EXHIBIT 10.12
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement"), dated as of April
7, 1998, is made between Giga Information Group, Inc., a Delaware corporation
("Debtor") and Friedman, Billings, ▇▇▇▇▇▇ Group, Inc., as agent for the Lenders
("Secured Party").
Debtor and Secured Party hereby agree as follows:
SECTION 1 Definitions; Interpretation.
(a) All capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings assigned to them in the Loan
Agreement.
(b) As used in this Agreement, the following terms shall have
the following meanings:
"Collateral" has the meaning set forth in Section 2.
"Documents" means this Agreement, the Loan Agreement, the
Notes, and all other certificates, documents, agreements and instruments
delivered to Secured Party under the Loan Agreement or in connection with the
Obligations.
"Default" has the meaning set forth in Section 8.
"Excluded Collateral" means any Collateral of the type
referred to in Section 2(a)(i) and any equipment covered by the Lease Facility
Debt to the extent, and only to the extent, that such Collateral is subject to
or contains a legally enforceable provision which would require the consent of
another person or entity to the grant of the security interest created herein
pursuant to the terms of this Agreement; provided, however, that if and when any
prohibition on the assignment, pledge, or grant of a security interest in such
Collateral is removed or consent granted, the Collateral Agent will be deemed to
have been granted a security interest in such Collateral as of the date hereof,
and the Collateral will be deemed to include such Collateral.
"Loan Agreement" means that Loan and Warrant Purchase
Agreement dated of even date herewith among Debtor and the Lenders, as amended,
modified, renewed, extended or replaced from time to time.
"Obligations" means the indebtedness, liabilities and other
obligations of Debtor to Secured Party or the Lenders under or in connection
with the Documents, including, without limitation, all unpaid principal of the
Note, all interest accrued thereon, all fees and all other amounts payable
thereunder whether now existing or hereafter arising, and whether due or to
become due, absolute or contingent, liquidated or unliquidated, determined or
undetermined.
1.
"Person" means an individual, corporation, partnership, joint
venture, trust, unincorporated organization, governmental agency or authority,
or any other entity of whatever nature.
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of New York; provided, however, in the
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
(c) Where applicable and except as otherwise defined herein,
terms used in this Agreement shall have the meanings assigned to them in the
UCC.
(d) In this Agreement, (i) the meaning of defined terms shall
be equally applicable to both the singular and plural forms of the terms
defined; and (ii) the captions and headings are for convenience of reference
only and shall not affect the construction of this Agreement.
SECTION 2 Security Interest.
(a) As security for the payment and performance of the
Obligations, Debtor hereby pledges, assigns, transfers, hypothecates and sets
over to Secured Party, for itself and the ratable benefit of the Lenders, and
hereby grants to Secured Party for itself and the ratable benefit of the
Lenders, a security interest in, all of Debtor's right, title and interest in,
to and under the following property, wherever located and whether now existing
or owned or hereafter acquired or arising (excluding the Excluded Collateral)
(collectively, the "Collateral"):
(i) all accounts, accounts receivable, contract rights, rights
to payment, chattel paper, letters of credit, documents, securities, money and
instruments, and investment property, whether held directly or through a
securities intermediary, and other obligations of any kind owed to Debtor,
however evidenced;
(ii) all deposits and deposit accounts with any bank, savings
and loan association, credit union or like organization, and all funds and
amounts therein, and whether or not held in trust, or in custody or safekeeping,
or otherwise restricted or designated for a particular purpose;
(iii) all inventory, including, without limitation, all
materials, raw materials, parts, components, work in progress, finished goods,
merchandise, supplies, and all other goods which are held for sale, lease or
other disposition or furnished under contracts of service or consumed in
Debtor's business, including, without limitation, those held for display or
demonstration or out on lease or consignment;
2.
(iv) all equipment, including, without limitation, all
machinery, furniture, furnishings, fixtures, trade fixtures, tools, parts and
supplies, automobiles, trucks, tractors and other vehicles, appliances, computer
and other electronic data processing equipment and other office equipment,
computer programs and related data processing software, and all additions,
substitutions, replacements, parts, accessories, and accessions to and for the
foregoing;
(v) all general intangibles and other personal property of
Debtor, including, without limitation, (A) all tax and other refunds, rebates or
credits of every kind and nature to which Debtor is now or hereafter may become
entitled; (B) all intellectual property (domestic or foreign) and all rights
therein of any type or description, including, without limitation, all
inventions and discoveries, patents and patent applications, copyrights and
applications for copyright (together with the underlying works of authorship)
whether or not registered, together with any renewals and extensions thereof,
trademarks, service marks and trade names, and applications for registration of
such trademarks, service marks and trade names, trade secrets, trade dress,
trade styles, logos, other source of business identifiers, mask-works, mask-work
registrations, mask-work applications, software, confidential and proprietary
information, customer lists, other license rights, advertising materials,
operating manuals, methods, processes, know-how, algorithms, formulae,
databases, quality control procedures, product, service and technical
specifications, operating, production and quality control manuals, sales
literature, drawings, specifications, blue prints, descriptions, inventions,
name plates and catalogs, and the entire goodwill of or associated with the
businesses now or hereafter conducted by Debtor connected with and symbolized by
any of the aforementioned properties and assets, and all licenses relating to
any of the foregoing, all reissuance, continuations and continuations-in-part of
the foregoing, all other rights derived from or associated with the foregoing,
including the right to ▇▇▇ and recover for past infringement, and all income and
royalties with respect thereto; (C) all good will, chooses in action and causes
of action; (D) all interests in limited and general partnerships and limited
liability companies; and (E) all indemnity agreements, guaranties, insurance
policies, insurance claims, and other contractual, equitable and legal rights of
whatever kind or nature;
(vi) all books, records and other written, electronic or other
documentation in whatever form maintained by or for Debtor in connection with
the ownership of its assets or the conduct of its business or evidencing or
containing information relating to the Collateral; and
(vii) all products and proceeds, including insurance proceeds,
of any and all of the foregoing.
(b) Anything herein to the contrary notwithstanding, (i)
Debtor shall remain liable under any contracts, agreements and other documents
included in the Collateral, to the extent set forth therein, to perform all of
its duties and obligations thereunder to the same extent as if this Agreement
had not been executed, (ii) the exercise by Secured Party of any of the rights
hereunder shall not release Debtor from any of its duties or obligations under
such contracts, agreements and other documents included in the Collateral, and
(iii) Secured Party shall not have any obligation or liability under any
contracts, agreements and other documents included in the Collateral by reason
of this Agreement, nor shall Secured Party be obligated to perform any of the
obligations or duties of Debtor thereunder or to take any action to collect or
enforce any such contract, agreement or other document included in the
Collateral hereunder.
3.
(c) This Agreement shall create a continuing security interest
in the Collateral which shall remain in effect until terminated in accordance
with Section 20 hereof.
SECTION 3 Financing Statements, Etc. Debtor shall execute and
deliver to Secured Party at any time and from time to time thereafter, all
financing statements, assignments, continuation financing statements,
termination statements, account control agreements, and other documents and
instruments, in form reasonably satisfactory to Secured Party, and take all
other action, as Secured Party may reasonably request, to perfect and continue
perfected, maintain the priority of or provide notice of the security interest
of Secured Party in the Collateral and to accomplish the purposes of this
Agreement.
SECTION 4 Representations and Warranties. Debtor represents
and warrants to Secured Party that:
(a) Debtor's chief executive office and principal place of
business is located at the address set forth in Schedule 1; all other locations
where Debtor conducts business or Collateral is kept are set forth in Schedule
1; and all trade names and fictitious names under which Debtor at any time in
the past has conducted or presently conducts its business operations are set
forth in Schedule 1 or Schedule 2.
(b) Debtor is the sole and complete owner of the Collateral,
free from any lien other than the liens permitted under the Loan Agreement.
(c) This Agreement creates, or will at the time Debtor
acquires rights in the same hereafter create, a perfected security interest in
and enforceable against the Collateral subject only to the liens permitted under
the Loan Agreement.
(d) All of Debtor's U.S. and foreign patents and patent
applications, copyrights (whether or not registered), applications for
copyright, trademarks, service marks and trade names (whether registered or
unregistered), and applications for registration of such trademarks, service
marks and trade names, are set forth in Schedule 2.
(e) All patents, copyrights, trademarks, service marks and
trade names are subsisting and have not been adjudged invalid or unenforceable
in whole or in part and to the best of the Debtor's knowledge each patent is
valid and enforceable.
(f) To the Debtor's knowledge no material infringement or
unauthorized use presently is being made of any of its intellectual property
Collateral and to the Debtor's knowledge its use of its intellectual property
does not infringe any right, privilege or license of any other person.
(g) Debtor owns or is authorized to use all material licenses,
patents, copyrights and other intellectual property rights necessary to continue
to conduct its business. No material intellectual property rights are owned or
held by any subsidiary of the Debtor (except for rights derivative of the
Debtor's intellectual property rights).
4.
SECTION 5 Covenants. So long as any of the Obligations remain
unsatisfied, Debtor agrees that:
(a) Debtor shall appear in and defend any action, suit or
proceeding which may affect to a material extent its title to, or right or
interest in, or Secured Party's right or interest in, the Collateral, and shall
do and perform all reasonable acts that may be necessary and appropriate to
maintain, preserve and protect the Collateral.
(b) Debtor shall comply in all material respects with all
laws, regulations and ordinances, and all policies of insurance, relating in a
material way to the possession, operation, maintenance and control of the
Collateral.
(c) Debtor shall give prompt written notice to Secured Party
(and in any event not later than 30 days following any change described below in
this subsection) of: (i) any change in the location of Debtor's chief executive
office or principal place of business, (ii) any change in the locations set
forth in Schedule 1; (iii) any change in its name, (iv) any changes in,
additions to or other modifications of its trade names and trade styles set
forth in Schedule 1 or Schedule 2, and (v) any changes in its identity or
structure in any manner which might make any financing statement filed hereunder
incorrect or misleading.
(d) Debtor shall carry and maintain in full force and effect,
at its own expense and with financially sound and reputable insurance companies,
insurance with respect to the Collateral in such amounts, with such deductibles
and covering such risks as is customarily carried by companies engaged in the
same or similar businesses and owning similar properties in the localities where
Debtor operates.
(e) Debtor shall keep separate, accurate and complete books
and records with respect to the Collateral, disclosing Secured Party's security
interest hereunder.
(f) Debtor shall not surrender or lose possession of (other
than to Secured Party), sell, lease, rent, or otherwise dispose of or transfer
any of the Collateral or any right or interest therein without the prior written
consent of the Secured Party, except in the ordinary course of business;
provided that no such disposition or transfer of Collateral consisting of
investment property or instruments shall be permitted while any Default exists.
(g) Debtor shall keep the Collateral free of all liens other
than the liens in respect of the Lease Facility Debt.
(h) Debtor shall pay and discharge all taxes, fees,
assessments and governmental charges or levies imposed upon it with respect to
the Collateral prior to the date on which penalties attach thereto, except to
the extent such taxes, fees, assessments or governmental charges or levies are
being contested in good faith by appropriate proceedings.
(i) Debtor shall maintain and preserve its corporate
existence, its rights to transact business and all other rights, franchises and
privileges necessary or desirable in the normal course of its business and
operations and the ownership of the Collateral.
5.
(j) Upon the request of Secured Party, Debtor shall (i)
promptly deliver to Secured Party, or an agent designated by it, appropriately
endorsed or accompanied by appropriate instruments of transfer or assignment,
all documents and instruments, all certificated securities with respect to any
investment property, all letters of credit and all accounts and other rights to
payment at any time evidenced by promissory notes, trade acceptances or other
instruments, (ii) cause any securities intermediaries to show on their books
that Secured Party is the entitlement holder with respect to any investment
property, and/or obtain account control agreements in favor of Secured Party
from such securities intermediaries, in form and substance satisfactory to
Secured Party, with respect to any investment property, as requested by Secured
Party, (iii) ▇▇▇▇ all documents and chattel paper with such legends as Secured
Party shall reasonably specify, and (iv) obtain consents from any letter of
credit issuers with respect to the assignment to Secured Party of any letter of
credit proceeds.
(k) Debtor shall at any reasonable time and from time to time
upon reasonable notice permit Secured Party or any of its agents or
representatives to visit the premises of Debtor and inspect the Collateral and
to examine and make copies of and abstracts from the records and books of
account of Debtor; provided, however, that prior to a Default the Debtor shall
not be required to disclose information which it reasonably considers to be a
trade secret or information subject to confidentiality undertaking to third
parties prohibiting disclosure.
(l) Debtor shall (i) notify Secured Party of any material
claim made or asserted against the Collateral by any Person and of any change in
the composition of the Collateral or other event which could materially
adversely affect the value of the Collateral or Secured Party's lien thereon;
(ii) furnish to Secured Party such statements and schedules further identifying
and describing the Collateral and such other reports and other information in
connection with the Collateral as Secured Party may reasonably request, all in
reasonable detail; and (iii) upon reasonable request of Secured Party make such
demands and requests for information and reports as Debtor is entitled to make
in respect of the Collateral.
(m) If and when Debtor shall obtain rights to any new patents,
trademarks, service marks, trade names or copyrights, or otherwise acquire or
become entitled to the benefit of, or apply for registration of, any of the
foregoing, Debtor (i) shall promptly notify Secured Party thereof and (ii)
hereby authorizes Secured Party to modify, amend, or supplement Schedule 2 and
from time to time to include any of the foregoing and make all necessary or
appropriate filings with respect thereto.
(n) Debtor shall not enter into any agreement (including any
license or royalty agreement) pertaining to any of its patents, copyrights,
trademarks, service marks and trade names without the prior written consent of
the Secured Party, except for non-exclusive licenses in the ordinary course of
business.
(o) Debtor shall give Secured Party immediate notice of the
establishment of any new deposit account and any new securities account with
respect to any investment property.
6.
SECTION 6 Collection of Accounts. At the request of Secured
Party, upon the occurrence and during the continuance of any Default, all
remittances received by Debtor shall be held in trust for Secured Party and, in
accordance with Secured Party's instructions, remitted to Secured Party or
deposited to an account of Secured Party in the form received (with any
necessary endorsements or instruments of assignment or transfer). At the request
of Secured Party, upon and after the occurrence of any Default, Secured Party
shall be entitled to receive all distributions and payments of any nature with
respect to any investment property or instruments, and all such distributions or
payments received by the Debtor shall be held in trust for Secured Party and, in
accordance with Secured Party's instructions, remitted to Secured Party or
deposited to an account with Secured Party in the form received (with any
necessary endorsements or instruments of assignment or transfer). Following the
occurrence of an Default any such distributions and payments with respect to any
investment property held in any securities account shall be held and retained in
such securities account, in each case as part of the Collateral hereunder.
SECTION 7 Authorization; Secured Party Appointed
Attorney-in-Fact. Secured Party shall have the right to, in the name of Debtor,
or in the name of Secured Party or otherwise, upon notice to but without the
requirement of assent by Debtor, and Debtor hereby constitutes and appoints
Secured Party (and any of Secured Party's officers, employees or agents
designated by Secured Party) as Debtor's true and lawful attorney-in-fact, with
full power and authority to: (i) sign any of the financing statements and other
documents and instruments which Secured Party deems necessary or advisable to
perfect or continue perfected, maintain the priority of or provide notice of
Secured Party's security interest in the Collateral (including any notices to or
agreements with any securities intermediary); (ii) assert, adjust, ▇▇▇ for,
compromise or release any claims under any policies of insurance; and (iii)
execute any and all such other documents and instruments, and do any and all
acts and things for and on behalf of Debtor, which Secured Party may deem
reasonably necessary or advisable to maintain, protect, realize upon and
preserve the Collateral and Secured Party's security interest therein and to
accomplish the purposes of this Agreement. Secured Party agrees that, except
upon and during the continuance of a Default, it shall not exercise the power of
attorney, or any rights granted to Secured Party, pursuant to clauses (ii) and
(iii). The foregoing power of attorney is coupled with an interest and is
irrevocable so long as the Obligations have not been paid and performed in full.
Debtor hereby ratifies, to the extent permitted by law, all that Secured Party
shall lawfully and in good faith do or cause to be done by virtue of and in
compliance with this Section 7.
SECTION 8 Events of Default. Any of the following events which
shall occur and be continuing shall constitute a "Default":
(a) There shall be an Event of Default under the terms
of the Loan Agreement.
(b) Any material impairment in the value of the Collateral or
the priority of Secured Party's lien hereunder.
(c) Any levy upon, seizure or attachment of any of the
Collateral.
(d) Any loss, theft or substantial damage to, or destruction
of, any material portion of the Collateral (unless within 3 days after the
occurrence of any such event, Debtor
7.
furnishes to Secured Party evidence satisfactory to Secured Party that the
amount of any such loss, theft, damage to or destruction of the Collateral is
adequately insured for its replacement value insured under policies naming
Secured Party as an additional named insured or loss payee).
SECTION 9 Remedies.
(a) Upon the occurrence and continuance of any Default,
Secured Party may declare any of the Obligations to be immediately due and
payable and shall have, in addition to all other rights and remedies granted to
it in this Agreement or any other Document, all rights and remedies of a secured
party under the UCC and other applicable laws. Without limiting the generality
of the foregoing, Secured Party may sell, resell, lease, use, assign, license,
sublicense, transfer or otherwise dispose of any or all of the Collateral in its
then condition or following any commercially reasonable preparation or
processing (utilizing in connection therewith any of Debtor's assets, without
charge or liability to Secured Party therefor) at public or private sale, by one
or more contracts, in one or more parcels, at the same or different times, for
cash or credit, or for future delivery without assumption of any credit risk,
all as Secured Party deems advisable; provided, however, that Debtor shall be
credited with the net proceeds of sale only when such proceeds are finally
collected by Secured Party. Secured Party shall have the right upon any such
public sale, and, to the extent permitted by law, upon any such private sale, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption, which right or equity of redemption Debtor hereby
releases, to the extent permitted by law. Debtor hereby agrees that the sending
of notice by ordinary mail, postage prepaid, to the address of Debtor set forth
herein, of the place and time of any public sale or of the time after which any
private sale or other intended disposition is to be made, shall be deemed
reasonable notice thereof if such notice is sent ten days prior to the date of
such sale or other disposition or the date on or after which such sale or other
disposition may occur, provided that Secured Party may provide Debtor shorter
notice or no notice, to the extent permitted by the UCC or other applicable law.
(b) For the purpose of enabling Secured Party to exercise its
rights and remedies under this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ hereby grants to Secured Party
an irrevocable, non-exclusive and assignable license (exercisable without
payment or royalty or other compensation to Debtor) to use, license or
sublicense any intellectual property Collateral.
(c) The cash proceeds actually received from the sale or other
disposition or collection of Collateral, and any other amounts received in
respect of the Collateral the application of which is not otherwise provided for
herein, shall be applied first, to the payment of the costs and expenses of
Secured Party in exercising or enforcing its rights hereunder and in collecting
or attempting to collect any of the Collateral, and to the payment of all other
amounts payable to Secured Party pursuant to Section 13 hereof; and second, to
the payment of the Obligations. Any surplus thereof which exists after payment
and performance in full of the Obligations shall be promptly paid over to Debtor
or otherwise disposed of in accordance with the UCC or other applicable law.
Debtor shall remain liable to Secured Party for any deficiency which exists
after any sale or other disposition or collection of Collateral.
SECTION 10 Certain Waivers. Debtor waives, to the fullest
extent permitted by
8.
law, (i) any right of redemption with respect to the Collateral, whether before
or after sale hereunder, and all rights, if any, of marshalling of the
Collateral or other collateral or security for the Obligations; (ii) any right
to require Secured Party (A) to proceed against any Person, (B) to exhaust any
other collateral or security for any of the Obligations, (C) to pursue any
remedy in Secured Party's power, or (D) to make or give any presentments,
demands for performance, notices of nonperformance, protests, notices of
protests or notices of dishonor in connection with any of the Collateral; and
(iii) all claims, damages, and demands against Secured Party arising out of the
repossession, retention, sale or application of the proceeds of any sale of the
Collateral
SECTION 11 Notices. All notices or other communications
hereunder shall be in writing (including by facsimile transmission) and mailed,
sent or delivered to the respective parties hereto at or to their respective
addresses or facsimile numbers set forth below their names on the signature
pages hereof, or at or to such other address or facsimile number as shall be
designated by any party in a written notice to the other parties hereto. All
such notices and other communications shall be effective (i) if delivered by
hand, when delivered; (ii) if sent by mail, upon the earlier of the date of
receipt or five business days after deposit in the mail, first class; and (iii)
if sent by facsimile transmission, when sent.
SECTION 12 No Waiver; Cumulative Remedies. No failure on the
part of Secured Party to exercise, and no delay in exercising, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, remedy, power or
privilege preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights and remedies under this
Agreement are cumulative and not exclusive of any rights, remedies, powers and
privileges that may otherwise be available to Secured Party.
SECTION 13 Secured Party's Duties. Notwithstanding any
provision contained in this Agreement, the Secured Party shall have no duty to
exercise any of the rights, privileges or powers afforded to it and shall not be
responsible to Debtor or any other Person for any failure to do so or delay in
doing so. Beyond the exercise of reasonable care to assure the safe custody of
Collateral in the Secured Party's possession and the accounting for moneys
actually received by the Secured Party hereunder, the Secured Party shall have
no duty or liability to exercise or preserve any rights, privileges or powers
pertaining to the Collateral.
SECTION 14 Costs and Expenses. Debtor agrees to pay on demand
all costs and expenses of Secured Party, and the fees and disbursements of
counsel, in connection with the enforcement or attempted enforcement of, and
preservation of any rights or interests under, this Agreement and any other
Document, including in any out-of-court workout or other refinancing or
restructuring or in any bankruptcy case, and the protection, sale or collection
of, or other realization upon, any of the Collateral, including all expenses of
taking, collecting, holding, sorting, handling, preparing for sale, selling, or
the like, and other such expenses of sales and collections of Collateral.
SECTION 15 Binding Effect. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by Debtor, Secured Party and
their respective successors and assigns.
9.
SECTION 16 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the law of the State of New York, except as
required by mandatory provisions of law and to the extent the validity or
perfection of the security interests hereunder, or the remedies hereunder, in
respect of any Collateral are governed by the law of a jurisdiction other than
New York.
SECTION 17 Entire Agreement; Amendment. This Agreement
contains the entire agreement of the parties with respect to the subject matter
hereof and shall not be amended except by the written agreement of the parties.
SECTION 18 Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under all applicable laws and regulations. If, however, any provision of this
Agreement shall be prohibited by or invalid under any such law or regulation in
any jurisdiction, it shall, as to such jurisdiction, be deemed modified to
conform to the minimum requirements of such law or regulation, or, if for any
reason it is not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement, or the validity or effectiveness of such provision
in any other jurisdiction.
SECTION 19 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same agreement.
SECTION 20 Termination. Upon payment and performance in full
of all Obligations, this Agreement shall terminate and Secured Party shall
promptly execute and deliver to Debtor such documents and instruments reasonably
requested by Debtor as shall be necessary to evidence termination of all
security interests given by Debtor to Secured Party hereunder; provided,
however, that the obligations of Debtor under Section 14 hereof shall survive
such termination.
10.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the date first above written.
GIGA INFORMATION GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
Potomac Tower
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-1.