FIFTH AMENDMENT TO THE TRANSFER AND CONTRIBUTION AGREEMENT
Exhibit 10.2
EXECUTION VERSION
FIFTH AMENDMENT TO THE
TRANSFER AND CONTRIBUTION AGREEMENT
This FIFTH AMENDMENT TO THE TRANSFER AND CONTRIBUTION AGREEMENT (this “Amendment”), dated as of July 20, 2018, is entered into by and among the VARIOUS ENTITIES LISTED ON THE SIGNATURE PAGES HERETO AS AN ORIGINATOR (the “Originators”), REMITCO LLC (the “Released Originator”), FIRST DATA CORPORATION, as initial Servicer (“First Data”), and FIRST DATA RECEIVABLES, LLC, a Delaware limited liability company (the “Company”).
Capitalized terms used but not otherwise defined herein (including such terms used above) have the respective meanings assigned thereto in the Transfer and Contribution Agreement described below.
BACKGROUND
A. The Originators, the Company and the Servicer have entered into a Transfer and Contribution Agreement, dated as of December 31, 2015 (as amended, restated, supplemented or otherwise modified through the date hereof, the “Transfer and Contribution Agreement”).
B. Concurrently herewith, the Company, First Data and PNC Bank, National Association (“PNC”), as Committed Lender, Group Agent and Administrative Agent, are entering into that certain Fifth Amendment to the Receivables Financing Agreement (the “RFA Amendment”), dated as of the date hereof.
C. The parties hereto desire to amend the Transfer and Contribution Agreement as set forth herein.
NOW, THEREFORE, with the intention of being legally bound hereby, and in consideration of the mutual undertakings expressed herein, each party to this Amendment hereby agrees as follows:
SECTION 1. Amendments to the Transfer and Contribution Agreement. The Transfer and Contribution Agreement is hereby amended as follows:
(a) Schedule I of the Transfer and Contribution Agreement is hereby replaced in its entirety with the schedule attached hereto as Schedule I.
(b) Schedule II of the Transfer and Contribution Agreement is hereby replaced in its entirety with the schedule attached hereto as Schedule II.
(c) Schedule III of the Transfer and Contribution Agreement is hereby replaced in its entirety with the schedule attached hereto as Schedule III.
(a) Release of Released Originator. The parties hereto hereby agree that upon the effectiveness of this Amendment, the Released Originator shall no longer be a party to the Transfer and Contribution Agreement or any other Transaction Document and shall no longer have any obligations or rights thereunder (other than such obligations which by their express terms survive termination of the Transfer and Contribution Agreement or such other Transaction Document).
SECTION 2. Delegation and Assumption of Released Originator’s Obligations. Effective immediately prior to the removal of the Released Originator as a party to the Transfer and Contribution Agreement pursuant to Section 1 above, the Released Originator hereby delegates to the remaining Originators, and each remaining Originator hereby assumes, jointly and severally, all of the Released Originator’s duties, obligations and liabilities under the Transfer and Contribution Agreement and each of the other Transaction Documents.
SECTION 3. Representations and Warranties of the Originators and Servicer. The Released Originator, the Originators and the Servicer hereby represent and warrant to each of the parties hereto as of the date hereof as follows:
(a) Representations and Warranties. The representations and warranties made by it in the Transfer and Contribution Agreement and the Receivables Financing Agreement are true and correct as of the date hereof.
(b) Enforceability. The execution and delivery by it of this Amendment, and the performance of its obligations under this Amendment, the Transfer and Contribution Agreement (as amended hereby) and the other Transaction Documents to which it is a party are within its organizational powers and have been duly authorized by all necessary action on its part, and this Amendment, the Transfer and Contribution Agreement (as amended hereby) and the other Transaction Documents to which it is a party are (assuming due authorization and execution by the other parties thereto) its valid and legally binding obligations, enforceable in accordance with its terms, except (x) the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws from time to time in effect relating to creditors’ rights, and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(c) No Event of Default. No Contribution Termination Event, Unmatured Contribution Termination Event, Event of Default or Unmatured Event of Default has occurred and is continuing, or would occur as a result of this Amendment or the transactions contemplated hereby.
SECTION 4. Effect of Amendment; Ratification. All provisions of the Transfer and Contribution Agreement and the other Transaction Documents, as expressly amended and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes effective, all references in the Transfer and Contribution Agreement (or in any other Transaction Document) to “this Transfer and Contribution Agreement”, “this Agreement”, “hereof”, “herein” or words of similar effect referring to the Transfer and Contribution Agreement shall be deemed to be references to the Transfer and Contribution Agreement as amended by this Amendment. This Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Transfer and Contribution Agreement other than as set forth herein. The Transfer and Contribution Agreement, as amended by this Amendment, is hereby ratified and confirmed in all respects.
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SECTION 5. Effectiveness. This Amendment shall become effective as of the date hereof upon the Administrative Agent’s receipt of counterparts to this Amendment executed by each of the parties hereto.
SECTION 6. Severability. Any provisions of this Amendment which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 7. Transaction Document. This Amendment shall be a Transaction Document for purposes of the Transfer and Contribution Agreement.
SECTION 8. Counterparts. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or e-mail transmission shall be effective as delivery of a manually executed counterpart hereof.
SECTION 9. GOVERNING LAW AND JURISDICTION.
(a) THIS AMENDMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF).
(b) EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK CITY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT, AND EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 10. Further Assurances; UCC Termination. (a) Each of First Data, the Originators, and the Released Originator hereby agrees to do, at the Released Originator’s
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expense, all such things and execute all such documents and instruments, in each case, as the Administrative Agent or the Company may reasonably consider necessary or desirable to give full effect to the transaction contemplated by this Amendment and the documents, instruments and agreements executed in connection herewith and therewith. (b) The Administrative Agent hereby agrees to do, at the Released Originator’s expense, all such things and execute all such documents and instruments and authorize and file all such financing statements and financing statement amendments, in each case, as the Released Originator, First Data, or the Company may reasonably consider necessary or desirable to give full effect to the transaction contemplated by this Amendment and the documents, instruments and agreements executed in connection herewith and therewith.
SECTION 11. Section Headings. The various headings of this Amendment are included for convenience only and shall not affect the meaning or interpretation of this Amendment, the Transfer and Contribution Agreement or any provision hereof or thereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment by their duly authorized officers as of the date first above written.
| FIRST DATA RECEIVABLES, LLC, as Company | ||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: |
Treasurer | |
|
FIRST DATA CORPORATION, as Servicer | ||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: |
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: |
Treasurer | |
| S-1 | Fifth Amendment to Transfer and Contribution Agreement |
| FIRST DATA RESOURCES, LLC, | ||
| CARDCONNECT, LLC, | ||
| CONCORD COMPUTING CORPORATION, | ||
| STAR NETWORKS, INC., | ||
| FIRST DATA PROCESSING, INC., | ||
| FIRST DATA HARDWARE SERVICES INC., | ||
| FIRST DATA GOVERNMENT SOLUTIONS, INC., | ||
| FIRST DATA GOVERNMENT SOLUTIONS, LP, | ||
| STAR SYSTEMS ASSETS, INC., | ||
| FIRST DATA MERCHANT SERVICES LLC, | ||
| IGNITE PAYMENTS, LLC, | ||
| FDS HOLDINGS, INC., | ||
| NEW PAYMENT SERVICES, INC., | ||
| CTS HOLDINGS, LLC, | ||
| CONCORD PAYMENT SERVICES, INC., and | ||
| GIFT SOLUTIONS LLC, each as an Originator | ||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: |
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: |
Assistant Secretary | |
|
TELECHECK SERVICES, INC., as an Originator | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: |
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Title: |
Assistant Secretary | |
| S-2 | Fifth Amendment to Transfer and Contribution Agreement |
| REMITCO LLC, as Released Originator | ||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: | Vice President | |
| S-3 | Fifth Amendment to Transfer and Contribution Agreement |
| ACKNOWLEDGED AND AGREED TO BY: | ||
|
PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: | Senior Vice President | |
|
PNC BANK, NATIONAL ASSOCIATION, as Group Agent for the PNC Group | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: | Senior Vice President | |
| S-4 | Fifth Amendment to Transfer and Contribution Agreement |
Schedule I
LIST AND LOCATION OF EACH ORIGINATOR
| Originator | Location | |
| First Data Resources, LLC | Delaware | |
| TeleCheck Services, Inc. | Delaware | |
| Star Networks, Inc. | Delaware | |
| First Data Processing, Inc. | Delaware | |
| First Data Hardware Services Inc. | California | |
| First Data Government Solutions, Inc. | Delaware | |
| First Data Government Solutions, LP | Delaware | |
| Star Systems Assets, Inc. | Delaware | |
| First Data Merchant Services LLC | Florida | |
| Ignite Payments, LLC | California | |
| FDS Holdings, Inc. | Delaware | |
| New Payment Services, Inc. | Georgia | |
| CTS Holdings, LLC | Colorado | |
| Concord Payment Services, Inc. | Georgia | |
| Gift Solutions LLC | Delaware | |
| CardConnect, LLC | Delaware | |
| Concord Computing Corporation | Delaware |
Schedule II
LOCATION OF BOOKS AND RECORDS OF ORIGINATORS
| Originator | Location of Books and Records | |
| First Data Resources, LLC | ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| TeleCheck Services, Inc. | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| Star Networks, Inc. | ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| First Data Processing, Inc. | ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| First Data Hardware Services Inc. | ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| First Data Government Solutions, Inc. | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| First Data Government Solutions, LP | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| Star Systems Assets, Inc. | ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| First Data Merchant Services LLC | ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| Ignite Payments, LLC | ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| FDS Holdings, Inc. | ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| New Payment Services, Inc. | ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| CTS Holdings, LLC | ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| Concord Payment Services, Inc. | ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| Gift Solutions LLC) | ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| CardConnect, LLC | ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| Concord Computing Corporation | ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
Schedule III
TRADE NAMES
Corporate Names:
First Data Resources, LLC
TeleCheck Services, Inc.
Star Networks, Inc.
Star Processing, Inc.
First Data Processing, Inc.
Instant Cash Services, LLC
TASQ Technology, Inc.
First Data Hardware Services Inc.
First Data Government Solutions, Inc.
First Data Government Solutions, LP
Star Systems Assets, Inc.
First Data Merchant Services LLC
Unified Merchant Services
First Data Merchant Services Southeast, L.L.C.
Ignite Payments, LLC
First Data Merchant Services Northeast, LLC
FDS Holdings, Inc.
New Payment Services, Inc.
National Payment Systems Inc.
CTS Holdings, LLC
Concord Payment Services, Inc.
ValueLink, LLC
Gift Solutions LLC
CardConnect, LLC
Concord Computing Corporation
DBAs:
First Data Government Solutions, Inc.
| Jurisdiction | DBA Name | Start Date | ||
| Florida | GovConnect, Inc. | 9/29/2004 |
First Data Government Solutions, LP
| Jurisdiction | DBA Name | Start Date | ||
| Colorado |
Telepath |
8/21/2003 | ||
| Connecticut |
FDGS Limited Partnership |
3/7/2007 |
| Kentucky |
FDGS, LP |
1/28/2008 | ||
| Maryland |
First Data Government Solutions, Limited Partnership |
8/9/2004 | ||
| Michigan |
First Data Government Solutions, Limited Partnership |
8/13/2004 | ||
| New Jersey |
FD Government Solutions LP |
3/28/2006 | ||
| Virginia |
First Data Government Solutions of Virginia, LP |
11/24/2004 |
Star Networks, Inc.
| Jurisdiction | DBA Name | Start Date | ||
| California |
Star EFT, Inc. |
9/20/2004 | ||
| Florida |
Star Networks Systems, Inc. |
10/2/1998 |
TeleCheck Services, Inc.
| Jurisdiction | DBA Name | Start Date | ||
| Vermont |
Check Payment Services |
4/12/2000 |
CTS Holdings, LLC
| Jurisdiction | DBA Name | Start Date | ||
| Colorado |
Concord Payment Systems |
05/20/2005 |
First Data Merchant Services LLC*
| Jurisdiction | DBA Name | Start Date | ||
| Illinois |
Express Merchant Processing Solutions |
03/07/2017 | ||
| Montana |
Midwest Merchant Services |
05/20/2005 |
* Originator converted to an LLC on 12/31/15. Prior to such date, Originator was known as First Data Merchant Services Corporation. The following DBAs are registered under First Data Merchant Services Corporation:
| Jurisdiction | DBA Name | Start Date | ||
| Florida |
Community Merchant Services |
5/24/2005 | ||
| Tennessee |
First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Services |
4/12/2000 | ||
| Virginia |
First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Services |
5/10/2000 | ||
| Maryland |
First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Services |
10/11/2002 | ||
| Louisiana |
Full Acquiring and Clearing Solutions |
9/7/2001 | ||
| Iowa |
Full Acquiring and Clearing Solutions |
7/18/2001 | ||
| Indiana |
Full Acquiring and Clearing Solutions |
9/7/2001 | ||
| Illinois |
Full Acquiring and Clearing Solutions |
7/9/2001 | ||
| Idaho |
Full Acquiring and Clearing Solutions |
8/24/2001 | ||
| Hawaii |
Full Acquiring and Clearing Solutions |
8/24/2001 |
| Arkansas |
Full Acquiring and Clearing Solutions |
8/24/2001 | ||
| New Hampshire |
Full Acquiring and Clearing Solutions |
8/29/2001 | ||
| New Jersey |
Full Acquiring and Clearing Solutions |
8/24/2001 | ||
| North Dakota |
Full Acquiring and Clearing Solutions |
7/9/2001 | ||
| Oregon |
Full Acquiring and Clearing Solutions |
8/24/2001 | ||
| Pennsylvania |
Full Acquiring and Clearing Solutions |
8/24/2001 | ||
| Rhode Island |
Full Acquiring and Clearing Solutions |
8/24/2001 | ||
| Utah |
Full Acquiring and Clearing Solutions |
7/10/2001 | ||
| Nebraska |
Full Acquiring and Clearing Solutions |
8/24/2001 | ||
| Texas |
Full Acquiring and Clearing Solutions |
9/10/2001 | ||
| Maine |
Full Acquiring and Clearing Solutions |
8/24/2001 | ||
| Minnesota |
Full Acquiring and Clearing Solutions |
8/24/2001 | ||
| Missouri |
Full Acquiring and Clearing Solutions |
8/24/2001 | ||
| Montana |
Full Acquiring and Clearing Solutions |
7/9/2001 | ||
| Colorado |
Full Acquiring and Clearing Solutions |
7/10/2001 | ||
| Colorado |
Midwest Merchant Services |
5/18/2005 | ||
| Texas |
Midwest Merchant Services |
5/20/2005 | ||
| Idaho |
Midwest Merchant Services |
5/23/2005 | ||
| Iowa |
Midwest Merchant Services |
5/20/2005 | ||
| Montana |
Midwest Merchant Services |
5/20/2005 | ||
| Wyoming |
Midwest Merchant Services |
5/24/2005 | ||
| Oklahoma |
Midwest Merchant Services |
5/23/2005 | ||
| Minnesota |
Midwest Merchant Services |
5/20/2005 | ||
| North Dakota |
Midwest Merchant Services |
5/23/2005 | ||
| Missouri |
Midwest Merchant Services |
5/23/2005 | ||
| South Dakota |
Midwest Merchant Services |
6/7/2005 | ||
| Illinois |
Midwest Merchant Services |
6/8/2005 | ||
| Indiana |
Midwest Merchant Services |
6/9/2005 | ||
| Nebraska |
Midwest Merchant Services |
5/23/2005 | ||
| Utah |
Midwest Merchant Services |
5/20/2005 | ||
| Washington |
Midwest Merchant Services |
6/10/2005 | ||
| California |
NaBanco |
6/29/1989 | ||
| Florida |
NaBanco |
7/29/1981 | ||
| Florida |
PaySpring Merchant Services |
6/27/2012 | ||
| Colorado |
Sam’s Club Merchant Credit Card Processing |
2/22/2005 | ||
| Iowa |
TCF Merchant Services |
5/2/2007 | ||
| Colorado |
TCF Merchant Services |
4/24/2007 | ||
| Illinois |
TCF Merchant Services |
5/2/2007 | ||
| Minnesota |
TCF Merchant Services |
5/22/2007 | ||
| Indiana |
TCF Merchant Services |
10/30/2007 | ||
| Florida |
West Coast Merchant Services |
10/26/2006 |
Ignite Payments, LLC
| Jurisdiction | DBA Name | Start Date | ||
| California |
First Data Independent Sales |
1/30/2013 | ||
| California |
First Data independent Sales |
2/5/2013 | ||
| California |
PayStart |
3/19/2013 |
National Payment Systems Inc.
| Jurisdiction | DBA Name | Start Date | ||
| Card Payment Systems |
11/21/1996 | |||
| Concord Payment Systems |
10/17/2001 |