EXHIBIT 10(s)
AMENDMENT AND CONSENT
AMENDMENT AND CONSENT dated as of February 7, 2002 (this "Agreement")
by the undersigned persons (the "Parties").
PRELIMINARY STATEMENTS
A. The Parties are parties to certain Operative Documents
referred to in the Amended and Restated Participation Agreement dated as of
September 2, 1998 (the "Participation Agreement") among Xxxxxxxx Communications,
LLC, formerly Xxxxxxxx Communications, Inc. ("WCLLC"), State Street Bank and
Trust Company of Connecticut, National Association, not in its individual
capacity except as expressly set forth therein, but solely as Trustee (the
"Trustee"), the persons named therein as note purchasers and their permitted
successors and assigns (the "Note Holders"), the persons named therein as
certificate purchasers and their permitted successors and assigns (the
"Certificate Holders"), the persons named therein as APA Purchasers and their
permitted successors and assigns (the "APA Purchasers"), State Street Bank and
Trust Company ("State Street"), not in its individual capacity but solely as
collateral agent (the "Collateral Agent"), and Citibank, N.A., in its capacity
as agent for the Note Holders and the Certificate Holders (the "Agent").
B. The Xxxxxxxx Companies, Inc. (the "Guarantor"), the
Trustee, the Collateral Agent, the Agent and Citibank, N.A., as agent for the
APA Purchasers, are parties to the Second Amended and Restated Guaranty
Agreement, dated as of August 17, 2000 (as amended through the date hereof, the
"Guaranty").
C. The Guarantor has requested certain amendments to the
Guaranty.
D. The Parties, other than the Guarantor, are willing to
consent to such amendments, subject to the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, (i) terms
defined in the first paragraph, preliminary statements or other sections of this
Agreement shall have the meanings set forth therein, and (ii) capitalized terms
used in this Agreement and not otherwise defined herein shall have the meanings
set forth in Appendix A to the Participation Agreement and the other Operative
Documents referred to therein.
ARTICLE II
AMENDMENTS
2.1 Amendment of Section 1.01. Section 1.01 of the Guaranty is
hereby amended as follows:
(a) The definition of "Debt" in such Section 1.01 is hereby
amended and restated to read in its entirety as follows:
"Debt" means, in the case of any Person, (i) indebtedness of
such Person for borrowed money, (ii) obligations of such Person
evidenced by bonds, debentures or notes, (iii) obligations of such
Person to pay the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of business), (iv) monetary obligations of such
Person as lessee under leases that are, in accordance with generally
accepted accounting principles, recorded as capital leases, (v)
obligations of such Person under guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses (i) through (iv) of this definition and (vi) indebtedness or
obligations of others of the kinds referred to in clauses (i) through
(v) of this definition secured by any Lien on or in respect of any
property of such Person; provided, however, that (w) Debt shall not
include any obligations of the Guarantor in respect of the FELINE PACS;
(x) Debt shall not include any obligation under or resulting from any
agreement referred to in paragraph (y) of Schedule I; (y) in the case
of the Guarantor, Debt shall not include any contingent obligation of
the Guarantor relating to indebtedness incurred by any Xxxxxxxx SPV,
WCG or a WCG Subsidiary pursuant to the WCG Structured Financing
(except that in the event that the WCG Refinancing Transaction shall
have occurred, then Debt shall include the aggregate amount of the WCG
Structured Financing for which the Guarantor or any of its Subsidiaries
shall have become directly and primarily liable); and (z) it is the
understanding of the parties hereto that Debt shall not include any
monetary obligations or guaranties of monetary obligations of Persons
as lessee under leases that are, in accordance with generally accepted
accounting principles, recorded as operating leases.
(b) The following definition of "FELINE PACS" is hereby
inserted in the alphabetically appropriate location in such Section 1.01:
"FELINE PACS" means those certain units, as described in the
Guarantor's prospectus supplement dated January 7, 2002, issued by the
Guarantor in January, 2002 in an aggregate face amount of
$1,100,000,000.
(c) The definition of "Net Worth" in such Section 1.01 is
hereby amended and restated to read in its entirety as follows:
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"Net Worth" of any Person means, as of any date of
determination the excess of total assets of such Person over total
liabilities of such Person, total assets and total liabilities each to
be determined in accordance with generally accepted accounting
principles; provided, however, that for purposes of calculating Net
Worth, total liabilities shall not include any obligations of the
Guarantor in respect of the FELINE PACS.
(d) The definition of "WCG Note" is hereby inserted in the
alphabetically appropriate location in such Section 1.01:
"WCG Note" means that certain promissory note dated March 28,
2001 issued by WCG to WCG Note Trust, a Delaware business trust, in a
principal amount of $1,500,000,000 with a maturity date of March 31,
2008.
(e) The definition of "WCG Refinancing Transaction" is hereby
inserted in the alphabetically appropriate location in such Section 1.01:
"WCG Refinancing Transaction" means any transaction or series
of related transactions pursuant to which the Guarantor or any
Subsidiary of the Guarantor becomes directly and primarily liable to
the holders of the WCG Senior Notes for an aggregate amount not
exceeding the outstanding principal amount of the WCG Senior Notes,
together with all accrued and unpaid interest thereon, any fees, and
any premiums or make-whole payments payable as a result of a prepayment
or early redemption of the WCG Senior Notes, including, without
limitation, by means of (i) any amendment to the transaction documents
pursuant to which the WCG Senior Notes were issued, (ii) an exchange
offer or tender offer for the WCG Senior Notes or the WCG Note in
consideration for which the Guarantor or any Subsidiary of the
Guarantor issues debt securities of the Guarantor or any Subsidiary of
the Guarantor, (iii) any redemption or repurchase, in whole or in part,
of the WCG Senior Notes by the Guarantor or any Subsidiary of the
Guarantor, (iv) any exercise of the "Share Trust Release Option" as
defined in the transaction documents pursuant to which the WCG Senior
Notes were issued, or (v) the Guarantor or any Subsidiary of the
Guarantor making any payments in respect of the WCG Senior Notes or the
WCG Note.
(f) The definition of "WCG Reimbursement Obligations" is
hereby inserted in the alphabetically appropriate location in such Section 1.01:
"WCG Reimbursement Obligations" means any obligations of any
WCG Subsidiary in favor of the Guarantor, any Subsidiary of the
Guarantor or the WCG Senior Notes Issuer pursuant to which such WCG
Subsidiary has agreed to pay the Guarantor, any Subsidiary of the
Guarantor or the WCG Senior Notes Issuer an amount equal to or less
than the total amount of the obligations incurred by the Guarantor
and/or its Subsidiaries in connection with the WCG Refinancing
Transaction, including, without limitation, in respect of principal,
interest, fees and any premiums or make-whole payments payable as a
result of a prepayment or early redemption of the WCG Senior Notes.
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(g) The definition of "WCG Senior Notes" is hereby inserted in
the alphabetically appropriate location in such Section 1.01:
"WCG Senior Notes" means those certain 8.25% Senior Secured
Notes due 2004 in an aggregate principal amount of $1,400,000,000
issued by the WCG Senior Notes Issuer.
(h) The definition of "WCG Senior Notes Issuer" is hereby
inserted in the alphabetically appropriate location in such Section 1.01:
"WCG Senior Notes Issuer" means, collectively, WCG Note Trust,
a Delaware business trust, and WCG Note Corp., Inc., a Delaware corporation.
2.2 Amendment of Section 4.02. Section 4.02 of the Guaranty is
hereby amended as follows:
(a) Clause (c) of Section 4.02 is hereby amended by deleting
the period at the end of subclause (iv) thereof, inserting in its place a
semicolon and inserting the following new subclause (v) immediately following
the existing clause (iv):
"(v) Xxxxxxxx Pipeline Company, LLC from (1) selling,
conveying or otherwise transferring all or substantially all of its
assets to another Person or (2) merging or consolidating with or into
another Person, in either case, for fair-market value and on
commercially reasonable terms and conditions in the good faith judgment
of the Guarantor."
(b) Clause (e) of Section 4.02 is hereby amended and restated
to read in its entirety as follows:
"(e) Loans and Advances; Investments. Make or permit to remain
outstanding, or allow any of its Subsidiaries to make or permit to
remain outstanding, any loan or advance to, or own, purchase or acquire
any obligations or debt securities of, any WCG Subsidiary, except that
the Guarantor and its Subsidiaries may (i) permit to remain outstanding
loans and advances to a WCG Subsidiary existing as of the date hereof
and listed on Exhibit A hereof (and such WCG Subsidiaries may permit
such loans and advances to remain outstanding), (ii) purchase or
acquire the WCG Senior Notes or the WCG Note pursuant to the WCG
Refinancing Transaction, and (iii) purchase or acquire and permit to
remain outstanding, the WCG Reimbursement Obligations. Except for those
investments in existence on the date hereof and listed on Exhibit A
hereof, purchases or acquisitions pursuant to the WCG Refinancing
Transaction and purchases or acquisitions of WCG Reimbursement
Obligations, the Guarantor shall not, and shall not permit any of its
Subsidiaries to, acquire or otherwise invest in any stock or other
equity or other ownership interest in a WCG Subsidiary."
(c) Clause (i) of Section 4.02 is hereby amended by deleting
the period at the end of the existing clause (i) and inserting in its place the
following:
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"; provided, however, that nothing contained herein shall
prohibit or otherwise restrict the ability of the Guarantor or any
Subsidiary of the Guarantor from incurring liability pursuant to the
WCG Refinancing Transaction."
ARTICLE III
REPRESENTATION AND WARRANTIES
3.1 Representations and Warranties of the Guarantor. To induce
the other Parties to enter into this Agreement, the Guarantor hereby reaffirms
as to itself and its Subsidiaries, as of the date hereof, its representations
and warranties contained in Section 3.01 of the Guaranty (except to the extent
such representations and warranties relate solely to an earlier date) and
additionally represents and warrants as follows:
(a) The Guarantor is duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
corporate powers and all governmental licenses, authorizations,
certificates, consents and approvals required to carry on its business
as now conducted in all material respects, except for those licenses,
authorizations, certificates, consents and approvals which the failure
to have could not reasonably be expected to have a material adverse
effect on the business, assets, condition or operation of the Guarantor
and its Subsidiaries taken as a whole. Each Material Subsidiary of the
Guarantor is duly organized or validly formed, validly existing and (if
applicable) in good standing under the laws of its jurisdiction of
incorporation or formation, except where the failure to be so
organized, existing and in good standing could not reasonably be
expected to have a material adverse effect on the business, assets,
condition or operations of the Guarantor and its Subsidiaries taken as
a whole. Each Material Subsidiary of the Guarantor has all corporate or
limited liability company powers and all governmental licenses,
authorizations, certificates, consents and approvals required to carry
on its business as now conducted in all material respects, except for
those licenses, authorizations, certificates, consents and approvals
which the failure to have could not reasonably be expected to have a
material adverse effect on the business, assets, condition or operation
of the Guarantor and its Subsidiaries taken as a whole.
(b) The execution, delivery and performance by the Guarantor
of this Agreement and the consummation of the transactions contemplated
by this Agreement are within the Guarantor's corporate powers, have
been duly authorized by all necessary corporate action, do not
contravene (i) the Guarantor's charter or by-laws or (ii) any law or
any contractual restriction binding on or affecting the Guarantor and
will not result in or require the creation or imposition of any Lien.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Guarantor of this Agreement or the consummation of the transactions
contemplated by this Agreement.
(d) This Agreement has been duly executed and delivered by the
Guarantor. This Agreement and the Guaranty as amended by this Agreement
are the legal, valid and
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binding obligations of the Guarantor enforceable against the Guarantor
in accordance with its terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and by
general principles of equity.
(e) Except as set forth in the Public Filings and except for
certain class-action lawsuits filed on or after January 29, 2002
alleging fraud and other violations of applicable securities laws,
there is, as to the Guarantor, no pending or, to the knowledge of the
Guarantor, threatened action or proceeding affecting the Guarantor or
any material Subsidiary of the Guarantor before any court, governmental
agency or arbitrator, which could reasonably be expected to materially
and adversely affect the financial condition or operations of the
Guarantor and its Subsidiaries taken as a whole or which purports to
affect the legality, validity, binding effect or enforceability of this
Agreement, the Guaranty or any other Operative Document. For the
purposes of this Section, "Public Filings" shall mean the Guarantor's
annual report on Form 10-K for the year ended December 31, 2000, and
the Guarantor's quarterly reports on Form 10-Q for the quarters ended
March 31, 2001, June 30, 2001 and September 30, 2001.
(f) Upon giving effect to this Agreement, no event has
occurred and is continuing which constitutes a Guaranty Default or
which would constitute a Guaranty Default but for the requirement that
notice be given or time elapse or both.
ARTICLE IV
MISCELLANEOUS
4.1 Effectiveness. The effectiveness of this Agreement is
conditioned upon receipt by the Agent of all the following documents, each in
form and substance satisfactory to the Agent:
(a) Counterparts of this Agreement executed by the Guarantor,
WCLLC, the Agent, the Majority Holders and by CXC and the Majority
Purchasers (as defined in the APA);
(b) A certificate of the Secretary or Assistant Secretary of
the Guarantor as to (i) any changes (or the absence of changes) since
August 17, 2001 to its certificate of incorporation and its by-laws as
of the date hereof, (ii) the resolutions of the Guarantor authorizing
the execution of this Agreement and (iii) the names and true signatures
of the officers authorized to execute this Agreement; and
(c) Such other documents as the Agent shall have reasonably
requested.
4.2 Trustee. The undersigned Note Holders and Certificate
Holders hereby (a) direct the Trustee to give its consent to the actions
contemplated hereby by executing and delivering this Agreement, and (b) consent
to the execution and delivery by the Trustee of this Agreement.
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4.3 Consent. Pursuant to the APA, CXC and the Majority
Purchasers hereby consent to execution of this Agreement by the SPV.
4.4 Full Force and Effect. Except as specifically amended
hereby, the Operative Documents and the Securitization Documents shall remain in
full force and effect and are hereby ratified and confirmed. All references to
the Guaranty in any other document, instrument, agreement or writing shall
hereafter be deemed to refer to the Guaranty as amended hereby.
4.5 Exculpation of the Trustee. Except for its own gross
negligence and willful misconduct and as otherwise expressly provided in the
Operative Documents, it is expressly understood and agreed by the parties hereto
that (a) this Agreement is executed and delivered by the Trustee, not in its
individual capacity but solely as Trustee under the Declaration of Trust, in the
exercise of the powers and authority conferred and vested in it as the Trustee,
(b) each of the undertakings and agreements herein made on the part of the
Trustee is made and intended not as a personal representation, undertaking and
agreement by the Trustee but is made and intended for the purpose for binding
only the Trust Estate created by the Declaration of Trust, (c) nothing herein
contained shall be construed as creating any liability on the Trustee,
individually or personally, to perform any obligation of the Trustee either
expressed or implied contained herein or in the Operative Documents, all such
liability, if any, being expressly waived by the Parties and by any Person
lawfully claiming by, through or under the Parties and (d) under no
circumstances shall the Trustee be personally liable for the payment of any
indebtedness or expenses of the Trustee or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Trustee under the Operative Documents.
4.6 Exculpation of the Collateral Agent. Except for its own
gross negligence and willful misconduct and as otherwise provided in the
Operative Documents, it is expressly understood and agreed by the parties hereto
that (a) this Agreement is executed and delivered by the Collateral Agent, not
in its individual capacity but solely as Collateral Agent, under the Interparty
Agreement, in the exercise of the powers and authority conferred and vested in
it as the Collateral Agent, (b) nothing herein contained shall be construed as
creating any liability on the Collateral Agent, individually or personally, to
perform any obligation of the Collateral Agent either expressed or implied
contained herein or in the Operative Documents, all such liability, if any,
being expressly waived by the Parties and by any Person claiming by, through or
under the Parties and (c) under no circumstances shall the Collateral Agent be
personally liable for the payment of any indebtedness or expenses of the
Collateral Agent or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Collateral Agent
under this Agreement or the Operative Documents except where such breach or
failure is the result of the Collateral Agent's willful misconduct or gross
negligence.
4.7 Governing Law. THIS AGREEMENT SHALL BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICT OF LAW EXCEPT SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). Whenever possible each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such
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provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
4.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall, when executed, be deemed to be an original
and all of which taken together shall be deemed to be one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their officers thereunto duly authorized as of
the day and year first above written.
[SIGNATURE PAGES FOLLOW]
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XXXXXXXX COMMUNICATIONS, LLC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President & Treasurer
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT NATIONAL
ASSOCIATION, not in its individual capacity but
solely as Trustee of the 1998 WCI Trust, as
Trustee and Lessor
By: /s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Vice President
STATE STREET BANK AND TRUST
COMPANY, not in its individual capacity but
solely as Collateral Agent
By: /s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
Title: Vice President
CITIBANK, N.A., as Agent
By: /s/ Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Attorney-In-Fact
CITIBANK, N.A.
as APA Purchaser
By: /s/ Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Attorney-In-Fact
CXC INCORPORATED
By: CITICORP NORTH AMERICA, INC.,
as attorney-in-fact
By: /s/ Xxxxxxxx X. Xxxxxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as administrative agent for CXC
Incorporated and as RCE Agent
By: /s/ Xxxxxxxx X. Xxxxxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Vice President
WC NETWORK FUNDING LLC,
as Note Holder
By: WC Network Holdings, Inc.,
its sole member
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
FBTC LEASING CORP.,
as Certificate Holder
By: /s/ Xxxxxx Xxxx
-------------------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
SCOTIABANC INC.,
as Certificate Holder
By: /s/ X. X. Xxxxx
-------------------------------------------------
Name: X. X. Xxxxx
Title:
THE BANK OF NOVA SCOTIA,
as APA Purchaser
By: /s/ M. D. Xxxxx
-------------------------------------------------
Name: M. D. Xxxxx
Title: Agent Operations
BANK OF MONTREAL,
as APA Purchaser
By:
-------------------------------------------------
Name:
Title:
ROYAL BANK OF CANADA,
as APA Purchaser
By: /s/ Xxx X. Xxxxxxxxxx
-------------------------------------------------
Name: Xxx X. Xxxxxxxxxx
Title: Senior Manager
BANK OF AMERICA, N.A., as APA Purchaser
By: /s/ Xxxxxx X. Xxx
-------------------------------------------------
Name: Xxxxxx X. Xxx
Title: Managing Director
XX XXXXXX XXXXX BANK (f/k/a The Chase
Manhattan Bank), as APA Purchaser
By: /s/ Xxxxxx Xxxx
-------------------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
BARCLAYS BANK PLC,
as APA Purchaser
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Loan Transaction Manager
TORONTO DOMINION (TEXAS), INC.
as APA Purchaser
By: /s/ Xxxx Xxxx
-------------------------------------------------
Name: Xxxx Xxxx
Title: Vice President
ABN AMRO BANK, N.V.
as APA Purchaser
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Group Vice President
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Group Vice President
FLEET NATIONAL BANK (f/k/a BankBoston,
N.A.), as APA Purchaser
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
CIBC INC., as APA Purchaser
By: /s/ Xxxx X. Xxxx
-------------------------------------------------
Name: Xxxx X. Xxxx
Title: Executive Director
THE BANK OF NEW YORK,
as APA Purchaser
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BNP PARIBAS, as APA Purchaser
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director, Media & Telecom Finance
By: /s/ Xxx Xxxxxx
-------------------------------------------------
Name: Xxx Xxxxxx
Title: Director, Media & Telecom Finance
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as APA
Purchaser
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
By: /s/ X. X. Xxxx, Xx.
-------------------------------------------------
Name: Assistant Vice President
Title: Assistant Vice President
CREDIT AGRICOLE INDOUSUEZ,
as APA Purchaser
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: First Vice President
By: /s/ Xxxx Lyoff
-------------------------------------------------
Name: Xxxx Lyoff
Title: Head of Energy Platform
