VEDDERPRICE ® Finance and Transactions Group October 2008 The Practical Lender

Cross-Border Lending

Introduction IRC § 956-The “Deemed subsidiary’s current and accumulated earnings and Globalization of business has Dividend Rule” profi ts are less than the amount accelerated. In order to remain Under Internal Revenue Code of the U.S. obligation, then all competitive, lenders must be (“IRC”) § 956, the obligation of a of the foreign subsidiary’s prepared to structure U.S. corporate parent to a future earnings and profi ts will transactions with cross-border lender will trigger a “deemed be subject to the deemed lending features—loans to dividend” of the controlled distribution up to the amount of foreign borrowers or loans foreign subsidiary’s current and the U.S. loan obligation (after against the value of foreign accumulated earnings and subtracting prior deemed borrowers’ assets. Cross- profi ts up to the amount of the distributions). border lending requires lenders U.S. loan obligation if any one Borrowers and lenders often to address issues related to of the following three events assume that a U.S. parent taxes, security and available occurs: (a) 66⅔ percent or cannot the stock of a remedies. This article briefl y more of the foreign subsidiary’s foreign subsidiary and that a discusses these issues and outstanding voting stock is foreign subsidiary cannot focuses on the of Canada pledged to the U.S. parent’s guarantee or pledge its assets and Mexico relative to security lender (accompanied by certain in support of the loan to the and insolvency. Practical tips restrictions on the disposition of U.S. parent because of the tax are denoted in bold. the foreign subsidiary’s assets); consequences outlined above. (b) the foreign subsidiary is a Tax Issues However, there are many guarantor with respect to the situations in which the Two tax issues that must be loan made to the U.S. parent; or application of IRC § 956 has no addressed in every cross- (c) the foreign subsidiary grants material adverse impact on the border transaction are: (1) the a in its assets borrower including: (a) the U.S. “deemed dividend” rule; to secure the loan to the U.S. foreign subsidiary has no and (2) the foreign jurisdiction’s parent. accumulated earnings and withholding tax rules. Usually If a deemed distribution is profi ts and is not expected to the deemed dividend issue triggered, all of the foreign have any in the future, or the comes to the forefront when a subsidiary’s current and foreign subsidiary historically borrower informs a lender that accumulated earnings and repatriates its income to the it can only take a pledge of less profi ts are immediately subject U.S.; (b) the consolidated tax than 2/3 of a controlled foreign to U.S. income tax, up to the group has operating losses that subsidiary’s stock. amount of the U.S. loan reduce or eliminate the deemed obligation. If the foreign distribution; (c) the IRC already VEDDERPRICE

requires inclusion of the foreign dividends) paid by a resident of borrower to compensate the subsidiary’s earnings and the foreign jurisdiction to a lender for any withholding tax profi ts in the U.S. parent’s nonresident. Thus, a U.S. imposed by a foreign income prior to repatriation for lender that contemplates jurisdiction. As a result of other reasons; (d) U.S. tax making a loan to a foreign withholding taxes, a local credits for taxes paid by the borrower must consider lending source in the foreign subsidiary in the foreign whether the laws of the jurisdiction of the foreign jurisdiction may largely offset foreign jurisdiction will subsidiary may be necessary. the U.S. tax liability from the require that a portion of its Tax rules, in addition to the deemed dividend; and (e) the interest payment be withheld deemed dividend and foreign entity is treated like a and paid to a foreign taxing withholding tax rules, may partnership for U.S. tax authority. The amount of apply to a transaction and may purposes. withholding tax imposed may have an effect upon the loan Thus, the application of IRC be reduced or eliminated by structure. The lender will need § 956 may not have a material treaty between the jurisdictions to consider tax rules in the U.S. adverse impact, depending on or by other legislation. An and in the foreign jurisdiction. the circumstances. The lender amendment to the Canada-U.S. should require the borrower treaty was signed on Security to provide an analysis of the September 21, 2007, which, Many countries do not have a impact of IRC § 956 before when ratifi ed by both countries, uniform procedure for taking a deciding that it cannot obtain will eliminate withholding tax on security interest in tangible and a pledge of the equity most non-related party interest. intangible assets sought by interests in, or a guaranty or In addition, Canada has secured lenders, such as the asset pledge from, a foreign enacted independent legislation Uniform Commercial Code (the subsidiary. In situations where that has eliminated withholding “UCC”) in the U.S. and the IRC § 956 does have a material tax on most non-related party Personal Security Act adverse impact, other payments of interest on or after (the “PPSA”) in Canada (or structuring alternatives will January 1, 2008. Thus, with pursuant to the Civil Code of need to be considered. For certain exceptions, after (the “CCQ”) in the example, the lender’s affi liate January 1, 2008, U.S. lenders Province of Quebec). Instead, organized in a foreign are able to make cross-border security in many countries is jurisdiction may be able to loan loans to Canadian borrowers dictated by multiple statutory directly to a subsidiary without the imposition of a schemes and common , organized in that jurisdiction withholding tax on interest which are sometimes and close any collateral payments. The treaty between overlapping and contradictory. defi ciencies by obtaining the U.S. and Mexico limits the The lack of a unifi ed scheme collateral from subsidiaries withholding tax on interest paid for taking security often deters located in other foreign by a resident of Mexico to a U.S. lenders from making loans jurisdictions. resident bank of the U.S. to 4.9 to foreign borrowers or against percent. foreign assets located in those Most lenders consider any Withholding Tax Issues jurisdictions. withholding tax liability to be the In the U.S., lenders are Many foreign jurisdictions responsibility of the borrower. accustomed to being able to impose a withholding tax on As a result, most loan take a blanket or fl oating certain income (e.g., interest, agreements contain a “gross- over the current and future management and up” clause, which requires the fees and assets of its borrower to secure

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current or future debt. This is location of the debtor. The security not the case in some foreign location of the debtor, within system is set forth in the CCQ. jurisdictions. In some countries, the meaning of the UCC, will In Quebec, the allows the lender may be able to take a differ depending on the type of a lender to obtain a charge on pledge only over specifi cally debtor and the laws of the current and future movable or described existing assets and jurisdiction in which the debtor immovable property, and allows may not take a lien on any after- is located. UCC § 9-301(1) for registration of security under acquired property. In other does not change depending the Register of Personal and countries, the lender may be upon the location of the Movable Real Rights able to take a lien over after- collateral. However, it would (“RPMRR”). Thus, in Canada, acquired property, but not with be a mistake for a lender to lenders may obtain a fl oating ease (e.g., the account debtors rely on UCC § 9-301(1) as lien over accounts, inventory must be specifi cally identifi ed granting it the rights the lender and other assets. With certain and notifi ed of the lien). The U. needs against a foreign exceptions, a lien is perfected, S. lender’s inability to take a borrower or in collateral in a PPSA jurisdiction, by fi ling blanket lien over current and located in or arising from a a fi nancing statement in the future assets to secure current foreign jurisdiction. The UCC personal property security and future indebtedness often will not supply the law registry in the applicable impedes a U.S. lender’s ability to determine the perfection province or territory and, in to make asset-based loans in and/or priority of the U.S. Quebec, by fi ling a registration those jurisdictions. lender’s lien with respect to with the RPMRR. Like the There is large variation from a foreign borrower or for UCC, the PPSA allows a lender country to country in the scope collateral located in or to pre-fi le, but the CCQ does of assets that may be covered arising from a foreign not; under the CCQ, an by a lien, whether after-acquired jurisdiction. executed security agreement or property may be covered by a hypothec is needed to fi le. lien, the priority of creditors that Collateral Availability Both the PPSA and CCQ may be repaid ahead of a permit a lender to obtain The following is a brief lender’s lien and the procedures security in deposit accounts. description of collateral relating to the realization on the Unlike the UCC, the PPSA and availability in Canada and lender’s collateral. Generally, CCQ allow the lender to perfect Mexico. The primary collateral jurisdictions its security interest in deposit relied upon by asset based (e.g., the UK) are thought to accounts through registration lenders, accounts receivable, be more fl oating lien friendly rather than control. In addition, inventory and bank accounts, than jurisdictions many Canadian banks in is emphasized. (e.g., France), but it is easy to Canada’s provinces and Canada. In Canada, nine overgeneralize. The lender territories will enter into lockbox out of ten provinces and all must look to and be familiar with and blocked account three territories have adopted the law of the jurisdiction in arrangements. Despite the (with some variations) the which the collateral is situated. similarities between the UCC, PPSA. The PPSA resembles Hiring competent local counsel PPSA and CCQ in the collateral the UCC and, in particular, the is essential. that may be obtained, there are PPSA recognizes the concept UCC § 9-301(1) provides that important differences including, of a fl oating lien over debtor’s the perfection of a without limitation, with respect current and future assets to nonpossessory security interest to the priority of the lender’s secure current and future in collateral is governed by lien. indebtedness. Quebec’s

3 VEDDERPRICE

Mexico. Beginning in 2000 guaranty trust to be effective description of remedies and continuing in 2003, Mexico against third parties, a available to secured lenders enacted various amendments registration form similar to but outside of insolvency to its commercial laws, which requiring more information than proceedings and of insolvency created two new security a UCC fi nancing statement proceedings in each of devices for secured lenders: must be registered in the Public Canada and Mexico follows in the nonpossessory pledge and Registry of Commerce at the the table set forth at the end of guaranty trust. As a result, a place of the debtor’s domicile, this article. secured creditor can take a which is transmitted to a central blanket lien over all present fi ling offi ce in Mexico City. Enforcement Risk Areas and future movable personal Special registrations are Each foreign jurisdiction will property in Mexico including required for certain types of have its particular enforcement accounts, inventory and collateral. risks that the secured lender proceeds. If the will need to understand and nonpossessory pledge is used, Enforcement; Insolvency address in its loan the debtor retains and The law of the foreign documentation and structuring possession of the secured jurisdiction dictates the types of including, without limitation, assets. If the guaranty trust is enforcement actions available priming claims, title retention used, the borrower remains in to lender. In some jurisdictions, clauses (e.g., a conditional possession of the secured for example, the self-help sale agreement or fi nancing assets but transfers title to the remedies (e.g., direct collection lease) and anti-assignment secured assets to a trustee as from account debtors) to which provisions. The lender will collateral to secure payment of U.S. lenders are accustomed want to establish borrowing the obligations of the debtor to are not available. A myriad of base reserves or consider the lender. local laws of the foreign obtaining insurance or Only Mexican banks and jurisdiction may affect the ability consider alternative structures other prescribed Mexican of the lender to realize on its to address priming claims. fi nancial institutions can act as collateral. Insolvency The lender needs to trustees. The guaranty trust is proceedings and practices vary understand whether notice of a generally used in larger from jurisdiction to jurisdiction title retention clause is transactions because it is more and may be very different from required to be fi led in a public expensive (the trustee may U.S. proceedings. registry to be enforceable charge an initial fee, annual The lender needs to against a secured lender. If fees and enforcement fee) understand the availability of there is no such requirement than the nonpossessory remedies and insolvency and lender fails to discover the pledge. The two main procedures of the foreign existence of a title retention advantages of the guaranty jurisdiction in determining clause, it can mean for trust over the nonpossessory whether and how to lend in that example, that inventory on pledge are that it: (i) allows for jurisdiction. For example, a which lender has extended nonjudicial enforcement; and lender lending in Mexico would credit and which appears to be (ii) separates the trust property want to consider using a covered by the lender’s lien is from the debtor’s estate and guaranty trust rather than a not actually part of the lender’s beyond the reach of its nonpossessory pledge so that collateral until title passes to creditors (even in an the lender would have access the borrower upon payment of insolvency proceeding). For to self-help remedies. A brief the invoice. the nonpossessory pledge and

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The lender also needs to risk, foreign currency loans, loan transactions. Lenders will know whether there is logistical concerns (such as time need to consider the legislation in the foreign differences) and a variety of application of U.S. laws not jurisdiction similar to the UCC other matters pertaining to the applicable to domestic loan that generally renders foreign jurisdiction. For transactions and the laws of ineffective any term in an example, the loan documents the foreign jurisdiction. The agreement between an account should require the borrower to laws of the foreign jurisdiction debtor and the borrower that compensate the lender for any may operate very differently prohibits or restricts the loss that may result from from U.S. law. Lenders should assignment of, or creation or changes in the exchange rate consult knowledgeable counsel enforcement of a security between the time a judgment is to properly structure their loan interest in, an account. The lack entered in a foreign jurisdiction transactions. of such legislation can mean and currency and the time that a secured party seeking to payment is received in U.S. Author: Paul R. Hoffman force an account debtor to pay it funds. Editors: Michael A. Nemeroff and might be faced with the defense As another example, the U.S. Thomas E. Schnur that the borrower breached its lender may want to set dollar contract by assigning to the limitations on foreign currency * * * lender the right to payment from loans, allow for the unavailability the account debtor. In these of an agreed-upon foreign We wish to thank Marc jurisdictions the lender may currency and require the Mercier of Cassels Brock & need require its borrower to borrower to compensate lender Blackwell LLP for his insights obtain consent of the account for increased costs related to the and assistance regarding the debtor to the security interest. offering of the foreign currency. laws of Canada, and Humberto While a full description of The lender will need to consider Gayou and Fernando enforcement, insolvency and the choice-of-law and choice-of- Hernandez of Lexcorp enforcement risk in Canada and forum provisions more carefully Abogados, S.C. for their Mexico are beyond the scope of in a cross-border loan insights and assistance this article, the table set forth at transaction. For example, the regarding the laws of Mexico. the end of this article lender will want to preserve its summarizes those subjects option to sue the debtor in the If you have any questions or together with collateral security debtor’s jurisdiction if the lender wish to discuss this topic matters discussed above by believes that forum would be further, please contact Paul R. comparing them with the necessary to or improve its Hoffman at 312-609-7733, corresponding U.S. legal enforcement rights. [email protected], provisions with which U.S. Michael A. Nemeroff at 312- lenders are familiar. Conclusion 609-7858, mnemeroff@ vedderprice.com, or Drafting Issues The globalization of business has required many U.S. lenders Thomas E. Schnur at 312-609- The lender in a cross-border to make loans to foreign 7715, tschnur@vedderprice. loan transaction must address a borrowers or against foreign com, any member of our variety of other issues not assets. While cross-border Finance and Transactions encountered in domestic loan lending often provides great Group listed on the last page transactions. The lender’s loan opportunities for lenders, those or your Vedder Price contact documents may need to be opportunities entail issues and attorney. modifi ed to address currency risks not present in domestic

5 VEDDERPRICE

Comparison of Security and Insolvency Laws

Characteristics United States Canada Mexico

SECURITY

Scope and UCC is single legal All provinces (other than Multiple mechanisms in Uniformity framework applicable to Quebec) and the three different legal frameworks most consensual in territories have adopted for taking consensual personal property PPSA as single legal liens over personal framework applicable to property (e.g., pledges, most consensual liens in trusts, consignments, title personal property retention, etc.)

Perfection by Allows perfection by fi ling Allows perfection by fi ling Allows perfection by fi ling Filing for most types personal for most types of personal with respect to most types property property collateral of personal property collateral

Notice Registry For most types of For most types of For most types of collateral, fi nancing collateral, PPSA fi nancing collateral, registration statement to be fi led in statement must be fi led in form to be registered in the applicable Secretary the applicable PPSA the Public Registry of of State Offi ce province or territory, and Commerce in place of statutory form to be fi led debtor’s business, which in the applicable registry is transmitted to a central within Quebec fi ling offi ce in Mexico City

After-Acquired Security interest may Both PPSA and CCQ Both guaranty trust and Property and include after-acquired provide for liens on after- nonpossessory pledge Proceeds property and proceeds acquired property and may include after- proceeds acquired property and proceeds

Future Advances Allows collateral to serve Both PPSA and CCQ Allows collateral to serve as collateral for future allow collateral to serve as collateral for future advances as collateral for future advances advances

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Comparison of Security and Insolvency Laws

Characteristics United States Canada Mexico Self-Help Self-help remedies are Self-help remedies are Self-help remedies are Remedies available without a breach available. Receivers are available with respect to a of the peace often utilized by lenders guaranty trust. With outside of court respect to a proceedings to take nonpossessory pledge, possession of and sell however, the debtor must collateral. However, in be notifi ed of the Quebec, if a debtor does proposed repossession not voluntarily surrender and the procedure the collateral to lender, appears to, essentially, court intervention will be require debtor’s consent. required Further, signifi cant delays in court have been encountered in the past and it is not yet clear whether the new expedited procedures will signifi cantly alter this experience

ENFORCEMENT; This summary relates to INSOLVENCY the Companies’ Creditors The insolvency Arrangement Act comments in this (“CCAA”) and not the chart relate to Bankruptcy and business Insolvency Act (“BIA”) reorganizations unless otherwise indicated below

Commencement Debtor or at least three Typically the debtor, but a Debtor, a creditor or the creditors holding creditor could commence public prosecutor unsecured, noncontingent, undisputed claims totaling at least $13,475

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Comparison of Security and Insolvency Laws

Characteristics United States Canada Mexico Solvency Debtor need not be Debtor must be insolvent Debtor has failed to pay at Requirements insolvent. If debtor with aggregate liabilities least two creditors, at contests an involuntary of at least $5 million. least 35 percent of the proceeding, the creditors There is no specifi c test debtor’s obligations are at must prove debtor is for insolvency, but the least 30 days’ past due generally not paying courts have utilized the and the debtor lacks undisputed debts as they cash fl ow and asset assets to pay at least 80 come due valuation tests of the BIA percent of its debts. An examiner is appointed to confi rm the foregoing requirements are satisfi ed

Control Rights Debtor generally in Debtor generally Debtor generally control. A trustee or continues in control. A continues in control. examiner may be monitor is appointed but Conciliator is appointed appointed in certain generally does not play an to, among other things, circumstances active role in debtor’s mediate between debtor management and creditors to achieve agreement on a plan of reorganization and oversee the operations of debtor

Automatic Stay Most creditor actions are Stays are not automatic, Creditor execution and Against Creditor automatically stayed but the court will usually foreclosure actions are Actions grant broad stay against generally stayed with creditor action in the initial exceptions for certain order, which the court labor claims and certain may continue indefi nitely secured creditor actions

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Comparison of Security and Insolvency Laws

Characteristics United States Canada Mexico Plan Acceptance; A reorganization plan is Secured and unsecured Plan must be approved by Cram Down subject to creditor vote creditors in separate 50 percent in the and court approval. A classes. Each class must aggregate value of class accepts the plan accept by majority in unsecured and secured with a vote of at least two number and two-thirds in claims. Secured creditors thirds in value and one- value. There is no cram who do not agree to the half in number. A plan down plan may begin can be confi rmed over a foreclosure proceedings dissenting class (i.e., a unless plan provides for cram down) if the plan is payment of the value of accepted by one impaired their claims. There is, as class, the nonaccepting a practical matter, no classes receive as much cram down as they would in a Chapter 7 and the plan is fair and equitable to such creditors

New Financing in New fi nancing may be Does not currently have Mexico’s insolvency law Reorganization given priority over existing specifi c provisions dealing does not have detailed secured claims under with new fi nancing having provisions, and it is not certain circumstances priority over existing yet clear whether a debtor secured claims. New may obtain new fi nancing fi nancing with such with priority over existing priority is currently not fi nancing typical but may occur under the CCAA. Canada is considering amendments to the CCAA that would explicitly allow the courts to grant priming liens in favor of new DIP lenders

Outside Time There is no outside time Under CCAA, there is no Conciliation agreement Limit of Plan limit for the reorganization outside time limit in which must be reached within proceeding to be plan must be accepted 185 days, but may be concluded. However, the extended for two 90-day debtor loses the exclusive periods with court right to fi le a plan after approval 120 days after the order for relief as been entered

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Comparison of Security and Insolvency Laws

Characteristics United States Canada Mexico Priming Claims Only claims relating to the Currently, certain Claims for salary and preservation of specifi c governmental obligations, severance for up to two collateral can have priority including, employee years and expenses of over existing secured income taxes, realizing collateral may be claims employment insurance paid out of assets contributions, pension securing a nonpossessory obligations and sales pledge taxes. Canada is considering amendments to the CCAA that would allow the courts to grant priming liens or claims for: (i) employee wages up to $2,000 per employee; (ii) certain charges for unpaid normal pension contributions; (iii) administrative charges for the monitor, the fi nancial, legal and other experts of the monitor, the debtor and other “interested persons”; (iv) charges to secure indemnity obligations of the debtor to directors and offi cers; (v) charges in favor of persons providing DIP fi nancing; and (vi) charges in favor of “critical suppliers”

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Comparison of Security and Insolvency Laws

Characteristics United States Canada Mexico Avoidable Preferences and Intercompany guaranties Transaction entered into Transaction fraudulent transfers may have generally not been 270 days before an be avoided under the successfully challenged insolvency judgment (or Bankruptcy Code. under federal bankruptcy longer to the actual date Fraudulent transfer statutes or provincial of actual insolvency if includes both constructive fraudulent transfer ordered by the bankruptcy fraudulent transfers (those provisions court upon the request of made without reasonable a creditor or the equivalent value while the conciliator) may be set debtor is insolvent or aside if it is considered to which render the debtor prejudice creditors’ insolvent or with interest, including unreasonably small transactions in which the capital) and those made debtor received no with actual intent, to consideration or hinder, delay and defraud consideration signifi cantly below fair market value

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FEDERAL TAX NOTICE: Treasury Regulations require us to inform you that any federal tax advice contained herein is not intended or written to be used, and cannot be used by any person or entity, for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code.

About Vedder Price Thomas E. Schnur W. Tyler Adkerson VEDDERPRICE ® Vedder Price P.C. is a national business- Dean N. Gerber Stephanie K. Hor-Chen oriented law fi rm with over 260 attorneys in John R. Obiala Earnest G. Gregory 222 NORTH LASALLE STREET Chicago, New York and Washington, D.C. Jonathan H. Bogaard Eliza Hommel Peterson William A. Kummerer Bridget A. Adaska CHICAGO, ILLINOIS 60601 Michael G. Beemer Dozie Okpalaobieri The Finance and Transactions Group 312-609-7500 FAX: 312-609-5005 Robert J. Moran David A. Bowen The Finance and Transactions Group of Dalius F. Vasys Laura T. Guest Vedder Price actively represents publicly held Daniel T. Sherlock Timothy L. Cox 1633 BROADWAY, 47th FLOOR and private corporations, fi nanciers, leveraged Douglas M. Hambleton Rachael N Harris NEW YORK, NEW YORK 10019 buy-out fi rms, private equity funds, venture Timothy W. O’Donnell Benjamin J. Schmidt capitalists, lenders, and related parties in a 212-407-7700 FAX: 212-407-7799 Lane R. Moyer Courtney W. Dean broad range of matters, including mergers Jeffrey C. Davis and acquisitions; equity and debt fi nancing; Michael M. Eidelman New York 875 15th STREET NW, SUITE 725 mezzanine fi nancing; venture capital; private Geoffrey R. Kass Steven R. Berger WASHINGTON, D.C. 20005 equity investments; and related transactions. William J. Bettman Denise L. Blau 202-312-3320 FAX: 202-312-3322 Paul R. Hoffman John E. Bradley The Practical Lender is published periodically John T. Blatchford Michael J. Edelman by the law fi rm of Vedder Price P.C. It is Dana S. Armagno John I. Karesh www.vedderprice.com intended to keep clients and interested parties N. Paul Coyle Jennifer A. Johnson generally informed about issues related to Matthew T. O’Connor Michael C. Nissim commercial fi nance. It is not a substitute for Peter J. Kelly Francis X. Nolan III professional advice. For purposes of the New Ernest W. Torain, Jr. Stewart Reifl er York State Bar Rules, this bulletin may be Kathryn L. Stevens Michael L. Schein considered ATTORNEY ADVERTISING. Prior Joseph H. Kye Ronald Scheinberg results do not guarantee a similar outcome. Vivek G. Bhatt Donald A. Wassall Eric J. Rietz Amy S. Berns © 2008 Vedder Price P.C. Reproduction of Allen J. Gable Daniel J. Barlin this bulletin is permitted only with credit to David P. Kaminski Vedder Price. Adam S. Lewis Washington, D.C. Jennifer Durham King Principal Members of the Finance Douglas Ochs Adler Dennis P. Lindell and Transactions Group Caryl Ben Basat James W. Morrissey Edward K. Gross Chicago Venu V. Talanki David M. Hernandez Michael A. Nemeroff (Chair) Nicholas S. Harned Philip M. Livingston Robert J. Stucker John M. Gall Theresa Mary Peyton Thomas P. Desmond Marie H. Godush Erin Spry Staton John T. McEnroe Ryan O. Lawlor Daniel O’Rourke Charles W. Murphy Guy E. Snyder David J. Borkon Douglas J. Lipke Nathaniel A. Tiffany

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