Exhibit 10.49
CONSENT TO ASSIGNMENT
THIS CONSENT TO ASSIGNMENT (this "Consent"), dated as of
August 1, 1995, is executed by SOUTHERN ELECTRIC INTERNATIONAL, INC., a Delaware
corporation (the "Consenting Party"), MOBILE ENERGY SERVICES COMPANY, L.L.C., an
Alabama limited liability company (the "Company"), and BANKERS TRUST (OF
DELAWARE), a Delaware banking corporation, as Collateral Agent for the Senior
Secured Parties (as hereinafter defined) (the "Collateral Agent").
W I T N E S S E T H:
WHEREAS, the Company, Mobile Energy Services Holdings, Inc.
(formerly known as Mobile Energy Services Company, Inc.), an Alabama
corporation ("Mobile Energy"), and First Union National Bank of
Georgia, as trustee (in such capacity, the "Indenture Trustee"), have
entered into a Trust Indenture dated as of August 1, 1995 (as the same
may be amended, supplemented, waived or otherwise modified, the
"Indenture"), pursuant to which the Company (i)is issuing its First
Mortgage Bonds, the proceeds of which will be used to (among other
things) repay to The Southern Company a portion of the amounts advanced
to pay certain costs associated with the acquisition of the energy and
black liquor recovery complex located at an integrated pulp, paper and
tissue manufacturing facility in Mobile, Alabama (together with the
related real property rights and other related assets of the Company,
the "Energy Complex") and (ii) may, from time to time, issue additional
Senior Debt (as defined in the Indenture);
WHEREAS, the Company, Mobile Energy and The Industrial
Development Board of the City of Mobile, Alabama (the "IDB") have
entered into an Amended and Restated Lease and Agreement dated as of
August 1, 1995 with respect to a portion of the Energy Complex relating
to the IDB's Solid Waste Revenue Refunding Bonds (Mobile Energy
Services Company, L.L.C. Project), Series 1995, to be issued for the
benefit of the Company pursuant to an Amended and Restated Trust
Indenture dated as of August 1, 1995 (as the same may be amended,
supplemented, waived or otherwise modified, the "Tax-Exempt Indenture")
between the IDB and First Union National Bank of Georgia, as trustee
(in such capacity, the "Tax-Exempt Trustee"). The proceeds of the
Tax-Exempt Bonds will be used to refinance certain outstanding
tax-exempt bonds and to pay for certain other costs. The Company may
cause the IDB to issue, from time to time, additional Senior Debt under
the Tax-Exempt Indenture;
WHEREAS, the Company and Banque Paribas (together with any
lender that is or becomes a provider of the Working Capital Facility
(as hereinafter defined), the "Working Capital Facility Provider" and,
together with the Indenture Trustee and the Tax-Exempt Trustee, the
"Senior Secured Parties") have entered into a Revolving Credit Facility
dated as of August 1, 1995 (as the same may be amended, supplemented,
waived or otherwise modified and, together with any replacement working
capital facility, the "Working Capital Facility"), borrowings under
which will be used from time to time to finance certain working capital
requirements of the Company;
WHEREAS, the Consenting Party and Mobile Energy have entered
into a Facility Operations and Maintenance Agreement dated as of
December 12, 1994 (as the same may be amended, supplemented, waived or
otherwise modified, the "Contract");
WHEREAS, pursuant to an Omnibus Deed, Bill of Sale, General
Assignment and Conveyance Agreement dated as of July 14, 1995 between
Mobile Energy and the Company, Mobile Energy has assigned to the
Company, and the Company has assumed, all of Mobile Energy's rights and
obligations under the Contract (the "Omnibus Transfer");
WHEREAS, the Collateral Agent has been granted a security
interest in the Contract and the Energy Complex for the benefit of the
Senior Secured Parties pursuant to an Assignment and Security Agreement
dated as of August 1, 1995 between the Collateral Agent and the Company
and a Leasehold Mortgage, Assignment of Leases, Rents, Issues and
Profits dated as of August 1, 1995 between the Collateral Agent and the
Company; and
WHEREAS, the Collateral Agent, the Senior Secured Parties, the
IDB, the Company and Mobile Energy have entered into a Intercreditor
and Collateral Agency Agreement dated as of August 1, 1995 (as the same
may be amended, supplemented, waived or otherwise modified, the
"Intercreditor Agreement").
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the parties hereto
hereby agree as follows (except as otherwise expressly provided in this Consent
to Assignment or unless the context otherwise required, all terms used herein
having the meanings set forth in Appendix A to the Intercreditor Agreement).
1. Consent to Assignment. The Consenting Party hereby
irrevocably consents to the assignment of the Contract by Mobile Energy to the
Company and the Company's assignment of the Contract to the Collateral Agent as
security; and the Consenting Party shall, at the Collateral Agent's request in
the exercise of its rights as Collateral Agent, continue performance under the
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Contract in accordance with its terms and the terms of this Consent to
Assignment.
2. No Defaults. The Consenting Party represents and warrants
to, and agrees with, the Collateral Agent that (a) the Consenting Party shall
perform and comply with all material terms and provisions of the Contract
applicable to it, (b) the Contract is in full force and effect and there are no
amendments, modifications or supplements thereto, either oral or written, (c)
other than by entering into subcontracts in the ordinary course of business, the
Consenting Party has not assigned, transferred or hypothecated any of its right,
title and interest in and to the Contract or any interest therein, (d) the
Consenting Party has no knowledge of any default by the Company or Mobile Energy
in any respect in the performance of any provision of the Contract or of any
existing claims or rights of set-off by the Consenting Party or any of its
affiliates against the Company or Mobile Energy, (e) each of the Company and
Mobile Energy has fulfilled all of its material obligations under the Contract
required to be performed on or prior to the date hereof and there are no
material breaches or unsatisfied conditions presently existing (or that, with
the giving of notice or the passage of time or both, would exist) or that would
result from the consummation of any transaction contemplated by the Contract or
this Consent to Assignment to take place on the date hereof that would allow the
Consenting Party to terminate this Consent to Assignment or the Contract, (f) to
the best knowledge of the Consenting Party, none of the Company's or Mobile
Energy's rights under the Contract has been waived, (g) the assignment by Mobile
Energy of the Contract to the Company did not, and the security assignment of
the Contract by the Company to the Collateral Agent, and the acknowledgment of
and consent to such assignments by the Consenting Party, will not, cause or
constitute a default under the Contract or an event or condition that, with the
giving of notice or the passage of time or both, would constitute a default
under the Contract and (h) a foreclosure or other exercise of remedies under the
Financing Documents (as defined in the Indenture) or any sale thereunder by the
Collateral Agent or any of its designees or assignees, whether by judicial
proceedings or under any power of sale contained therein, or any conveyance from
the Company or the Collateral Agent or any such designee or assignee, in lieu
thereof, shall not cause or constitute a default under the Contract or an event
or condition that, with the giving of notice or the passage of time or both,
would constitute a default under the Contract.
3. Notice of Termination, Transfer, Etc.. (a) The
Consenting Party will not, without the prior written consent of
the Collateral Agent, (i) cancel, suspend or terminate the
Contract, except as provided in the Contract and in accordance
with Section 3(b) hereof, or consent to or accept any
cancellation, suspension or termination thereof by the Company
(other than upon the stated expiration of the term of the
Contract), (ii) sell, assign or otherwise dispose of (by
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operation of law or otherwise) any part of its interest in the Contract, other
than by entering into subcontracts in the ordinary course of business, (iii)
amend or modify the Contract in any respect that may reasonably be expected to
have a material adverse effect on the Company's rights or obligations or (iv)
claim prevention of or interference with performance of its obligations under
the Contract, except as otherwise set forth in Section 3(b). The Consenting
Party agrees to deliver duplicates or copies of all (i) notices of default
delivered by the Consenting Party under or pursuant to the Contract to the
Collateral Agent promptly upon delivery thereof to the Company (and the
Consenting Party agrees that no such notice of default shall be effective until
received by the Collateral Agent) and (ii) amendments to the Contract (and the
Consenting Party agrees that no such amendment shall be effective until received
by the Collateral Agent).
(b) The Consenting Party will not exercise any right it may
have under the Contract, at law or in equity, to cancel, suspend or terminate
the Contract (other than upon the stated expiration of the term of the Contract
or at the option of the Consenting Party on six (6) months notice pursuant to
Section 8.2 of the Contract) or any of its obligations thereunder on account of
any default, breach or other act or omission of the Company thereunder without
(i) in the case of a default by the Company that is the failure by the Company
to pay amounts to the Consenting Party that are due and payable under the
Contract, first providing to the Collateral Agent written notice of such
default, breach or other act or omission and the greater of (A) the cure period
specified in such Contract and (B) ninety (90) days from the date such notice is
received by the Collateral Agent to pay such amounts (provided that,
notwithstanding the foregoing, the Consenting Party may suspend performance
under the Contract within thirty (30) days) and (ii) in the case of a default,
breach or other act or omission that cannot be cured by the payment of money to
the Consenting Party, first providing to the Collateral Agent written notice of
such default, breach or other act or omission and the greater of (A) the cure
period specified in such Contract and (B) one hundred eighty (180) days from the
date such notice is received by the Collateral Agent to cure such breach or
default so long as the Collateral Agent or its designee shall have commenced to
cure such breach, default or other act or omission within ninety (90) days and
thereafter diligently pursues such cure to completion or, with respect to any
default, breach or other act or omission that is not susceptible of being cured
by the Collateral Agent, to rectify, to the Consenting Party's reasonable
satisfaction, the effect on the Consenting Party thereof within one hundred
eighty (180) days from the date such notice is received by the Collateral Agent.
If possession of the Energy Complex (by way of foreclosure proceedings or
otherwise) is necessary to cure such breach, default or other act or omission,
the Collateral Agent or its successor, transferee or assignee will be allowed a
reasonable additional period to complete such proceedings or otherwise
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accomplish such possession, provided that in no event shall such additional
period exceed ninety (90) days and provided that the Collateral Agent or its
successor, transferee or assignee proceeds diligently throughout such additional
period to accomplish such possession.
If the Collateral Agent or its successor, transferee or
assignee is prohibited by any court order or bankruptcy or insolvency
proceedings from curing the default, breach or other act or omission or from
commencing or prosecuting foreclosure proceedings, the foregoing time periods
shall be extended by the period of such prohibition. The Consenting Party
consents to the transfer of the Company's interest under the Contract to the
Collateral Agent for the benefit of the Senior Secured Parties or a purchaser or
grantee at a foreclosure sale by judicial or nonjudicial foreclosure and sale or
by a conveyance by the Company in lieu of foreclosure and agrees that, upon such
foreclosure, sale or conveyance, the Consenting Party shall recognize the
Collateral Agent or such other purchaser or grantee as the applicable party
under the Contract so transferred, provided that the Collateral Agent or such
purchaser or grantee assumes the obligations of the Company under such Contract.
The notice specified in this Section 3(b) shall be in writing
and shall be addressed to the Collateral Agent as set forth below or to such
other address as the Collateral Agent may have specified by written notice
delivered in accordance herewith. Such notice shall be effective (a) if by
telecopier, when transmitted to the telecopier number specified herein and
received at such number, (b) if by registered or certified mail, postage
prepaid, return receipt requested, on the third business day after delivered to
a United States post office and a receipt therefor is issued thereby or (c) if
by any other means, when delivered to the specified address:
Bankers Trust (Delaware)
c/o Bankers Trust Company
Four Albany Street, 4th Floor
New York, New York 10006
Attention: Corporate Trust and Agency Group
Telecopier No.: 212-250-6961
Failure of the Consenting Party to provide such notice to the Collateral Agent
shall not constitute a breach of this Consent to Assignment, and the Collateral
Agent agrees that the Consenting Party shall have no liability to the Collateral
Agent for such failure whatsoever; provided, however, that no cancellation,
suspension or termination (other than upon the stated expiration of the term of
the Contract) of the Contract by the Consenting Party, or of any of the
Consenting Party's obligations thereunder by the Consenting Party, shall be
binding upon the Collateral Agent without such notice and the expiration of the
applicable cure period set forth in this Section 3(b).
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4. No Previous Assignment. Except for the Omnibus Transfer
above and for the assignment contemplated by this Consent to Assignment, the
Consenting Party represents and warrants to the Collateral Agent that it has no
actual notice of any assignment of the Contract and that it has not previously
consented to any assignment, transfer or hypothecation of the Contract or any
interest therein by the Company, other than subcontracts entered into in the
ordinary course of business.
5. Payments to Revenue Account. The Consenting Party hereby
agrees that, until the Collateral Agent has given the Consenting Party written
notice that the obligations secured by the Contract have been paid, observed and
satisfied in full, all payments to be made by the Consenting Party pursuant to
the terms of the Contract shall be made directly to the Collateral Agent, c/o
Bankers Trust Company, for deposit into the Revenue Account established and
created under the Intercreditor Agreement (Account No. 15351), at Bankers Trust
Company, Four Albany Street, New York, New York 10006, or to such other person
or at such other address as the Collateral Agent may from time to time specify
in writing to the Consenting Party. By executing this Consent to Assignment, the
Company hereby directs the Consenting Party to make all payments due to the
Company under the Contract directly to the Collateral Agent, c/o Bankers Trust
Company, or such other person as provided for above until the Consenting Party
has received the notice referred to in the first sentence of this Section 5.
6. Protection of Collateral Agent. In the event that
(a) either (i) the Company's interest in the Energy Complex shall
be sold, assigned or otherwise transferred pursuant to the
exercise of any right, power or remedy by the Collateral Agent or
pursuant to judicial proceedings or (ii) the Company rejects the
Contract under the Federal Bankruptcy Code, or other similar
Federal or state statute, and such rejection is approved by the
appropriate bankruptcy court or is otherwise effective pursuant
to such statute and (b) in either case (i) all funds payable
under the Contract shall be paid to the Consenting Party, (ii)
the Collateral Agent shall have cured any material default or
breach by the Company under the Contract that is susceptible of
being corrected by the Collateral Agent or by a purchaser at any
judicial or non-judicial sale, (iii) the Contract shall have been
terminated pursuant to the terms thereof by reason of a default
or a rejection in bankruptcy under the Federal Bankruptcy Code,
or other similar Federal or state statute, and (iv) the effect
upon the Consenting Party of any default not susceptible of being
corrected shall have been rectified, to the Consenting Party's
reasonable satisfaction, then the Consenting Party shall, within
fifteen (15) days after receipt of written request therefor,
execute and deliver to the Collateral Agent or its nominee,
purchaser, assignee or transferee (as the case may be) an
agreement containing the same terms (including with respect to
termination by the Consenting Party) as the Contract so
terminated for the remainder of the term thereof. References in
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this Consent to Assignment to "Contract" shall be deemed also to refer to such
new agreements.
7. Acknowledgment of the Collateral Agent's Obligations and
Rights. None of the Collateral Agent, the Senior Secured Parties or the IDB has
any obligation hereunder to extend credit to the Consenting Party or any
contractor of the Consenting Party at any time for any purpose. None of the
Collateral Agent, the Senior Secured Parties or the IDB shall have any
obligation to the Consenting Party under the Contract unless and until such time
as it succeeds to the interests of the Company under such Contract. It is
expressly understood and agreed by the parties hereto that this Consent has been
executed by Bankers Trust (Delaware), not in its individual capacity, but solely
as Collateral Agent hereunder in the exercise of the power and authority
conferred and vested in it, and nothing contained herein shall be construed as
creating any liability on Bankers Trust (Delaware), individually or personally,
to perform any covenant, either expressed or implied, contained herein, all such
liability, if any, being expressly waived by the parties hereto.
8. Exercise of Remedies by the Collateral Agent. Upon
delivery of written notice by the Collateral Agent to the
Consenting Party that the Collateral Agent or any of its
designees or assignees (as the case may be) expressly elects to
assume the obligations of the Company under the Contract, the
Collateral Agent or any of its designees or assignees shall have
the full right and power to enforce directly against the
Consenting Party all obligations of the Consenting Party under
such Contract and otherwise to exercise all remedies thereunder
and to make all demands and give all notices and make all
requests required or permitted to be made by the Company under
such Contract.
9. The Company Not to Cause Breach. The Company hereby
irrevocably waives any rights that it may have, including those arising under
the Contract, to seek to compel the Consenting Party to act in a manner
inconsistent with this Consent to Assignment while this Consent to Assignment is
in effect.
10. Subordination of Certain Claims; Indemnification. (a)
Notwithstanding anything herein or in the Contract to the contrary, the
Consenting Party hereby agrees that any claims of the Consenting Party for
indemnification, reimbursement or otherwise (whether or not based on the
Contract), insofar as such claims arise out of, are based upon or relate to (i)
the Notice of Charge of Discrimination (Charge No. 130952216) of the Equal
Employment Opportunity Commission heretofore delivered to the Consenting Party
or (ii) any other losses, claims, damages or liabilities (or actions in respect
thereof) of any Person, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of, are based upon or
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relate to conduct that is or is alleged to be part of a pattern of activity
similar to that alleged by or in the Notice of Charge of Discrimination referred
to above, in each case, whether heretofore or hereafter arising (each of such
losses, claims, damages and liabilities specified in clauses (i) and (ii), a
"Specified Claim"), shall constitute or shall be deemed to constitute
Subordinated Fees under the Financing Documents.
(b) Notwithstanding anything herein or in the Contract to the
contrary, the Consenting Party hereby agrees to indemnify and hold harmless the
Mobile Energy Parties, the Senior Secured Parties and the Collateral Agent
against any losses, claims, damages or liabilities, joint or several, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of, are based upon or relate to any Specified Claim.
11. Representations. The Consenting Party represents
and warrants to the Company and the Collateral Agent as follows:
(a) The Consenting Party is duly organized, validly existing
and in good standing under the laws of the State of Delaware and is
qualified to do business in the State of Alabama.
(b) The Consenting Party has the necessary corporate power and
corporate authority to execute, deliver and perform the Contract and
this Consent to Assignment; the execution and delivery by the
Consenting Party of the Contract and this Consent to Assignment and the
performance of its obligations thereunder and hereunder have been duly
authorized by all necessary corporate action and do not and will not
(i) require any consent or approval of the Consenting Party's board of
directors and shareholders, except for those consents and approvals
that have been duly obtained and are in full force and effect, (ii)
violate any provision of the certificate of incorporation and by-laws
of the Consenting Party or any provision of any law, rule or
regulation, or any order, writ, judgment, injunction, decree,
determination or award having applicability to the Consenting Party,
(iii) result in a breach of or constitute a default under any
indenture, loan agreement, credit agreement or any other agreement,
lease or instrument to which the Consenting Party is a party or by
which it or its properties may be bound or affected or (iv) result in,
or require, the creation or imposition of any mortgage, deed of trust,
pledge, lien, security interest, charge or encumbrance of any nature
now owned or hereafter acquired by the Consenting Party; and the
Consenting Party is not in violation, breach or default of any
provision of the certificate of incorporation and bylaws of the
Consenting Party or any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award having
applicability to the Consenting Party or any agreement referred to
above in clause (iii) of this Section
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10(b), which violation could have a material adverse effect on the
ability of the Consenting Party to perform its obligations under this
Consent to Assignment or the Contract.
(c) Each of the Contract and this Consent to Assignment has
been duly executed and delivered and constitutes a valid and binding
obligation of the Consenting Party, enforceable against the Consenting
Party in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the
enforcement of creditors' rights and general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or in law).
(d) No consent or approval of, or other action by, or any
notice or filing with, any court or administrative or governmental body
(except those previously obtained and in full force and effect) is
required in connection with the execution and delivery of the Contract
or this Consent to Assignment or the performance by the Consenting
Party of its obligations thereunder or hereunder; and the Consenting
Party has obtained all permits, licenses, approvals, consents,
authorizations and exemptions with respect to the performance of its
obligations under the Contract and this Consent to Assignment required
by applicable laws, statutes, rules and regulations in effect as of the
date hereof.
(e) The Consenting Party is not in default with respect to the
Contract and has no knowledge, as of the date hereof, of any claims or,
except as otherwise set forth in the Contract, rights of set-off by the
Consenting Party or by any of its affiliates against the Company. The
Consenting Party will not exercise any right of set-off it may have
against the Company or Mobile Energy under the Contract other than with
respect to matters arising under such Contract.
(f) There are no proceedings pending or, to the best of the
Consenting Party's knowledge after due inquiry, threatened against or
affecting the Consenting Party in any court or before any governmental
authority or arbitration board or tribunal (whether or not purportedly
on behalf of the Consenting Party) that may result in a material
adverse effect on the property, business, prospects or financial
condition of the Consenting Party or on the ability of the Consenting
Party to perform its obligations under, or that purports to affect the
legality, validity or enforceability of, the Contract or this Consent
to Assignment; and the Consenting Party is not in default with respect
to any order of any court, governmental authority or arbitration board
or tribunal that may result in a material adverse effect on the
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Consenting Party's ability to perform its obligations under this
Consent to Assignment or the Contract.
12. Binding Upon Successors. All agreements,
covenants, conditions, representations and warranties in this
Consent to Assignment shall be binding upon and inure to the
benefit of and be enforceable by the successors and assigns of
each of the parties hereto.
13. Captions. The captions or headings at the
beginning of each Section hereof are for convenience only and
shall not affect the construction hereof.
14. Governing Law. THE RIGHTS AND DUTIES OF THE PARTIES UNDER
THIS CONSENT TO ASSIGNMENT SHALL, PURSUANT TO SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO THE CHOICE OF LAW PROVISIONS THEREOF (OTHER THAN SUCH
SECTION 5-1401).
15. Amendment. This Consent to Assignment may be
modified, amended or rescinded only by a writing expressly
referring to this Consent to Assignment and signed by all of the
parties hereto.
16. Severability. Any provision of this Consent to Assignment
that may be determined by competent authority to be invalid or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without invalidating or rendering
unenforceable any remaining terms and provisions hereof, and such invalidity or
unenforceability shall not invalidate or render unenforceable such provision in
any other jurisdiction.
17. Termination. This Consent to Assignment shall be
deemed to be terminated and of no further force and effect at the
earlier of (a) payment in full of all Secured Obligations (as
defined in the Intercreditor Agreement) and (b) termination of
the Contract in accordance with the provisions of Section 3(b).
18. Counterparts. This Consent to Assignment may be
executed in any number of counterparts, each of which when so
executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, each of the Consenting Party, the
Collateral Agent and the Company have duly executed this Consent to Assignment
as of the date first above written.
SOUTHERN ELECTRIC INTERNATIONAL, INC.
a Delaware corporation,
as the Consenting Party
By: /s/
Name: S. Marce Fuller
Title:Vice President
BANKERS TRUST (DELAWARE),
a Delaware banking corporation, as
the Collateral Agent
By: /s/
Name:James H. Stallkamp
Title:President
MOBILE ENERGY SERVICES COMPANY,
L.L.C., an Alabama limited
liability company, as the Company
By: /s/
Name: Christopher J. Kysar
Title: Vice President
Acknowledged and Agreed:
MOBILE ENERGY SERVICES
HOLDINGS, INC.,
an Alabama corporation
By: /s/
Name: Christopher J. Kysar
Title: Vice President