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EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
March 25, 1999, between SpectraSite Holdings, Inc., a Delaware corporation (the
"Issuer"), and United States Trust Company of New York, a national banking
association, as trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Issuer and the Trustee entered into an Indenture, dated as
of June 26, 1998 (the "Indenture"), with respect to the Issuer's 12% Senior
Discount Notes Due 2008 (the "Notes");
WHEREAS, on February 10, 1999, the Issuer entered into an Agreement and
Plan of Merger (the "Merger Agreement") among Nextel Communications, Inc., a
Delaware corporation ("Nextel"), Tower Parent Corp., a Delaware corporation
that is wholly owned by Nextel, Tower Merger Vehicle, Inc., a newly formed
Delaware corporation and a wholly owned direct subsidiary of Tower Parent Corp.
("Merger Sub"), Tower Asset Sub, Inc., a newly formed Delaware corporation and
a wholly owned direct subsidiary of Merger Sub, certain transferring
subsidiaries of Nextel, SpectraSite Communications, Inc., a Delaware
corporation and a wholly owned direct subsidiary of the Issuer ("SCI"), and SHI
Merger Sub, Inc., a newly formed Delaware corporation and a wholly owned direct
subsidiary of SCI ("SHI Merger Sub"), which provides for the merger of SHI
Merger Sub with and into Merger Sub, with Merger Sub thereby becoming a wholly
owned direct subsidiary of SCI;
WHEREAS, in order to consummate the transactions contemplated by the
Merger Agreement and as a condition to closing the merger of SHI Merger Sub
with and into Merger Sub, the Issuer has solicited consents from the Holders of
the Notes through a Consent Solicitation Statement, dated as of March 17, 1999,
to certain amendments to the Indenture (the "Proposed Amendments"), which
Proposed Amendments are reflected in this Supplemental Indenture;
WHEREAS, in accordance with Section 9.2 of the Indenture, the Issuer has
received the written consent of the Holders of at least a majority in principal
amount at maturity of the Notes outstanding to the Proposed Amendments;
WHEREAS, all things necessary to make this Supplemental Indenture a valid
supplement to the Indenture according to its terms and the terms of the
Indenture have been done;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Certain Terms Defined in the Indenture. All capitalized terms
used herein without definition herein shall have the meanings ascribed thereto
in the Indenture.
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SECTION 2. Amendments to the Indenture. Subject to Section 4 hereof, the
Indenture is hereby amended as follows:
(a) The following definitions are added to Section 1.1 of the Indenture
in proper alphabetical order:
"Nextel" means Nextel Communications, Inc., a Delaware corporation.
"Nextel Merger Agreement" means the Agreement and Plan of Merger, dated
as of February 10, 1999, among the Issuer, Nextel, Tower Parent Corp., a
Delaware corporation, Tower Merger Vehicle, Inc., a Delaware corporation, Tower
Asset Sub, Inc., a Delaware corporation, certain transferring subsidiaries of
Nextel, SpectraSite Communications, Inc., a Delaware corporation, and SHI
Merger Sub, Inc., a Delaware corporation, as amended, modified or supplemented
from time to time.
"Series C Purchase Agreement" means the Preferred Stock Purchase
Agreement, dated as of February 10, 1999, among SpectraSite and the several
purchasers named therein, as amended, modified or supplemented from time to
time.
(b) The definition of "Permitted Holders" in Section 1.1 of the Indenture
is replaced in its entirety with the following:
"Permitted Holders" means any or all of Xxxxxxx X. Xxxxx, Xxxxx X.
Xxxxxx, Xxx X. Xxxxxx, Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P., WCAS
Information Partners, L.P., WCAS Capital Partners III, L.P., their respective
general partners, employees of Welsh, Carson, Xxxxxxxx & Xxxxx, CIBC WG Argosy
Merchant Fund 2, L.L.C., Co-Investment Merchant Fund 3, LLC, Caravelle
Investment Fund, L.L.C., Tower Parent Corp., Whitney Equity Partners, L.P.,
X.X. Xxxxxxx III, L.P., Whitney Strategic Partners III, L.P., X.X. Xxxxxxx
Mezzanine Fund, L.P., Xxxxxx-Xxxxxx Media Partners, L.P., Kitty Hawk Capital
Limited Partnership, III, Kitty Hawk Capital Limited Partnership, IV, Eagle
Creek Capital, L.L.C., The North Carolina Enterprise Fund, L.P., Xxxxxx Family
Limited Partnership and their respective Affiliates.
(c) The definition of "Permitted Lien" in Section 1.1 of the Indenture is
replaced in its entirety with the following:
"Permitted Liens" means, with respect to any Person, (a) pledges or
deposits by such Person under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Indebtedness) or leases
to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits or cash or United States government bonds
to secure surety or appeal bonds to which such Person is a party, or deposits as
security for contested taxes or import duties or for the payment of rent, in
each case incurred in the ordinary course of business; (b) Liens imposed by law,
such as carriers', warehousemen's, landlords' and mechanics' Liens, in each case
for sums not yet due or being contested in good faith by
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appropriate proceeding, or judgment Liens not giving rise to an Event of
Default so long as any appropriate legal proceedings which may have been duly
initiated for the review of such judgment shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired; (c) Liens for property taxes not yet subject to penalties for
non-payment or which are being contested in good faith by appropriate
proceedings; (d) Liens in favor of issuers of surety bonds or letters of credit
issued pursuant to the request of and for the account of such Person in the
ordinary course of its business; (e) minor survey exceptions, minor
encumbrances, easements or reservations of, or rights of others for, licenses,
rights of way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real
properties or liens incidental to the conduct of the business of such Person or
to the ownership of its properties which were not incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person; (f) Liens securing Hedging Obligations so long as the
related Indebtedness is, and is permitted to be under the Indenture, secured by
a Lien on the same property securing such Hedging Obligations; (g) leases and
subleases of real property which do not interfere with the ordinary conduct of
the business of the Issuer or any of its Restricted Subsidiaries, and which are
made on customary and usual terms applicable to similar properties; (h) Liens
existing as of the date on which the Notes are originally issued and Liens
created by the Indenture; (i) Liens created solely for the purpose of securing
the payment of all or a part of the purchase price of assets or property
acquired or constructed in the ordinary course of business after the date on
which the Notes are originally issued; provided, however, that (A) the
aggregate principal amount of Indebtedness secured by such Liens shall not
exceed the aggregate purchase price of the assets or property so acquired or
constructed, (B) the Indebtedness secured by such Liens shall have otherwise
been permitted to be issued under the Indenture and (C) such Liens shall not
encumber any other assets or property of the Issuer or any of its Restricted
Subsidiaries and shall attach to such assets or property within 90 days of the
construction or acquisition of such assets or property; (j) Liens on the assets
or property of a Restricted Subsidiary of the Issuer existing at the time such
Restricted Subsidiary became a Subsidiary of the Issuer and not incurred as a
result of (or in connection with or in anticipation of) such Restricted
Subsidiary becoming a Subsidiary of the Issuer; provided, however, that (A) any
such Lien does not by its terms cover any property or assets after the time
such Restricted Subsidiary becomes a Subsidiary which were not covered
immediately prior to such transaction, (B) the incurrence of the Indebtedness
secured by such Lien shall have otherwise been permitted to be issued under the
Indenture, and (C) such Liens do not extend to or cover any other property or
assets of the Issuer or any of its Restricted Subsidiaries; (k) Liens securing
Indebtedness outstanding under the New Credit Facility; (l) Liens extending,
renewing or replacing in whole or in part a Lien permitted by the Indenture;
provided, however, that (A) such Liens do not extend beyond the property
subject to the existing Lien and improvements and construction on such property
and (B) the Indebtedness secured by the Lien may not exceed the Indebtedness
secured at the time by the existing Lien; (m) Liens Incurred in the ordinary
course of business by the Issuer or any Restricted Subsidiary of the Issuer
with respect to obligations that do not exceed $5.0 million at any one time
outstanding and that (i) are not Incurred in connection with the borrowing of
money or the obtaining of advances of credit (other than trade credit in the
ordinary course of business) and (ii) do not in the aggregate materially
detract from the value of the property or materially impair the use thereof in
the operation of business by the
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Issuer or such Restricted Subsidiary; (n) Liens in favor of the Issuer or a
Wholly Owned Subsidiary; (o) any interest in or title of a lessor to any
property subject to Capitalized Lease Obligations permitted to be Incurred
under this Indenture; (p) Liens on the Capital Stock of Unrestricted
Subsidiaries; and (q) the Liens to be granted pursuant to the terms of the
Security and Subordination Agreement, as amended, modified or supplemented from
time to time, to be entered into pursuant to the terms of the Nextel Merger
Agreement.
(d) Section 4.3(b) of the Indenture is replaced in its entirety with the
following:
Notwithstanding Section 4.3(a) and regardless of the amount of
outstanding Indebtedness of the Issuer, the Issuer may Incur any or all of the
following Indebtedness: (i) Indebtedness of the Issuer owing to and held by any
Restricted Subsidiary; provided, however, that any subsequent issuance or
transfer of any Capital Stock or any other event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of any such Indebtedness (except to another Restricted Subsidiary)
will be deemed, in each case, to constitute the Incurrence of such Indebtedness
by the Issuer; (ii) Indebtedness represented by the Notes and the Exchange
Notes; (iii) Indebtedness of the Issuer (other than the Indebtedness described
in clauses (i) or (ii) above) outstanding on the Issue Date; (iv) Indebtedness
(including Capitalized Lease Obligations) of the Issuer Incurred to finance the
acquisition, construction or improvement of fixed or capital assets in an
aggregate principal amount at any one time outstanding not to exceed $5.0
million (together with the amount of any Indebtedness then outstanding and
Incurred pursuant to clause (b)(vi) of Section 4.4); provided, that such
Indebtedness is Incurred within 180 days after the date of such acquisition,
construction or improvement and does not exceed the fair market value of such
acquired, constructed or improved assets, as determined in good faith by the
Board of Directors of the Issuer; (v) Refinancing Indebtedness Incurred in
respect of any Indebtedness Incurred pursuant to paragraph (a) or pursuant to
clause (ii), (iii) or this clause (v); (vi) Indebtedness (A) in respect of
performance bonds, bankers' acceptances, letters of credit and surety or appeal
bonds provided by the Issuer in the ordinary course of its business and which
do not secure other Indebtedness and (B) under Currency Agreements and Interest
Rate Agreements Incurred which, at the time of Incurrence, is in the ordinary
course of business; provided, however, that, in the case of Currency Agreements
and Interest Rate Agreements, such Currency Agreements and Interest Rate
Agreements are directly related to Indebtedness permitted to be Incurred by the
Issuer pursuant to this Indenture; (vii) Indebtedness represented by Guarantees
by the Issuer of Indebtedness otherwise permitted to be Incurred pursuant to
this Indenture; (viii) Indebtedness of any other Person existing at the time
such other Person is merged with or into the Issuer outstanding on or prior to
the date on which such Person was merged with or into the Issuer (other than
Indebtedness Incurred in connection with, or to provide all or any portion of
the funds or credit support utilized to consummate, the transaction or series
of related transactions pursuant to which such Person was merged with or into
the Issuer); provided, however, that on the date of such merger and after
giving effect thereto, the Issuer would have been permitted to incur at least
$1.00 of additional Indebtedness pursuant to paragraph (a) of this Section 4.3;
(ix) Indebtedness Incurred by the Issuer's Subsidiaries not otherwise
prohibited by the terms of this Indenture; (x)
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the Incurrence by the Issuer of Indebtedness not to exceed, at any one time
outstanding (together with the amount of any Indebtedness then outstanding and
Incurred pursuant to clause (b)(ix) of Section 4.4), 1.5 times the aggregate
Net Cash Proceeds received by the Issuer from the issue or sale of Capital
Stock (other than Disqualified Stock) subsequent to the Issue Date (other than
an issuance or sale to a Subsidiary of the Issuer and other than an issuance or
sale to an employee stock ownership plan or to a trust established by the
Issuer or any of its Restricted Subsidiaries), less the amount of such Net Cash
Proceeds used to make Restricted Payments pursuant to clause 3(B) of paragraph
(a) of Section 4.5 or applied pursuant to clause (i)(B) of paragraph (b) of
Section 4.5; provided, however, that for an issuance of Capital Stock prior to
the issuance and sale of Capital Stock under the Series C Purchase Agreement in
conjunction with the closing of the Nextel Merger Agreement, immediately prior
to the consummation of such issuance or sale of Capital Stock (other than the
issuance and sale contemplated under the Series C Purchase Agreement), the
Issuer would have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to paragraph (a) of this Section 4.3; (xi) Indebtedness
of the Issuer Incurred to finance a portion of the cash consideration to be
paid under the Nextel Merger Agreement, provided that the proceeds of any such
Indebtedness shall be held in an escrow account to secure such Indebtedness
until the closing of the Nextel Merger Agreement or until such time as the
Issuer could Incur such Indebtedness under the Indenture and (xii) other
Indebtedness in an aggregate principal amount outstanding at any time not to
exceed $5.0 million (together with the amount of any Indebtedness and Preferred
Stock then outstanding and Incurred pursuant to clause (b)(xi) of Section 4.4).
(e) Section 4.4(b) of the Indenture is replaced in its entirety with the
following:
Notwithstanding Section 4.4(a) and regardless of the amount of
outstanding Indebtedness of the Restricted Subsidiaries, any Restricted
Subsidiary may Incur any or all of the following Indebtedness: (i) Indebtedness
Incurred under the New Credit Facility in an aggregate principal amount
outstanding at any time not to exceed the greater of (A) $50.0 million and (B)
the product of (x) $200,000 and (y) the number of Completed Towers on the date
of such Incurrence, less the aggregate amount of all proceeds from all Asset
Dispositions of Tower Assets of the Issuer that have been applied since the
Issue Date to permanently reduce the outstanding amount of such Indebtedness
pursuant to Section 4.7; (ii) Indebtedness or Preferred Stock of a Restricted
Subsidiary issued to and held by the Issuer or a Restricted Subsidiary;
provided, however, that any subsequent issuance or transfer of any Capital
Stock which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of such Indebtedness or
Preferred Stock (other than to the Company or a Restricted Subsidiary) shall be
deemed, in each case, to constitute the Incurrence of such Indebtedness or
Preferred Stock by the issuer thereof; (iii) Indebtedness or Preferred Stock of
a Restricted Subsidiary Incurred and outstanding on or prior to the date on
which such Restricted Subsidiary was acquired by the Issuer (other than
Indebtedness or Preferred Stock Incurred in connection with, or to provide all
or any portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such Restricted
Subsidiary became a Restricted Subsidiary or was acquired by the Issuer);
provided, however, that on the date of such acquisition and after giving effect
thereto, the Issuer would have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to paragraph (a) of Section 4.3; (iv)
Indebtedness or Preferred Stock
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outstanding on the Issue Date (other than Indebtedness described in clauses
(i), (ii) or (iii) of this paragraph); (v) Refinancing Indebtedness Incurred in
respect of Indebtedness or Preferred Stock referred to in clauses (iii) or (iv)
of this paragraph or this clause (v); provided, however, that to the extent
such Refinancing Indebtedness directly or indirectly Refinances Indebtedness or
Preferred Stock of a Subsidiary described in clause (iii), such Refinancing
Indebtedness shall be Incurred only by such Subsidiary; (vi) Indebtedness
(including Capitalized Lease Obligations) Incurred to finance the acquisition,
construction or improvement of fixed or capital assets in an aggregate
principal amount at any one time outstanding not to exceed $5.0 million
(together with the amount of any Indebtedness then outstanding and Incurred
pursuant to clause (b)(iv) of Section 4.3); provided, that such Indebtedness is
Incurred within 180 days after the date of such acquisition, construction or
improvement and does not exceed the fair market value of such acquired,
constructed or improved assets, as determined in good faith by the Board of
Directors of the Issuer; (vii) Indebtedness (A) in respect of performance
bonds, bankers' acceptances, letters of credit and surety or appeal bonds
provided in the ordinary course of its business and which do not secure other
Indebtedness and (B) under Currency Agreements and Interest Rate Agreements
Incurred which, at the time of Incurrence, is in the ordinary course of
business; provided, however, that, in the case of Currency Agreements and
Interest Rate Agreements, such Currency Agreements and Interest Rate Agreements
are directly related to Indebtedness permitted to be Incurred pursuant to this
Indenture; (viii) Indebtedness represented by Guarantees of Indebtedness
otherwise permitted to be Incurred pursuant to this Indenture; (ix) the
Incurrence of Indebtedness not to exceed, at any one time outstanding (together
with the amount of any Indebtedness then outstanding and Incurred pursuant to
clause (b)(x) of Section 4.3), 1.5 times the aggregate Net Cash Proceeds
received by the Issuer from the issue or sale of Capital Stock (other than
Disqualified Stock) subsequent to the Issue Date (other than an issuance or
sale to a Subsidiary of the Issuer and other than an issuance or sale to an
employee stock ownership plan or to a trust established by the Issuer or any of
its Restricted Subsidiaries), less the amount of such Net Cash Proceeds used to
make Restricted Payments pursuant to clause 3(B) of paragraph (a) of Section
4.5 or applied pursuant to clause (i)(B) of paragraph (b) of Section 4.5;
provided, however, that for an issuance of Capital Stock prior to the issuance
and sale of Capital Stock under the Series C Purchase Agreement in conjunction
with the closing of the Nextel Merger Agreement, immediately prior to the
consummation of such issuance or sale of Capital Stock (other than the issuance
and sale contemplated under the Series C Purchase Agreement), the Issuer would
have been permitted to incur at least $1.00 of additional Indebtedness pursuant
to paragraph (a) of Section 4.3; (x) Indebtedness of the Issuer Incurred to
finance a portion of the cash consideration to be paid under the Nextel Merger
Agreement, provided that the proceeds of any such Indebtedness shall be held in
an escrow account to secure such Indebtedness until the closing of the Nextel
Merger Agreement or until such time as the Issuer could Incur such Indebtedness
under the Indenture and (xi) other Indebtedness and Preferred Stock in an
aggregate principal and/or liquidation amount outstanding at any time not to
exceed $5.0 million (less the amount of any Indebtedness then outstanding and
Incurred pursuant to clause (b)(xii) of Section 4.3).
(f) Section 4.8(b) of the Indenture is replaced in its entirety with the
following:
The provisions of paragraph (a) of this Section 4.8 shall not prohibit (i)
any Restricted
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Payment permitted to be made pursuant to Section 4.5, (ii) any issuance of
securities, or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors, or any
arrangements relating thereto, (iii) the grant of stock options or similar
rights to employees and directors of the Issuer pursuant to plans approved by
the Board of Directors, (iv) loans or advances to employees in the ordinary
course of business in accordance with the past practices of the Issuer or its
Restricted Subsidiaries, but in any event not to exceed $1.0 million in the
aggregate outstanding at any one time, (v) the payment of reasonable fees to
directors of the Issuer and its Restricted Subsidiaries who are not employees
of the Issuer or its Restricted Subsidiaries, (vi) any transaction between the
Issuer and a Restricted Subsidiary or between Restricted Subsidiaries, (vii)
the issuance or sale of any Capital Stock (other than Disqualified Stock) of
the Issuer, (viii) any transaction consummated pursuant to the terms of any
agreement described in the Offering Circular to which the Issuer is a party, in
each case as such agreement is in effect on the Issue Date and without giving
any effect to any subsequent amendments, modifications or alterations thereof,
and (ix) any transaction (A) contemplated by the Nextel Merger Agreement, (B)
contemplated by a credit facility on substantially the terms set forth in the
commitment letter dated January 15, 1999, as amended, between SpectraSite
Communications, Inc., as the borrower, and Canadian Imperial Bank of Commerce,
CIBC Xxxxxxxxxxx Corp. and Credit Suisse First Boston Corporation, pursuant to
which any Affiliate of the Issuer is a lender, provided that the terms and
conditions of such credit facility, taken as a whole, are no less favorable to
the Restricted Subsidiary that is a party thereto than those that could be
obtained at the time of such transaction in arm's-length dealings with a Person
who is not such an Affiliate or (C) between the Issuer or any Restricted
Subsidiary and any Affiliate of the Issuer involving ordinary course investment
banking, commercial banking or related activities.
SECTION 3. Waiver. Each Holder waives any contravention of any provision
of the Indenture (including, but not limited to, the Incurrence of Indebtedness
owing to Nextel by a subsidiary of Nextel being acquired by the Company as part
of consummation of the merger contemplated by the Nextel Merger Agreement) and
any Default arising out of the consummation of the transactions described in
the Issuer's Consent Solicitation Statement dated March 17, 1999 (as amended or
supplemented), and consents to the rescission of the Proposed Amendments by the
Company if the Transactions are not consummated.
SECTION 4. Rescission. If the closing contemplated by the Nextel Merger
Agreement has not been consummated by September 30, 1999, this Supplemental
Indenture shall be automatically rescinded without any further action by the
Issuer or the Trustee and shall be of no force or effect. The Issuer shall
notify the Trustee in writing promptly following the consummation of the
closing under the Nextel Merger Agreement.
SECTION 5. Governing Law. The laws of the State of New York shall
govern this Supplemental Indenture (without regard to the choice of law
provisions thereof).
SECTION 6. Counterparts. This Supplemental Indenture may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures
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thereto and hereto were upon the same instrument.
SECTION 7. Ratification. Except as expressly amended hereby, each
provision of the Indenture shall remain in full force and effect, and, as
amended hereby, the Indenture is in all respects agreed to, ratified and
confirmed by each of the Issuer and the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
SPECTRASITE HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXX
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Name: XXXXX X. XXXXXX
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Title: CHIEF FINANCIAL OFFICER
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UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee
By: /s/ XXXXXXXX X. XXXXXXXXXXXX
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Name: XXXXXXXX X. XXXXXXXXXXXX
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Title: ASSISTANT VICE PRESIDENT
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