EXHIBIT 10.6
ACKNOWLEDGEMENT, WAIVER #2 AND AMENDMENT
TO
FINANCING AGREEMENT
This ACKNOWLEDGMENT, WAIVER #2 AND AMENDMENT ("Amendment") TO THE
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of March 29, 2002 by
and between Pemstar Inc., duly organized under the laws of the State of
Minnesota ("Customer"), Turtle Mountain Corporation, duly organized under the
laws of the State of North Dakota ("Turtle Mountain") and Pemstar Pacific
Consultants Inc., duly organized under the laws of the State of California
("Pemstar Pacific Consultants") (Customer, Turtle Mountain and Pemstar Pacific
Consultants, collectively, the "Credit Parties", individually, a "Credit
Party"), and IBM Credit Corporation, a Delaware corporation ("IBM Credit").
RECITALS:
WHEREAS, the Credit Parties and IBM Credit have entered into that
certain Amended and Restated Revolving Credit Agreement dated as of June 29,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Agreement");
WHEREAS, the Credit Parties are in default of one or more of its
financial covenants contained in the Agreement (as more specifically explained
in Section 2 hereof); and
WHEREAS, IBM Credit is willing to waive such defaults subject to the
terms and conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth herein, and
for other good and valuable consideration, the value and sufficiency of which is
hereby acknowledged, the parties hereto agree that the Agreement is amended as
follows:
Section 1. Definitions. All capitalized terms not otherwise defined herein shall
have the respective meanings set forth in the Agreement.
Section 2. Acknowledgment.
The Credit Parties acknowledge that the financial covenants set forth
in Attachment A to Agreement are applicable to the financial results of the
Credit Parties for the fiscal months ending January 31, 2002 and February 28,
2002, and the Credit Parties were required to maintain such financial covenants
at all times. The Credit Parties further acknowledge that their actual
attainment was as follows:
Covenant Actual
Covenant Actual for for the monthly
the monthly period period ending
Covenant Covenant Requirement ending 01/31/2002 02/28/2002
-------- -------------------- ----------------- ----------
(a) Net Profit after Tax to Equal to or Greater than 0.75 N/A N/A
Revenue percent quarterly and Equal
to or Greater than 1.25%
annually
(b) Total Liabilities to Greater than Zero and Equal 1.36:1.0 1.32:1.0
Tangible Net Worth to or Less than 2.50:1.0
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(c) Current Assets to Current Greater than 1.50:1.00 2.59:1.0 2.66:1.0
Liabilities
(d) Fixed Charge Coverage Equal to or Greater than (1.95:1.0) (2.58:1.0)
Ration 1.30:1.0
(e) Maximum Capital Less than or equal to $36,251,488 $38,277,587
Expenditures $32,000,000 for the fiscal
year ending March 2002
(f) Net Profit After Tax to Equal to or greater than 0.1 N/A N/A
Revenue (U.S. Credit percent
Parties operations only)
Section 3. Waivers to Agreement. Subject to the terms and conditions set forth
herein including, without limitation, Section 5 hereof, IBM Credit hereby waives
the defaults of the Credit Parties with the terms of the Agreement to the extent
such defaults are set forth in Section 2 hereof. The waiver shall not be
effective until the conditions to effectiveness set forth in Section 5 have been
fulfilled to IBM Credit's satisfaction in its sole discretion.
Section 4. Amendment.
The Agreement is hereby amended as follows:
A. Attachment A to the Agreement is hereby amended by deleting such
Attachment A in its entirety and substituting, in lieu thereof, the Attachment A
attached hereto. Such new Attachment A shall be effective as of the date
specified in the new Attachment A. The changes contained in the new Attachment A
include, without limitation, the following:
(A) Credit Facility; Revolving A; Seventy Million Dollars ($70,000,000)
Revolving Credit Facility.
Notwithstanding the foregoing, Revolving A shall be reduced to Sixty-five
Million Dollars ($65,000,000) if the Credit Parties' Net Profit after Tax to
Revenue attainment is less than 0% for the fiscal quarter ending March 31, 2002
as determined by IBM Credit based on the Credit Parties' draft financial
statements due to IBM Credit on April 30, 2002 or other financial information
provided or available to IBM Credit. Such reduction in the Credit Facility shall
be effective immediately when IBM Credit determines that the Credit Parties' Net
Profit after Tax to Revenue attainment was less than 0%.
(B) Borrowing Base.
(i) 90% of the amount of each Credit Party's Eligible Accounts from
International Business Machines Corp ("IBM") or its domestic subsidiaries as
account debtor pursuant to agreements between such Credit Party and IBM in form
and substance satisfactory to IBM Credit as of the date of determination as
reflected in the Customer's most recent Collateral Management Report;
(ii) 80% of the amount of each Credit Party's Eligible Accounts from
Honeywell Inc. ("Honeywell"), Minnesota Mining & Manufacturing Company ("3M"),
and Applied Materials, Inc. ("Applied Materials") as account debtor, provided
such account debtors remain investment grade, in IBM Credit's sole discretion,
and pursuant to agreements between such Credit Party and such account debtor, in
form and substance satisfactory to IBM Credit as of the date of determination as
reflected in the Customer's most recent Collateral Management Report;
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(iii) For the period prior to April 3, 2002, 80% of TMC, Inc. (a North
Dakota corporation) ("TMC") Eligible Accounts, but in no event greater than
$6,000,000 for the period from the date hereof through but excluding April 3,
2002. On and after April 3, 2002, TMC Eligible Accounts will be given $0 value
for purposes of calculating the Borrowing Base.
(iv) 80% of the amount of each Credit Party's other Eligible Accounts,
other than Concentration Accounts, as of the date of determination as reflected
in the Customer's most recent Collateral Management Report provided, however,
IBM Credit has a first priority security interest in such Eligible Account;
(v) a percentage, determined from time to time by IBM Credit in its
sole discretion, of the amount of Customer's Concentration Accounts for a
specific Concentration Account Debtor as of the date of determination as
reflected in the Customer's most recent Collateral Management Report; unless
otherwise notified by IBM Credit, in writing, the percentage for Concentration
Accounts for a specific Concentration Account Debtor shall be the same as the
percentage set forth in paragraph (ii) of the Borrowing Base;
The following subsections (vi), (vii), (viii) and (ix) specify valuation rates
for Eligible Finished Goods Inventory, Eligible Parts Inventory and Eligible
Inventory (as such items are defined below) for the following Credit Parties' at
the specified locations:
Pemstar Inc. = Rochester, MN
Pemstar Inc. = San Jose, CA
Pemstar Inc. = Taunton, MA
Turtle Mountain Corporation = Dunseith, ND
(vi) Rochester, MN = 96%, ▇▇▇ ▇▇▇▇, ▇▇ ▇ ▇%, ▇▇▇▇▇▇▇, ▇▇ = 0%,
Dunseith, ND = 97% of the lower of (x) book value or (y) fair market value of
each Credit Party's Eligible Finished Goods Inventory destined for IBM aged less
than 180 days;
(vii) Rochester, MN = 84%, ▇▇▇ ▇▇▇▇, ▇▇ ▇ ▇%, ▇▇▇▇▇▇▇, ▇▇ = 0%,
Dunseith, ND = 75% of the lower of (x) book value or (y) fair market value of
each Credit Party's Eligible Parts Inventory destined for IBM aged less than 180
days;
(viii) Rochester, MN = 69%, ▇▇▇ ▇▇▇▇, ▇▇ ▇ ▇▇%, ▇▇▇▇▇▇▇, ▇▇ = 0%,
Dunseith, ND = 75% of the lower of (x) book value or (y) fair market value of
each Credit Party's Eligible Inventory destined for Honeywell, 3M, and Applied
Materials aged less than 180 days;
(ix) Rochester, MN (other than Eligible Finished Goods Inventory,
Eligible Parts Inventory and Eligible Inventory destined for Celestica) = 48%,
Rochester, MN (for Eligible Finished Goods Inventory, Eligible Parts Inventory
and Eligible Inventory destined for Celestica) = 59%, San Jose, CA = 59%,
Taunton, MA = 58%, Dunseith, ND = 60% of the lower of (x) book value or (y) fair
market value of each Credit Party's other Eligible Inventory aged less than 180
days, provided, however, IBM Credit has a first priority security interest in
such Eligible Inventory.
Eligible Finished Goods Inventory shall mean finished goods inventory in salable
condition aged less than 180 days, owned by a Credit Party free and clear of any
Liens (other than Liens pursuant to this Agreement), and designated and
identified as product to be sold to IBM as evidenced by (i) non-cancellable
purchase orders from IBM or (ii) a non-cancellable written agreement that IBM
will purchase such inventory, in each case, in form and substance satisfactory
to IBM Credit.
Eligible Parts Inventory shall mean parts Inventory and floor stock raw
materials in good condition aged less than 180 days, owned by a Credit Party
free and clear of any Liens (other than Liens pursuant to this Agreement), and
designated and identified as parts to be used to manufacture product (the
Eligible Finished
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Goods Inventory) to be sold to IBM as evidenced by (i) non-cancellable purchase
orders from IBM to such Credit Party or (ii) a non-cancellable written agreement
that IBM will purchase such inventory, in each case, in form and substance
satisfactory to IBM Credit.
Eligible Inventory shall mean raw materials, floor stock raw materials and
finished goods inventory aged less than 180 days and owned by a Credit Party
free and clear of any Liens (other than Liens pursuant to this Agreement)
designated and identified by the Customer in its periodic collateral report or
borrowing request to IBM Credit as inventory application to product sold, or to
be manufactured and sole, by a Credit Party to an end-user pursuant to
non-cancellable purchase orders or other written agreements binding such end
user to purchase such product, in each case, in form and substance satisfactory
to IBM Credit.
Notwithstanding the foregoing, IBM Credit may consider Eligible Finished Goods
Inventory, Eligible Parts Inventory and/or Eligible Inventory in the Borrowing
Base greater than 180 days old provided that (i) a purchase order is in place
between the end-user and the Credit Party, in form and substance satisfactory to
IBM Credit or (ii) Credit Party provides evidence to IBM Credit, in form and
substance satisfactory to IBM Credit, that the end-user is paying all carrying
costs associated with such Eligible Finished Goods Inventory. Eligible Parts
Inventory and/or Eligible Inventory. Under no circumstances will Eligible
Inventory be considered in the Borrowing Base if older than 365 days.
IBM Credit will consider Eligible Finished Goods Inventory, Eligible Parts
Inventory and/or Eligible Inventory to be ineligible if the end-user customer
with respect to such Eligible Finished Goods Inventory, Eligible Parts Inventory
and/or Eligible Inventory becomes delinquent in its payments of accounts
receivable to the Credit Parties and such accounts receivable owing from such
account debtor are not eligible pursuant to the terms of Section 3.1(C) of the
Agreement.
Notwithstanding the foregoing, assets of Pemstar Pacific Consultants shall not
be included for the purposes of calculating the Borrowing Base. For purposes of
calculating the Borrowing Base, Pemstar Pacific Consultants shall not be deemed
a Credit Party.
(C) Collateral Insurance Amount: Seventy Million Dollars ($70,000,000).
(D) Applicable Margin: (i) Effective as of the date hereof and hereafter
(subject to the next sentence), the Applicable Margin shall be Prime Rate plus
3.00%. (ii) If on October 20, 2002, IBM Credit determines that the Credit
Parties are in full compliance with the covenants set forth in the Agreement and
that no Default or Event of Default exists, then for the period beginning
October 20, 2002 and thereafter the Applicable Margin for determining an A/R
Advance shall be based upon the previous fiscal quarter's Cash Flow Leverage
Ratio as of the relevant date of determination, as set forth below.
Cash Flow Leverage Ratio LIBOR Margin Prime Rate Margin
------------------------ ------------ -----------------
Less than or Equal to 1.5:1.0 1.75% 0.00%
Greater than 1.5:1.0 and
Less than or Equal to 2.5:1.0 2.25% 0.375%
Greater than 2.5:1.0 and
Less than or Equal to 3.5:1.0 2.75% 0.875%
Greater than 3.5:1.0 and
Less than or Equal to 4.50:1.0 3.00% 1.125%
Greater than 4.50:1.0 3.50% 1.625%
The date of determination (for purposes of this clause ii) shall be the
first day of the calendar month following the earlier of (i) receipt by IBM
Credit of the financial statements required by Section 7.1 showing a change in
the Cash Flow Leverage Ratio, and (ii) receipt and consent by IBM Credit of a
notice from the Customer requesting a change in the Applicable Margin based on
the Customer's Cash Flow Leverage Ratio. Each subsequent change in the
Applicable Margin shall be effective on the first day of the calendar month
following the earlier of (i) receipt by IBM Credit of the financial statements
required by Section 7.1
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showing a change in the Cash Flow Leverage Ratio from the prior fiscal quarter,
and (ii) receipt and consent by IBM Credit of a notice requesting a change in
the Applicable Margin.
As of any date, the Cash Flow Leverage Ratio shall be the Cash Flow
Leverage Ratio as calculated in the quarterly financial statements last received
by IBM Credit pursuant to Section 7.1, provided that a change in the Applicable
Margin shall not be effective until the first day of the calendar month
following the receipt by IBM Credit of such financial statements, and provided
further that for any period during which Customer fails to deliver the quarterly
financial statements as required under Section 7.1, the Cash Flow Leverage Ratio
shall be deemed to be greater than 4.50:1.0
(E) Delinquency Fee Rate: Prime Rate plus 6.500%
(F) Shortfall Transaction Fee: Shortfall Amount multiplied by 0.30%
(G) Other Charges:
(i) Unused Line Fee: 0.375% per annum on the daily average unused portion of the
Credit Line for each day from the closing date of the Agreement and shall be
computed on the basis of a 360 day year and payable monthly in arrears and upon
the maturity or termination of the Agreement.
(ii) Prepayment Fee: A prepayment premium, payable to IBM Credit in the event
that the Customer terminates the Credit Line prior to the third year anniversary
of the closing date, in an amount equal to the amount of the Credit Line in
effect as of the date of notice of termination or date of default, multiplied by
one half of one percent (0.50%).
(b) Customer will be required to maintain the following financial ratios,
percentages and amounts as of the last day of the fiscal period under review by
IBM Credit:
On a consolidated basis:
Covenant Covenant Requirement
-------- --------------------
(a) Net Profit after Tax to Equal to or Greater than 0.75
Revenue percent quarterly and Equal to
or Greater than 1.25% annually
(b) Total Liabilities to Greater than Zero and Equal to
Tangible Net Worth or Less than 2.50:1.0
(c) Current Assets to Current Greater than 1.50:1.0
Liabilities
(d) Fixed Charge Coverage Ratio Equal to or Greater than 1.30:1.0
(e) Maximum Capital Expenditures Less than or equal to
$32,000,000 for the fiscal
year ending March 2002
(f) Net Profit After Tax to Equal to or greater than 0.1 percent
Revenue (U.S. Credit Parties
operations only)
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On and after the date the Proposed Debt Issuance is closed and the transactions
contemplated thereunder are closed (provided such date is on or prior to April
12, 2002 (and IBM Credit and US Bank provide written consent to the Proposed
Debt Issuance and the gross cash proceeds from the Proposed Debt Issuance is at
least $20,000,000 and the other conditions to effectiveness set forth in Section
5 hereof have been satisfied), Customer will be required to maintain the
following financial ratios, percentages and amounts as of the fiscal period
under review by IBM Credit:
Covenant Covenant Requirement
-------- --------------------
(a) Net Profit After Tax to Equal to or Greater than 0.75 percent quarterly for
Revenue the fiscal quarter ending September 30, 2002 and
all fiscal quarters thereafter and Equal to
or Greater than .6 percent for the fiscal
year ending March 31, 2003 and 1.25 percent
for all fiscal year ends thereafter
(b) Total Liabilities to Greater than Zero and Equal to or Less than 1.6:1.0
Tangible Net Worth
(c) Current Assets to Current Greater than 2.0:1.0
Liabilities
(d) Fixed Charge Coverage Ratio Equal to or Greater than 1.00:1.0 for each
fiscal month beginning December 31, 2002,
including the fiscal months ending January
31, 2003 and February 28, 2003 and 1.30:1.0
for each fiscal month beginning March 31,
2003 and for all fiscal months thereafter
(e) Maximum Capital Expenditures Less than or equal to $40,000,000 for
the fiscal year ending March 31, 2002 and
$18,000,000 for the fiscal year ending March
31, 2003 and all fiscal year ends
thereafter.
(f) Net Profit After Tax to Equal to or greater than 0.1 percent for the fiscal
Revenue (U.S. Credit Parties quarter ending December 31, 2002 and all fiscal
operations only) quarters thereafter
(g) EBITDA (U.S. Credit Parties Equal to or Greater than ($5,700,000) for fiscal
operations only) quarter ending March 31, 2002 and ($8,300,000) for
the six months ending June 30, 2002
(h) EBITDA Equal to or Greater than ($9,600,000) for fiscal
quarter ending March 31, 2002 and ($8,300,000) for
the six months ending June 30, 2002
(c) The following new definition is added:
"Proposed Debt Issuance": shall mean the convertible subordinated debt issued by
the Customer on terms and conditions and pursuant to documentation satisfactory
to IBM Credit in its sole discretion."
(d) The definition of Termination Date is hereby deleted in its entirety and
restated as follows:
"Termination Date": shall mean June 29, 2004 or such other date as IBM Credit
and Customer may agree from time to time; provided however if the Credit
Parties' Net Profit after Tax to Revenue attainment is less
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than 0% for the fiscal quarter ending March 31, 2002, as determined by IBM
Credit based on the Credit Parties' draft financial statements due to IBM Credit
on April 30, 2002 or any other information provided or available to IBM Credit,
"Termination Date" shall mean June 29, 2003 or such other date as IBM Credit and
Customer may agree from time to time."
(e) The following new Section 9.1(U) is added:
"(U) The Credit Parties fail to maintain direct lockbox participation to a
minimum of 85% prior to IBM Credit's next on-site collateral audit scheduled on
or about June 2002 and at all times thereafter. Direct lockbox participation
means that remittances from the account debtors in respect of the Accounts go
directly to the lockbox."
(f) Schedule 6.20 is deleted in its entirety and replaced with Schedule 6.20
attached hereto.
(g) Schedule 6.27 is deleted in its entirety and replaced with Schedule 6.27
attached hereto.
(h) Attachment C to the Agreement is hereby amended by deleting such Attachment
C in its entirety and substituting, in lieu thereof, the Attachment C attached
hereto. Such new Attachment C shall be effective as of the date specified in the
new Attachment A.
Section 5. Conditions to Effectiveness of Waiver. The waiver set forth in
Section 3 hereof shall become effective only upon the fulfillment of all of the
following conditions precedent to the satisfaction of IBM Credit in its sole
discretion of (i) this Amendment shall have been executed by each of the parties
hereto and IBM Credit shall have received a fully executed copy of this
Amendment by no later than March 29, 2002, (ii) IBM Credit shall have received
evidence satisfactory to it in its sole discretion that U.S. Bank shall have
waived all defaults under its financing facility with the Credit Parties by no
later than ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) IBM Credit shall have given its written consent
to the Proposed Debt Issuance and the transactions contemplated thereby and the
Proposed Debt Issuance shall have closed on or prior to April 12, 2002, all on
terms and conditions satisfactory to IBM Credit and the gross cash proceeds
resulting from the Proposed Debt Issuance shall be at least $20,000,000 and (iv)
US Bank shall have consented to the proposed Debt Issuance prior to April 12,
2002 and such consent shall be in form and substance satisfactory to IBM Credit.
Section 6. Additional Requirements. The Agreement is hereby amended by inserting
therein the following new sections:
Additional Covenants
(a) The Credit Parties shall: (i) execute a lockbox agreement with a bank
acceptable to IBM Credit, in form and substance satisfactory to IBM Credit; and
(ii) execute a Contingent Blocked Account Amendment and cause a bank,
satisfactory to IBM Credit, to execute such Contingent Blocked Account Amendment
on or prior to April 30, 2002 in accordance with Section IV of Attachment A.
(b) The Credit Parties shall provide to IBM Credit, Compliance Certificates, in
form and substance satisfactory to IBM Credit, providing detail as described in
the new Compliance Certificate attached hereto.
(c) The Credit Parties shall provide draft financial statements for the Credit
Parties' to IBM Credit for Customer's fiscal year end March 31, 2002, in form
and substance satisfactory to IBM Credit, on or prior to April 30, 2002.
(d) The Credit Parties shall have provided a stock pledge agreement and opinion
of Japanese counsel with respect to Pemstar Japan K.K. in form and substance
(and from counsel satisfactory to IBM Credit) satisfactory to IBM Credit on or
prior to April 30, 2002.
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(e) The Credit Parties shall have provided all remaining foreign stock pledges
and foreign opinions of counsel, all in form and substance satisfactory to IBM
Credit, on or prior to April 30, 2002.
(f) If the Proposed Debt Issuance is closed, Customer agrees not to amend or
modify the terms of the convertible subordinated debt issued pursuant to the
Proposed Debt Issuance without the prior written consent of IBM Credit.
The failure by any of the Credit Parties to comply with any of the above
covenants or the failure of any of the above requirements to be satisfied
(within the above time frames) in IBM Credit's determination in its sole
discretion shall constitute an immediate Event of Default under the Agreement.
Section 7. Rights and Remedies. Except to the extent specifically waived herein
IBM Credit reserves any and all rights and remedies that IBM Credit now has or
may have in the future with respect to each Credit Party, including any and all
rights or remedies which may have in the future as a result of each Credit
Parties' failure to comply with its financial covenants or any other covenants
to IBM Credit. Except to the extent specifically waived herein neither this
Amendment, any of IBM Credit's actions or IBM Credit's failure to act shall be
deemed to be a waiver of any such rights or remedies. The Credit Parties and IBM
Credit agree that failure to comply with the terms and provisions of this
Amendment or the Agreement constitute a new default under the Agreement. Nothing
herein shall be deemed a consent to the Proposed Debt Issuance.
Section 8. Governing Law. This Amendment shall be governed by and interpreted in
accordance with the laws which govern the Agreement.
Section 9. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one agreement.
Section 10. Covenants. The parties have discussed the possibility of amending
certain financial covenants in light of the projections of the Credit Parties.
Nothing herein is a commitment to change the financial covenants.
Section 11. Representations. The Credit Parties and Pemstar Pacific Consultants
hereby represent that this Amendment is a legal, valid, binding obligation of
such parties and enforceable in accordance with its terms.
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IN WITNESS WHEREOF, this Amendment has been executed by duly authorized
representatives of the undersigned as of the day and year first above written.
IBM Credit Corporation Pemstar Inc.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
Print Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Print Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- -------------------------
Title: Business Unit Executive Title: CFO
------------------------------ -------------------------------
Date: 03-29-02 Date: 03-29-02
------------------------------- --------------------------------
Turtle Mountain Corporation Pemstar Pacific Consultants, Inc.
By:/s/ ▇▇▇ ▇▇▇▇▇ By:/s/ ▇▇ ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
Print Name:▇▇▇ ▇▇▇▇▇ Print Name:▇▇ ▇▇▇▇▇▇▇
------------------------- -------------------------
Title:VP GM Pemstar Rochester Title:CEO
------------------------------ ------------------------------
Date:03-29-02 Date:03-29-02
------------------------------- -------------------------------
By:/s/ ▇▇ ▇▇▇▇▇▇▇
---------------------------------
Print Name:▇▇ ▇▇▇▇▇▇▇
-------------------------
Title:CEO
------------------------------
Date:03-29-02
-------------------------------
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