EXHIBIT 10.2
Tax Sharing and Indemnity Agreement
THIS AGREEMENT, dated as of May 14, 1998, is by and between Sony
Corporation of America, a New York corporation ("SCA"), and LTM Holdings, Inc.,
a Delaware corporation ("LTM").
W I T N E S S E T H:
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WHEREAS, SCA is the common parent of the Affiliated Group (as defined
below) that included the LTM Group (as defined below) for Taxable Years (as
defined below) ending prior to the Closing Date ("Prior Years") and SCA filed a
consolidated federal income tax return on behalf of the Affiliated Group for
such years; and
WHEREAS, SCA is the common parent of the Affiliated Group that
included the LTM Group for the portion of the consolidated federal income tax
return year that ended on the Closing Date (the "Current Year") and SCA intends
to file a consolidated federal income tax return on behalf of the Affiliated
Group for the Taxable Year that includes the Current Year; and
WHEREAS, as of the Closing Date, the LTM Group will no longer be
affiliated with SCA for U.S. federal income tax purposes, but may remain
affiliated with SCA for purposes of filing consolidated, combined or unitary
state income, franchise or capital tax returns; and
WHEREAS, SCA and LTM wish to provide for procedures to be followed and
for the allocation and payment of consolidated U.S. federal income tax
liabilities of the SCA Group for Prior Years and the Current Year, and with
respect to consolidated, combined or unitary state income, franchise or capital
tax liabilities, for Prior Years, the Current Year and for Future Years, and to
provide for certain other tax-related matters.
NOW, THEREFORE, in consideration of these premises and of the mutual
agreements and covenants herein contained, SCA and LTM agree as follows:
The parties hereto agree as follows:
1. Definitions. For the purposes of this Agreement, the following
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terms shall be defined as follows:
(a) "Affiliated Group" shall mean a group of corporations
described in Section 1504(a) of the Code which files a consolidated
U.S. federal income tax return.
(b) "AMT" shall mean the alternative minimum tax imposed by
Section 55(a) of the Code.
(c) "Closing Date" shall have the meaning set forth in the Master
Agreement dated September 30, 1997 among Sony Pictures Entertainment,
Inc., Cineplex Odeon Corp. and LTM.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(e) "Final Determination" shall mean the final resolution of
liability for any tax governed by this Agreement for a Taxable Year,
including any related interest or penalties, (i) by IRS Form 870 or
870-AD (or any successor forms thereto), on the date of acceptance by
or on behalf of the IRS, or by a comparable form under the laws of
other jurisdictions, except that a Form 870 or 870-AD or comparable
form that reserves (whether by its terms or by operation of law) the
right of the taxpayer to file a claim for refund and/or the right of
the taxing authority to assert a further deficiency shall not
constitute a Final Determination, (ii) by a decision, judgment, decree
or other order by a court of competent jurisdiction, which has become
final and unappealable, (iii) by a closing agreement or accepted offer
in compromise under Section 7121 or 7122 of the Code, or comparable
agreements under the laws of other jurisdictions, (iv) by any
allowance of a refund or credit in respect of any overpayment of any
tax governed by this Agreement, but only after the expiration of all
periods during which such refund may be recovered (including by way of
offset) by the tax imposing jurisdiction, or (v) by any other final
disposition, including by reason of the expiration of the applicable
statute of limitations.
(f) "Future Years" shall mean Taxable Years or portions thereof
beginning after the Closing Date.
(g) "IRS" shall mean the Internal Revenue Service.
(h) "LTM Group" shall mean LTM and all of its U.S. subsidiaries
which are members of the SCA Group and shall also include Star
Theatres of Michigan, Inc., a Michigan corporation and S&J Theatres,
Inc., a California corporation.
(i) "LTM Group Separate Tax Liability" for a Taxable Year shall
mean the liability for U.S. federal income tax (including AMT and
Environmental Tax, if any) (as determined under Section 6 below), and
interest, penalties and additions to tax with respect thereto, of the
LTM
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Group computed as though the LTM Group filed a consolidated U.S.
federal income tax return separate from the SCA Group for such taxable
period and all prior taxable periods, which amount shall not be less
than zero.
(j) "SCA Group" shall mean the Affiliated Group for U.S. federal
income tax purposes of which SCA is the common parent.
(k) "SCA Group Tax Liability" for a Taxable Year shall mean the
actual liability of the SCA Group for U.S. federal income tax
(including AMT and Environmental Tax, if any), and interest, penalties
and additions to tax with respect thereto, for such Taxable Year.
(l) "SCA Separate Group" shall mean the SCA Group, excluding all
members of the LTM Group.
(m) "Taxable Year" shall mean the period for which a U.S. federal
income tax return or state income, franchise or capital tax return is
made.
2. Tax Sharing and Indemnity Agreement. This is the Tax Sharing and
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Indemnity Agreement contemplated by the Master Agreement dated September 30,
1997 by and among Sony Pictures Entertainment Inc. ("SPE"), Cineplex Odeon
Corporation and LTM (the "Master Agreement").
3. Payment, Indemnity and Consent. SCA shall pay to the IRS the
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entire SCA Group Tax Liability and shall indemnify and hold harmless each member
of the LTM Group with respect to any SCA Group Tax Liability imposed on such
member (including, without limitation, by reason of Section 1.1502-6 of the
Treasury Regulations), subject (a) to clause (i) of Sections 4 and 5, (b)
Section 7, and (c) in the case of members of the LTM Group to offset by (and
reimbursement of) any amount due to SCA from LTM pursuant to this Agreement. On
behalf of itself and each other member of the LTM Group, LTM hereby consents to
be included in the consolidated federal income tax return filed by SCA as the
common parent of the SCA Group for the Taxable Year that includes the Current
Year.
4. Prior Years. If as a result of an audit by a taxing authority or
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as a result of a court proceeding, the SCA Group Tax Liability (or any component
thereof or of the SCA Group's taxable income or loss) for a Prior Year is
adjusted, then notwithstanding paragraph 3 hereof (i) if there are adjustments
which increase the LTM Group Separate Tax Liability for a Prior Year, the amount
of any such increase shall be paid by LTM to SCA and (ii) if there are
adjustments which decrease the LTM Group Separate Tax Liability for a Prior
Year, the amount of any such decrease shall be paid to LTM by SCA to the extent
such amounts have previously been paid by LTM to SCA. SCA and LTM shall
cooperate in determining the amounts which have previously been
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paid by LTM to SCA. Payments by or to LTM required as the result of adjustments
shall be made promptly after the Final Determination of such adjustments.
5. Current Year. The portion of the LTM Group Separate Tax Liability
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for the Current Year not previously accrued prior to the Closing Date shall be
estimated by SCA and LTM and the amount of such estimate shall be accrued as a
liability of LTM, provided that the LTM Group Separate Tax Liability shall be
computed without taking into account the triggering as a result of the
transactions contemplated by the Master Agreement of any excess loss account
within the meaning of Treasury Regulation Section 1.1502-19 or deferred gain or
loss arising out of any intercompany transaction within the meaning of Treasury
Regulation Section 1.1502-13 (or arising out of any deferred intercompany
transaction within the meaning of Treasury Regulation Section 1.1502-13 as in
effect with respect to transactions occurring in years beginning before July 12,
1995) between a member of the SCA Separate Group and a member of the LTM Group
or between members of the LTM Group, and provided further, that any other taxes
imposed as a result of the transactions contemplated by the Master Agreement
shall be borne by the parties on whom imposed by law, except to the extent
expressly provided in this Agreement or in Section 9.3 of the Master Agreement.
If as the result of an audit by a taxing authority or as a result of a
court proceeding, the SCA Group Tax Liability (or any component thereof or of
the SCA Group's taxable income or loss) for the Current Year is adjusted, then
notwithstanding paragraph 3 hereof (i) if there are adjustments which increase
the LTM Group Separate Tax Liability for the Current Year, the amount of any
such increase shall be paid by LTM to SCA and (ii) if there are adjustments
which decrease the LTM Group Separate Tax Liability for the Current Year, the
amount of any such decrease shall be paid to LTM by SCA to the extent such
amounts have previously been paid by LTM to SCA. SCA and LTM shall cooperate in
determining the amounts which have previously been paid by LTM to SCA. Payments
by or to LTM required as the result of adjustments shall be made promptly after
the Final Determination of such adjustments.
6. Applicable Principles. The LTM Group Separate Tax Liability shall
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be computed as if the members of the LTM Group filed a separate consolidated tax
return for such members, except that such computation shall (1) be consistent
with the elections made, and the tax positions taken (or as adjusted pursuant to
a Final Determination) in determining the SCA Group Tax Liability, and (2) be in
accordance with Sections 4, 5 and 10.
7. State Tax Returns, Liability. If any member of the SCA Separate
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Group filed with respect to any Prior Year or will file with respect to the
Current Year a combined or consolidated state, local or foreign income or
franchise tax return with any member of the LTM Group or any return for a tax
based on capital that included the capital of any member of the LTM Group, the
provisions of Sections 1 through 6 shall
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apply mutatis mutandis to any such taxes as if such returns were consolidated
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U.S. federal income tax returns.
In the case of Future Years, if members of the SCA Group own, in the
aggregate, 50% or less of the voting stock of LTM, members of the SCA Separate
Group and the LTM Group shall file a combined or consolidated state, local or
foreign income or franchise tax return or return for a tax based on capital (a
"Combined Return") only to the extent that and in jurisdictions where they
mutually agree to file on such basis. If members of the SCA Group own, in the
aggregate, more than 50% of the voting stock of LTM, members of the SCA Separate
Group and the LTM Group shall file a Combined Return only to the extent that and
in jurisdictions where (i) (A) they file on such basis with respect to the
Current Year and (B) the party requesting the filing of a Combined Return
provides to the other party an opinion of independent tax accountants or
counsel, reasonably satisfactory to the other party, to the effect that members
of the SCA Separate Group and the LTM Group meet the ownership requirement
threshold necessary to be eligible to file a Combined Return with respect to
such jurisdiction, or (ii) they mutually agree to file on such basis. In the
event that, in accordance with the preceding sentence, any member of the SCA
Separate Group files a Combined Return with any member of the LTM Group for a
Future Year, then on each due date for the payment of any taxes relating to any
such return (or any portion thereof, including installments of estimated taxes)
by SCA or a member of the SCA Separate Group, LTM shall pay or cause to be paid
to SCA or such member of the SCA Separate Group an amount equal to LTM's
estimate of the tax liability of such member of the LTM Group. A final
computation of the liability of such member of the LTM Group shall be made
jointly by SCA and LTM no later than 90 days after the filing of such tax
return, and any difference between the estimated liability and actual liability
of such member of the LTM Group shall be paid by LTM to SCA or by SCA to LTM, as
the case may be, within 30 days of such final computation. Further, the
provisions of Sections 1 through 4 and Section 6 shall apply mutatis mutandis to
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any such taxes as if such returns were consolidated U.S. federal income tax
returns; provided, however, that (x) to the extent necessary to implement clause
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(i) of this Section 7, the consent contained in Section 3 shall be considered a
consent as to Future Years as well as the Current Year, and (y) for Future
Years, the definitions of SCA Group and LTM Group shall be deemed to include any
subsidiary of LTM with which any member of the SCA Group is consolidated or
combined, whether or not such subsidiary was ever a member of the Affiliated
Group of which SCA is the common parent. Any amount borne by LTM (or any other
member of the LTM Group) pursuant to this Section 7 shall be considered an item
attributable to it in determining the LTM Group Separate Tax Liability for the
Taxable Year in which such payment is made or received.
8. Tax Returns. SCA shall prepare (or cause to be prepared) and file
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(or cause to be filed) on a timely basis all U.S. consolidated federal income
tax returns and consolidated, combined or unitary state income, franchise or
capital tax returns required to
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be filed after the Closing Date in respect of or which include members of both
the SCA Separate Group and the LTM Group for any Taxable Year that ends prior to
or includes the Closing Date. SCA shall cause to be timely paid all taxes shown
on such tax returns. Each such tax return shall be prepared on a basis
consistent with the prior practice of the SCA Group, except as otherwise
required by changes in applicable law. With respect to items for which there is
no such prior practice, (i) SCA shall determine the reporting on such tax
returns of items relating to the transactions contemplated by the Master
Agreement, after consultation with LTM and (ii) SCA shall consult with LTM
regarding the reporting on such tax returns of other items for which there is no
such prior practice. SCA shall provide LTM with copies of the portions of such
tax returns relating to the LTM Group as soon as practicable but in any event no
later than 15 days prior to the due date of such returns (including extensions)
and LTM shall notify SCA of any objections to such tax returns within 10 days
prior to such due date. If SCA and LTM are unable to agree on the method of
preparation of any such tax return, SCA shall file such tax return as prepared,
except that SCA shall treat those items described in clause (ii) of this Section
8 in the manner determined by LTM provided that LTM shall have provided to SCA
an opinion of independent nationally recognized tax accountants or counsel to
the effect that such treatment will not result in the imposition of penalties on
SCA.
9. Contests. SCA and LTM shall promptly notify each other of any
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assessments, audits or proceedings which could result in an adjustment to the
LTM Group Separate Tax Liability for a Prior Year or the Current Year. SCA
shall consult with LTM regarding the conduct of any such audit or proceeding and
shall not settle or compromise any such audit or proceeding except in good faith
and based on the merits of the defense to such adjustment. In the event that
LTM requests that SCA accept a settlement of such adjustment offered by the
relevant taxing authority, SCA shall either accept such settlement as it relates
to LTM, assuming that the relevant taxing authority would accept such
settlement, or agree with LTM that LTM's liability hereunder with respect to
such adjustment shall be limited to an amount calculated on the basis of such
settlement offer and that LTM shall have no liability in excess of such amount
with respect to such adjustment following the date of such request.
10. Carrybacks. LTM shall make, and shall cause each member of the
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LTM Group to make, all available elections under federal, state or local law to
relinquish the entire carryback period with respect to losses, credits and other
tax attributes attributable to members of the LTM Group arising in any Future
Year that could be carried back to a tax return with respect to the Current Year
or Prior Years which included any member of the SCA Separate Group. In the case
of any tax attributes of members of the LTM Group arising in a Future Year for
which no such election is available and which must be carried back, which carry
back would have the effect of reducing the amount of the LTM Group Separate Tax
Liability for the Current Year or Prior Years, SCA shall apply for a refund
relating to the carry back of any such tax attribute and upon receipt of
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any such refund shall promptly pay to LTM the amount of the resulting reduction
in the LTM Group Separate Tax Liability for the relevant Taxable Year, less any
expenses described in the following sentence. LTM shall indemnify SCA for any
reasonable out-of-pocket expenses incurred in an attempt to obtain such refund
provided that SCA provides to LTM evidence, reasonably satisfactory to LTM, as
to the amount of such expenses incurred by SCA.
11. ERISA Indemnity. SCA shall indemnify and hold harmless LTM and
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its Subsidiaries (including the Transferred SPE Subsidiaries) and their
respective officers, directors, successors and assigns from and against any and
all obligations, liabilities or expenses (i) arising out of or relating to any
Benefit Plan (other than a LTM Benefit Plan) with respect to LTM Employees
maintained, sponsored, contributed to, or required to be contributed to, by SCA
or any of its Subsidiaries (other than LTM, LTM's Subsidiaries and the
Transferred SPE Subsidiaries), including liabilities arising under Title IV of
ERISA or (ii) with respect to any liability attributable to the LTM Excluded
Employees, including, without limitation, any liabilities arising under Section
6.12(d) of the Master Agreement. Capitalized terms used in this Section 11 that
are not defined herein shall have the meanings ascribed to them in the Master
Agreement.
12. IMAX Assignment and Assumption Indemnity. Following the Closing,
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LTM shall indemnify and hold harmless SCA and SPE, and their respective
successors and assigns, from all actions, causes of action, suits, debts, dues,
sums of money, accounts, claims and demands arising under (i) that certain Lease
Agreement (the "Ground Lease") dated as of May 21, 1992 between SPE and Lincoln
Metrocenter Partners, L.P., (ii) that certain Letter Agreement (the "Letter
Agreement") dated as of March 3, 1995 between SCA and IMAX Corporation ("IMAX")
(solely to the extent that it relates to the lease of IMAX equipment in San
Francisco, California and specifically not with respect to the lease of IMAX
equipment in Berlin, Germany), (iii) that certain System Lease Agreement (the
"IMAX Lease" and, together with the Ground Lease and the Letter Agreement, the
"Assigned Agreements") dated as of May 28, 1992 between SPE and IMAX,
respectively, by reason of any matter, cause, contract (whether written or
oral), course of dealing or thing whatsoever arising during, or in respect of
the period after the effective date of the assignment of the Assigned
Agreements, in each case to the extent provided in the letter agreement dated
May 14, 1998 attached hereto as Exhibit A.
13. Guaranties and Related Indemnity. LTM shall use its reasonable
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best efforts to be substituted in all respects for SCA and its affiliates,
effective as of the Closing, in respect of all guaranties and similar
obligations in favor of, or for the benefit of, LTM or its subsidiaries, and to
cause SCA and its affiliates to be released from such guaranties or obligations.
Following the Closing, with respect to any such guaranty or
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obligation for which no such substitution and release is effected, LTM shall
indemnify SCA against any costs or expenses in respect of any such guaranty or
obligation.
14. Cooperation. SCA and LTM shall, and shall cause their respective
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affiliates to, reasonably cooperate in the preparation and filing of tax
returns, and the preparation and defense of audits and proceedings relating to
tax returns.
15. Exclusive Agreement. This Agreement and any agreements executed
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in connection herewith (including the Master Agreement and any agreements
executed in connection therewith) constitute the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersede all prior
and contemporaneous agreements and understandings of the parties in connection
therewith.
16. Successors, Governing Law. This Agreement and all of the
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provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
17. Confidentiality. Each party shall hold and cause its consultants
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and advisors to hold in strict confidence, unless compelled to disclose by
judicial or administrative process or, in the opinion of its counsel, by other
requirements of law, all information (other than any such information relating
solely to the business or affairs of such party) concerning the other party
hereto furnished it by such other party or its representatives pursuant to this
Agreement (except to the extent that such information can be shown to have been
(a) previously known by the party to which it was furnished, (b) in the public
domain through no fault of such party, or (c) later lawfully acquired from other
sources by the party to which it was furnished), and each party shall not
release or disclose such information to any other person, except its auditors,
attorneys, financial advisors, bankers and other consultants and advisors who
shall be advised of the provisions of this Section 16. Each party shall be
deemed to have satisfied its obligation to hold confidential information
concerning or supplied by the other party if it exercises the same care as it
takes to preserve confidentiality for its own similar information.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Tax Sharing and Indemnity Agreement as of the date first above written.
SONY CORPORATION OF AMERICA
By /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
LTM HOLDINGS, INC.
By /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President and Controller
Solely for purposes of Section 12 hereof:
SONY PICTURES ENTERTAINMENT INC.
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
and General Counsel
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Exhibit A
LTM Holdings, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
May 14, 1998
SONY PICTURES ENTERTAINMENT INC.
00000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000-0000
RE: LEASE between LINCOLN METROCENTER PARTNERS, as landlord, and SONY
PICTURES ENTERTAINMENT INC., as tenant dated May 21, 1992 (the
"Lincoln Lease") and SYSTEM LEASE AGREEMENT dated May 28, 1992
between IMAX CORPORATION AND SONY PICTURES ENTERTAINMENT INC., as
amended, (THE "IMAX LEASE").
Gentlemen/Gentlewomen:
In order to induce (a) Sony Pictures Entertainment Inc. ("SPE") to assign
to Loews Lincoln Theatre Holding Corp. ("Loews Lincoln") SPE's interest in, and
all the rights, duties and obligations of SPE under (a) the lease between
Lincoln Metrocenter Partners, as landlord, and Sony Pictures Entertainment Inc.,
as tenant dated May 21, 1992 (the "Lincoln Lease") and System Lease Agreement
dated May 28, 1992 between IMAX Corporation and Sony Pictures Entertainment
Inc., as amended (the "IMAX Lease"), and (b) Sony Corporation of America ("SCA")
to assign to Loews California Theatres, Inc., SCA's interest in, and all the
rights, duties and obligations of SCA under, the Letter Agreement with IMAX
Corporation dated March 3, 1995 (the "Letter Agreement") solely to the extent
that it relates to the lease of IMAX equipment in San Francisco, California, LTM
Holdings, Inc. which will be renamed Loews Cineplex Entertainment Corporation,
("LCE"), the holder of all the issued and outstanding stock of Loews Lincoln,
hereby covenants and agrees to, and shall, indemnify, defend, and hold harmless
SPE, SCA, their respective affiliates, and their respective officers, directors
and employees (individually and collectively the "Indemnitee") from and against
any and all losses, liabilities, damages, claims, demands, obligations, actions,
settlements, costs and expenses (including, without limitation, court costs and
attorneys' fees) which the Indemnitee (or any of them) may suffer, sustain,
incur, pay, expend or lay out by virtue, as a result of or in respect of, in
connection with and/or based upon or arising out of, directly or indirectly, any
and/or all of the covenants, agreements, representations, duties and/or
obligations of (i) SPE as the Tenant under the Lincoln Lease and for each and
every breach by LCE or its subsidiaries of any and/or all such covenants,
agreements, representations, warranties, duties and/or obligations by LCE or its
subsidiaries, (ii) SPE under the IMAX Lease and for each and every breach by LCE
or its subsidiaries of any and/or all such covenants, agreements,
representations, warranties, duties and/or obligations by LCE or its
subsidiaries, and (iii) SCA under the Letter Agreement and for each and every
breach by LCE or its subsidiaries of any and/or all such covenants, agreements,
representations, warranties, duties and/or obligations by LCE or its
subsidiaries; excluding any indemnification obligation owing to IMAX under the
IMAX Lease arising out of or in connection with the anti-cartel or other
litigation instituted in Germany by Big Screen Cinema Projektgesellschaft mbH
against IMAX pertaining to the construction and installation of IMAX equipment
at the Sony Center in Berlin.
The Indemnitee shall promptly notify LCE of any claim or other matter with
respect to which indemnification will be sought hereunder; provided, however,
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that the failure so to notify LCE of such claim shall not relieve LCE of its
obligations hereunder.
LCE shall control the defense and settlement of any such claim or other
matter in reasonable cooperation with the Indemnitee by counsel of its own
choice, which counsel shall be reasonably satisfactory to Indemnitee except that
(i) other than by the payment of monetary damages, LCE shall not enter into any
settlement or other agreement binding upon the Indemnitee without its consent,
(ii) the Indemnitee may participate in any action, suit, or other legal
proceeding as to which indemnification is provided hereunder, at its own expense
by counsel of its own choice, and (iii) if the Indemnitee shall have reasonably
concluded and notified LCE that a conflict may exist between the positions of
LCE and the Indemnitee, that there may be specific defenses available to the
Indemnitee different from or additional to those available to LCE or that such
claim involves or could affect matters beyond the scope of the obligation
herein, in which event LCE shall not have the right to direct the defense of
such aspects of the claim or other matter as are specified in the notice and the
Indemnitee shall at LCE's cost and expense conduct the defense of said aspects
of such claim or other matter.
Very truly yours,
LTM HOLDINGS, INC.
by /s/ Xxxx X. XxXxxxx, Xx.
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its Senior Vice President, General Counsel
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and Assistant Secretary
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Accepted and Agreed to
SONY PICTURES ENTERTAINMENT INC.
by /s/ Xxxxxx X. Xxxxxx
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its Executive Vice President and
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General Counsel
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SONY CORPORATION OF AMERICA
by /s/ Xxxxxxx X. Xxxxx
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its Executive Vice President
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