONG XX. XXXXXX XXXXXX,
MR. XXXX XXXXXX, EASYRIDERS, INC., NOMURA HOLDING AMERICA INC., AND CERTAIN OF
THE OTHER HOLDERS FROM TIME TO TIME OF THE OBLIGATIONS ARISING UNDER THE
SUBORDINATED NOTES REFERRED TO IN THE SUBORDINATION AGREEMENT, INCLUDING,
WITHOUT LIMITATION, THIS NOTE. THE TERMS OF THE SUBORDINATION AGREEMENT ARE
HEREBY INCORPORATED BY REFERENCE TO THIS NOTE AS IF SET FORTH IN FULL HEREIN.
BY MAKING AVAILABLE TO EASYRIDERS, INC. THE INDEBTEDNESS EVIDENCED BY THIS NOTE
(AND WHETHER OR NOT THE PROMISEE HAS EXECUTED AND DELIVERED THE SUBORDINATION
AGREEMENT), THE PROMISEE HEREBY AGREES THAT IT SHALL BE DEEMED TO HAVE EXECUTED
AND DELIVERED THE SUBORDINATION AGREEMENT AND TO BE BOUND BY ALL THE TERMS OF
THE SUBORDINATION AGREEMENT APPLICABLE TO THE "SUBORDINATED NOTEHOLDERS" (AS
DEFINED THEREIN). THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND MAY NOT BE SOLD, ASSIGNED,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS AND THE OTHER RESTRICTIONS SET FORTH HEREIN AND IN THE
SUBORDINATION AGREEMENT.
SUBORDINATED PROMISSORY NOTE
$352,306.00 February 23, 1999
FOR VALUE RECEIVED, Easyriders, Inc., a Delaware corporation ("Maker"),
promises to pay to Xxxx Xxxxxx ("Payee"), at the place and in the manner
specified below, the principal sum of Three Hundred Fifty-Two Thousand Three
Hundred and Six Dollars ($352,306.00), together with interest on the unpaid
principal balance hereof at the rate per annum set forth below.
SECTION 1. Definitions.
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"Business Day" means any day other than a Saturday, Sunday or a day on
which banks are required or authorized to be closed in the State of California.
"Events of Default" is defined in Section 4 of this Note.
"Indebtedness" means, with respect to the Maker, (i) any indebtedness of
such Maker, without duplication, whether or not contingent, in respect of
borrowed money or evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof) or
bankers' acceptances or representing capital lease obligations or the balance
deferred and unpaid of the purchase price of any property, as well as all
indebtedness of others secured by a lien on any asset of the Maker (whether or
not such indebtedness is assumed by the Maker) and (ii) to the extent not
included in clause (i), any guarantee by the Maker of any indebtedness of any
other person or entity.
"indefeasible payment in full" or any similar term or phrase when used in
this Note with respect to Senior Debt shall mean the final payment in full of
all Senior Debt in cash or in case of Senior Debt consisting of contingent
obligations under letters of credit, the setting apart of cash sufficient to
discharge such obligations in an account for the exclusive benefit of the
holders of such Senior Debt, in which account such holders shall have been
granted a perfected security interest, which payment and perfected security
interest shall have been retained by such holders for a period in excess of any
applicable preference or other similar period under applicable bankruptcy,
insolvency or creditors' rights law.
"Insolvency Proceeding" shall mean (i) any assignment for the benefit of
creditors by Maker or any other marshaling of the assets and liabilities of
Maker, or (ii) the institution by or against Maker of any proceedings in
insolvency, bankruptcy, receivership, liquidation, arrangement,
reorganization, dissolution, winding up or other similar case or proceeding,
whether voluntary or involuntary.
"Interest Payment Date" is defined in Section 2.2(b) of this Note.
"Note" means this Subordinated Promissory Note, as the same may be amended
from time to time.
"Obligations" means all of Maker's liabilities, obligations and
indebtedness to Payee under this Note (including, without limitation, Maker's
obligation to make payments of principal and interest to Payee hereunder),
whether now existing or hereafter arising.
"Payment Default" is defined in Section 4 of this Note.
"Person" means any person or entity (including, without limitation, a
corporation, limited liability corporation, partnership, trust or joint
venture).
"Rate" is defined in Section 2.2 of this Note.
"Senior Credit Agreement" shall mean the Note and Warrant Purchase
Agreement dated September 23, 1998 among the Maker Paisano Publications, Inc.
(as successor by merger to Easyriders Sub II, Inc.) and Nomura Holding America
Inc., as such agreement may be modified, amended, supplemented, restated,
extended, deferred, renewed, replaced, refunded or refinanced,
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in whole or in part, from time to time, and each instrument now or hereafter
evidencing, governing, guarantying or securing any Indebtedness under such Note
and Warrant Purchase Agreement, as such agreement may be modified, amended,
supplemented, restated, extended, deferred, renewed, replaced, refunded or
refinanced, in whole or in part, from time to time.
"Senior Creditors" shall mean the holders from time to time of the Senior
Debt of Maker.
"Senior Debt" shall mean all obligations and liabilities of Maker for the
payment of prin cipal, interest, penalties, fees and other amounts under or in
respect of (i) the Senior Credit Agreement (including without limitation the
contingent obligation of the Maker in respect of let ters of credit issued
pursuant thereto), and (ii) any other Indebtedness of the Maker, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is on a parity with or subordinated in right of payment to this Note. Without
limitation of the foregoing, Senior Debt shall include any claim by the Senior
Creditors for interest accruing after any Insol vency Proceeding or any claim
by the Senior Creditors for such interest which would have ac crued in the
absence of such Insolvency Proceeding, whether or not such interest is allowed
as a claim in such Insolvency Proceeding.
"Stock Contribution and Sale Agreement" means the Stock Contribution and
Sale Agreement dated June 30, 1998, by and among Maker, Payee, Newriders, Inc.,
Easyriders Sub II, Inc. and the Paisano Companies (as defined therein), as
amended from time to time.
Unless otherwise defined herein, terms used in the Stock Contribution and
Sale Agreement shall have the same meanings when used in this Note.
SECTION 2. Terms.
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SECTION 2.1 Repayment of Principal. Subject to Section 3 hereof, the
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principal balance of this Note shall be payable by Maker in lawful money of the
United States of America and in immediately payable funds on September 23, 2002
(the "Maturity Date").
SECTION 2.2 Interest; Payments.
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(a) Maker shall accrue interest on the unpaid principal amount
of this Note at a rate of thirteen percent (13%) per annum.
(b) Accrued interest on the outstanding principal amount of this
Note shall be paid in arrears on the Maturity Date. Interest hereunder shall be
computed on the basis of a year of 365 days for the actual number of days
elapsed. If any payment of principal or interest hereunder shall become due on a
day which is not a Business Day, such payment shall be due on the next
succeeding Business Day and such extension of time shall be included in
computing interest in connection with such payment. Both principal and interest
hereunder are payable to Payee by wire transfer to such account as Payee may,
from time to time, designate to Maker in writing.
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(c) Notwithstanding anything to the contrary contained herein,
Maker (i) may elect to prepay the outstanding principal amount of this Note,
together with accrued interest on the amount prepaid, at any time either in
whole or in part without penalty, together with accrued interest on the amount
prepaid and (ii) shall from time to time prepay as much of the outstanding
principal amount of this Note, together with accrued interest on the amount
prepaid, as is possible with (A) the proceeds of any Indebtedness incurred by
Maker after the date hereof in accordance with Section 10.1(h) of the Senior
Credit Agreement, (B) the proceeds of the issuance by Maker after the date
hereof of equity interests issued by the Maker meeting the requirements of
Section 10.8 of the Senior Credit Agreement or (C) the sale of any of the
assets, or all or part of the Capital Stock, of either of the Restaurant
Subsidiaries (as defined in the Senior Credit Agreement) so long as the net cash
proceeds received by either of the Restaurant Subsidiaries or the Parent from
such sale are not less than $3 million. Maker shall deliver written notice of
such prepayment to Payee at least ten (10) days prior to prepayment. Each notice
of prepayment delivered pursuant to this subsection (c) shall set forth the
amount of such prepayment and the proposed date of such prepayment. Upon payment
in full of this Note, Payee shall surrender this Note to Maker for cancellation.
Upon prepayment in part of principal, Payee shall make a notation of such
prepayment on the Schedule of Payments attached as Exhibit A hereto and deliver
a copy of such schedule to Maker. The aggregate unpaid principal amount set
forth on such schedule shall be rebuttably presumptive evidence of the principal
amount owing and unpaid hereunder, but the failure to record any such amount on
such schedule shall not limit or otherwise affect the obligation of the Maker
hereunder to make payments on this Note when due.
SECTION 3. Subordination
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SECTION 3.1 Nature of Subordination. Until the Senior Debt has been
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indefeasibly paid in full, Payee may not (i) except for payments pursuant to
Section 2(c) hereof, receive, directly or indirectly, any payment, advance,
credit, security or new or further evidence of any kind whatso ever on account
of or with respect to any of the obligations evidenced by this Note, (ii)
accelerate any amount owing with respect to this Note, (iii) xxx upon, take or
permit to be taken any action to assert, collect or enforce this Note, or (iv)
file or join in the filing of any petition to commence any Insolvency
Proceeding.
SECTION 3.2 Insolvency Proceedings.
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(a) Upon any distribution of assets of Maker to creditors of
Maker upon or in connection with an Insolvency Proceeding, any payment or
distribution of any kind (whether in cash, property or securities) which
otherwise would be payable or deliverable upon or with respect to the
obligations evidenced by this Note shall be paid or delivered directly to
the Senior Creditors for application (in case of cash) to, or as collateral
(in case of non-cash property or securities) for, the payment or prepayment
of the Senior Debt until the Senior Debt has been indefeasibly paid in
full.
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(b) If any Insolvency Proceeding is commenced by or against
Maker, the Senior Creditors are hereby irrevocably authorized and empowered
(in their own names or otherwise), but shall have no obligation, to (i)
demand, xxx for, collect and receive every payment or distribution referred
to in subsection (a) above and give acquittance therefor and (ii) file
claims and proofs of claim and take such other action (including without
limitation voting the obligations evidenced by this Note and enforcing any
security interest or other lien securing payment of this Note) as it may
deem necessary or advisable for the exercise of any of the rights or
interests of the Senior Creditors.
(c) If any Insolvency Proceeding is commenced by or against
Maker, Payee shall duly and promptly take such action as the Senior
Creditors may request to (i) collect the obligations evidenced by this Note
for the account of the Senior Creditors, and file appropriate claims or
proofs of claim in respect of the obligations evidenced by this Note, (ii)
execute and deliver to the Senior Creditors such powers of attorney,
assignments or other instruments as the Senior Creditors may request in
order to enable them to enforce any and all claims with respect to this
Note and any security interests and other liens securing payment of this
Note, and (iii) collect and receive any and all payments and distributions
which may be payable or deliverable upon or with respect to this Note.
SECTION 3.3 Liens. To the extent that Payee now has or hereafter obtains
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a lien or security interest in any assets of Maker:
(a) Such lien or security interest shall be at all times subject
and subordinate to any lien or security interest which the Senior Creditors
now have or hereafter obtain in such assets without regard to the time or
manner in which the respective liens and security interests of the parties
hereto may have been created or perfected; and
(b) Payee may not at any time exercise any rights or remedies
with respect to or otherwise enforce any lien or security interest it now
has or hereafter obtains in Maker's assets, or apply any assets covered by
any such lien or security interest to any claim now or hereafter existing
against Maker.
SECTION 3.4 Waivers. Maker and Payee waive notice of acceptance of this
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Note by the Senior Creditors, and Payee waives notice of and consents to the
making, amount and terms of (i) any loans or other extensions of credit which
the Senior Creditors may make to Maker from time to time, (ii) any renewal or
extension thereof and (iii) any action which the Senior Creditors may take or
omit in their sole and absolute discretion with respect thereto.
SECTION 3.5 Rights of the Senior Creditors.
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(a) This Subordinated Promissory Note shall constitute a
continuing agreement of subordination and the Senior Creditors may, from
time to time and without notice to Payee, lend money to or make other
financial arrangements with Maker in reliance hereon.
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(b) In the event that any payment or distribution, or any
security, proceeds thereof or property or funds payable as protection for
use, sale or lease of such security, is received by Payee, such property
shall be received and held in trust for the benefit of the Senior
Creditors, shall be segregated from other funds and property held by Payee,
and shall be immediately paid over to the Senior Creditors, as their
interests may appear, in the form received (together with any endorsements
or documents as may be necessary to effectively negotiate or transfer such
property) for application (in case of cash) to, or as collateral (in case
of non-cash property or securities) for, the payment or prepayment of the
Senior Debt.
(c) Payee authorizes the Senior Creditors, without notice or
demand and without affecting or impairing Payee's obligations hereunder,
from time to time to (i) renew, compromise, extend, increase, accelerate or
otherwise change the time for payment of, or otherwise change any of the
other terms of the Senior Debt or any part thereof, including without
limitation to increase or decrease the rate of interest thereon; (ii) take
and hold security for the payment of the Senior Debt and exchange, enforce,
waive, release and fail to perfect any such security; (iii) apply such
security and direct the order or manner of sale thereof as the Senior
Creditors in their sole discretion may determine; and (iv) release and
substitute any one or more endorsers, warrantors, Maker or other obligor.
The Senior Creditors may without notice assign their rights under this Note
in whole or in part to any other Senior Creditor.
(d) Payee acknowledges and agrees that it shall have the sole
responsibility for obtaining from Maker such information concerning Maker's
financial condition or business operations as Payee may require, and that
the Senior Creditors have no duty at any time to disclose to Payee any
information relating to the business operations or financial condition of
Maker.
(e) The Senior Creditors may notify any assignee, trustee or
interim trustee in bankruptcy, receiver, debtor in possession or other
person or persons of their rights under this Note.
(f) Neither Payee nor Maker shall amend, extend or otherwise
change the terms of this Note without the consent of the Senior Creditors.
(g) After the Senior Debt has been indefeasibly paid in full,
the Payee shall be subrogated to the rights of the Senior Creditors to
receive payments or distributions applicable to Senior Debt, to the extent
that distributions otherwise payable to Payee have been applied to the
payment of Senior Debt. Payee agrees that the provisions of this Section 3
shall not be affected by any action, or failure to act, by any Senior
Creditor which results, or may result, in impairing or extinguishing any
right of reimbursement, subrogation or other right or remedy of Payee.
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SECTION 3.6 Third Parties. The provisions of Section 3 of this Note are
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intended solely for the purpose of defining the relative rights of the Senior
Creditors and the Payee. Nothing contained in this Section 3 is intended to or
shall effect or impair (i) as between Maker, its creditors (other than the
Senior Creditors) and Payee, the obligation of Maker (which is absolute and
unconditional) to pay the obligations evidenced by this Note in accordance with
the terms hereof, and (ii) the relative rights of Payee and creditors of Maker
other than the Senior Creditors.
SECTION 3.7 Subsequent Holders. Any holder of this Note by such holder's
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acceptance of this Note agrees to be bound by, and take this Note subject to,
the rights of the Senior Creditors and the obligations of Payee set forth in
this Section 3.
SECTION 4. Events of Default; Acceleration. If any of the following
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events ("Events of Default") shall occur:
(a) Maker shall fail to pay the interest on and principal amount
of this Note on the Maturity Date;
(b) Maker makes an assignment for the benefit of creditors, or
admits in writing its inability to pay or generally fails to pay its debts as
they mature or become due, or petitions or applies for the appointment of a
trustee or other custodian, liquidator or receiver of Maker or of any
substantial part of the assets of Maker or commences any case or other
proceeding relating to Maker under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law of
any jurisdiction, now or hereafter in effect, or takes any action to authorize
or in furtherance of any of the foregoing, or if any such petition or
application is filed or any such case or other proceeding is commenced against
Maker and Maker indicates its approval thereof, consent thereto or acquiescence
therein; or
(c) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating Maker bankrupt or insolvent,
or approving a petition in any such case or other proceeding, or a decree or
order for relief is entered in respect of Maker in an involuntary case under
Federal bankruptcy laws as now or hereafter constituted, and such decree or
order remains in effect for more than sixty (60) days, whether or not
consecutive.
then Payee or Assignee may by notice in writing to Maker declare all amounts
owing with respect to this Note to be, and they shall thereupon forthwith mature
and become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by Maker.
Payee's failure at any time or times hereafter to require strict
performance by Maker of any of the terms, conditions and provisions contained in
this Note shall not waive, affect or diminish any right of Payee at any time or
times hereafter to demand strict performance thereof and such right shall not be
deemed to have been waived or modified by any act or knowledge of
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Payee, its agents, officers or employees, unless such waiver or modification is
contained in an instrument in writing signed by an officer of Payee and directed
to Maker specifying such waiver or modification. No waiver by Payee of any Event
of Default shall operate as a waiver of any other Event of Default or the same
Event of Default on a future occasion. No delay on the part of Payee in the
exercise of any right or remedy shall operate as a waiver thereof, and no single
or partial exercise by Payee of any right or remedy shall preclude other or
further exercise thereof or the exercise of any other rights or remedy.
If any Event of Default occurs, Maker shall pay on demand all reasonable
out-of-pocket expenses incurred or sustained by Payee in connection with the
enforcement or protection of the rights of Payee under this Note, including
costs of collection and the fees and disbursements of counsel.
SECTION 5. Miscellaneous.
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(a) This Note may not be assigned by Maker or Payee without the
express written consent of the other party.
(b) This Note may not be amended except by a writing signed by
Maker and Payee.
(c) Whenever in this Note there is reference made to either
Payee or Maker, such reference shall be deemed to include a reference to the
successors and permitted assigns of such party and the provisions of this Note
shall be binding upon and inure to the benefit of said successors and permitted
assigns.
(d) Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission or,
if mailed, two (2) days after the date of deposit in the United States mails as
follows:
To Maker:
Easyriders, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxx Fabregas
Fax No.: (000) 000-0000
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To Payee:
Xxxx Xxxxxx
00000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
(e) THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAW PRINCIPLES THEREOF. THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
CONSENT TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA AND OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF
CALIFORNIA (THE "CALIFORNIA COURTS") FOR ANY LITIGATION ARISING OUT OF OR
RELATING TO THIS NOTE (AND AGREE NOT TO COMMENCE ANY LITIGATION RELATING THERETO
EXCEPT IN SUCH COURTS), WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION IN THE CALIFORNIA COURTS AND AGREE NOT TO PLEAD OR CLAIM IN ANY
CALIFORNIA COURT THAT SUCH LITIGATION BROUGHT THEREIN HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(f) The Section and subsection titles contained herein are for
convenience only and shall not control or affect the meaning or construction of
any provision hereof.
(g) The invalidity or unenforceability of any provision of this
Note in any jurisdiction shall not affect the validity or enforceability of the
remainder of this Note in that jurisdiction or the validity or enforceability of
this Note, including that provision, in any other jurisdiction. If any
restriction or provision of this Note is held unreasonable, unlawful or
unenforceable in any respect, such restriction or provision shall be
interpreted, revised or applied in a manner that renders it lawful and
enforceable to the fullest extent possible under law.
(h) Nothing in this Note is intended or shall be construed to
give any Person other than the parties hereto any legal or equitable right,
remedy or claim under or in respect of this Note or any provision contained
herein.
(i) Upon receipt by Maker of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of this Note, Maker will make
and deliver a new Note of like tenor in lieu of this Note against receipt of
Payee's undertaking to indemnify Maker against and hold it harmless from all
reasonable costs arising as a result of its making and delivery of the new Note.
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This Note has been executed and delivered at Los Angeles, California, on
the date first above written.
EASYRIDERS, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
Secretary and Executive Vice President
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