EXECUTION COPY
PERFORMANCE SUPPORT AGREEMENT
THIS PERFORMANCE SUPPORT AGREEMENT ("Agreement") is executed as of this
29th day of March, 1999, by ULTRAMAR DIAMOND SHAMROCK CORPORATION ("UDS"), a
Delaware corporation (the "Support Provider"), in favor of ASSET SECURITIZATION
COOPERATIVE CORPORATION ("ASCC"), a California cooperative corporation, CANADIAN
IMPERIAL BANK OF COMMERCE ("CIBC") and any other Person which may become a
"Purchaser" under and as defined in both the Credit Card Receivables Purchase
Agreement and Trade Receivables Purchase Agreement (referred to below) (each a
"Purchaser" and collectively, the "Purchasers") and CIBC, in its capacity as the
Administrative Agent under both the Credit Card Receivables Purchase Agreement
and the Trade Receivables Purchase Agreement (the "Administrative Agent").
PRELIMINARY STATEMENTS
1. DSRM National Bank, a national banking association ("DSRMNB"), and
Diamond Shamrock Refining and Marketing Company, a Delaware corporation
("DSRM"), have executed that certain Amended and Restated Participation
Agreement dated as of May 1, 1997 (as the same may be amended, supplemented,
restated or otherwise modified from time to time, the "Participation Agreement")
pursuant to which DSRM purchases 100% participation interests in all Receivables
under all Accounts established and maintained by DSRMNB.
2. DSRMNB and DSRM have executed that certain Data Processing and
Service Agreement dated as of September 13, 1996 (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the "Servicing
Agreement") pursuant to which DSRM processes all Receivables under all Accounts
established and maintained by DSRMNB.
3. TPI Petroleum, Inc., a Michigan corporation ("TPI"), Ultramar, Inc.,
a Nevada corporation ("Ultramar") and Diamond Shamrock Refining Company, L.P., a
Delaware limited partnership ("DSRLP"), as "Sellers", and DSRM, as "Buyer", have
executed that certain Transfer Agreement of even date herewith (as the same may
be amended, supplemented, restated or otherwise modified from time to time, the
"Transfer Agreement") pursuant to which DSRM shall acquire the Receivables
originated from time to time by TPI, Ultramar and DSRLP.
4. DSRM, as "Seller", and Coyote Funding, L.L.C., a Delaware limited
liability company ("Coyote Funding"), as "Buyer", have executed that certain
Credit Card Receivables Sale Agreement and that certain Trade Receivables Sale
Agreement both of even date herewith (as the same may be amended, supplemented,
restated or otherwise modified from time to time, each a "Sale Agreement" and
collectively, the "Sale Agreements") pursuant to which Coyote Funding shall
purchase the Receivables and Receivables Assets offered for sale from time to
time by DSRM.
5. ASCC, the Purchaser, the Administrative Agent, DSRM, as "Collection
Agent" and Coyote Funding, as "Seller" have executed or will execute that
certain Credit Card Purchase Agreement and that certain Trade Receivables
Purchase Agreement both of even date herewith (as the same may be amended,
supplemented, restated or otherwise modified from time to time, each a "Purchase
Agreements" and collectively, the "Purchase Agreements") pursuant to which ASCC
may, and CIBC, if so requested, will purchase an Ownership Interest in the
Receivables and the Receivables Assets offered for sale from time to time by
Coyote Funding.
6. DSRMNB has executed that certain Security Agreement of even date
herewith (as the same may be amended, supplemented, restated or otherwise
modified from time to time, the "Security Agreement", and together with the
Participation Agreement, the Servicing Agreement, the Transfer Agreement, the
Sale Agreements and the Purchase Agreements, collectively, the "Transaction
Documents") in favor of CIBC, as Administrative Agent under the Credit Card
Receivables Purchase Agreement pursuant to which DSRMNB has granted the
Administrative Agent a security interest in the Receivables under all Accounts
established and maintained by DSRMNB.
7. Each of DSRMNB, DSRM, TPI, Ultramar, DSRLP and Coyote Funding
(collectively, the "UDS Transaction Parties") are direct or indirect
wholly-owned subsidiaries of the Support Provider.
8. It is a condition precedent to the Initial Purchase by the
Purchasers under the Purchase Agreements that the Support Provider execute and
deliver this Agreement to the Administrative Agent.
In consideration of the execution of the Purchase Agreements by the
Purchasers, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the Support Provider, the Support
Provider agrees as follows:
ARTICLE I
DEFINITIONS
SECTION 1. Definitions. Unless otherwise defined in this Agreement, all
defined terms used in this Agreement, including the Preliminary Statements
hereof, shall have the meanings ascribed to such terms in the Purchase
Agreements.
ARTICLE II
PERFORMANCE SUPPORT OBLIGATION
Section 2.01. Performance Support Obligation. The Support Provider
hereby unconditionally and irrevocably guarantees for the benefit of the
Purchasers and the Administrative Agent (collectively, the "Beneficiaries"), the
due and punctual performance, observance and payment by the UDS Transaction
Parties and their respective successors and assigns of all of the terms,
covenants, conditions, agreements, undertakings and obligations on the part of
the UDS Transaction Parties to be paid, performed or observed under the
Transaction Documents or any document executed by each Transaction Party and
delivered in connection with the Purchase Agreements in accordance with the
terms thereof, including, without limitation, any agreement of any Transaction
Party to pay any money under either of the Purchase Agreements or any such other
document (all of the foregoing, the "Obligations"). Should the UDS Transaction
Parties fail to perform any Obligation, then the Support Provider will itself
duly and punctually perform, observe and pay, or cause to be duly and punctually
performed, observed or paid such Obligation, and it shall not be a condition to
the accrual of the obligation of the Support Provider hereunder to perform,
observe or pay any Obligation (or to cause the same to be performed, observed or
paid) that any Purchaser, the Administrative Agent or any other Person shall
have first made any request of or demand upon or given any notice to the Support
Provider or to any Transaction Party or their respective successors and assigns
or have initiated any action or proceeding against the Support Provider or any
Transaction Party or any of their respec tive successors and assigns in respect
thereof. Any Purchaser and the Administrative Agent may proceed to enforce the
obligations of the Support Provider under this Section 2.01 without first
pursuing or exhausting any right or remedy which such Purchaser or the
Administrative Agent may have against any Transaction Party, any other Person,
the Receivables, the Receivables Assets or any other property.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Support Provider.
The Support Provider hereby represents and warrants to the Purchasers and the
Administrative Agent on the date hereof and on the date of each purchase, sale,
assignment, transfer or other transaction under any of the Transaction
Documents:
(i) Support Provider is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and is duly qualified to do business, and in good
standing, in every jurisdiction where the nature of its business
requires it to be so qualified unless Failure to be so qualified
and in good standing would not materially adversely affect its
ability to perform its obligations hereunder.
(ii) The execution, delivery and performance by the Support Provider
of this Agreement and the other instruments and documents to be
delivered hereunder, and the transactions contemplated hereby,
are within the Support Provider's corporate powers, have been
duly authorized by all necessary corporate action, do not
contravene (A) the Support Provider's charter or by-laws, (B)
any law, rule or regulation applicable to the Support Provider,
(C) any contractual restriction of a material nature Contained
in any indenture, loan or credit agreement, lease, mortgage,
security agreement, bond, note or other agreement or instrument
binding on the Support Provider or its property or (D) any
order, writ, judgment, award, injunction or decree binding on
the Support Provider or its property, which, in the case of any
of the foregoing would materially adversely affect its ability
to perform its obligations hereunder, and do not result in or
require the creation of any lien, claim or encumbrance upon or
with respect to any of its properties.
(iii) This Agreement has been duly executed and delivered on behalf of
the Support Provider and is the legal, valid and binding agree-
ment of the Support Provider enforceable against the Support
Provider in accordance with its terms, except as limited by
applicable bankruptcy, reorganization, insolvency or similar
laws affecting the enforcement of creditors' rights generally
and by general principles of equity.
(iv) 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 Support Provider of this Agreement or any other document or
instrument to be delivered herewith.
(v) There are no actions, suits, or proceedings pending or, to the
knowledge of the Support Provider, threatened against the
Support Provider or affecting the property of the Support
Provider or any of its subsidiaries in any court, or before any
arbitrator of any kind, or before or by any governmental
authority, which would materially adversely affect its ability
to perform its obligations hereunder. Neither the Support
Provider nor any of its subsidiaries is in default with respect
to any order of any court, arbitrator or governmental body,
which, in the case of any of the foregoing would materially
adversely affect its ability to perform its obligations
hereunder, and do not result in or require the creation of any
lien, claim or encumbrance upon or with respect to any of its
properties.
(vi) The consolidated balance sheet of the Support Provider and its
consolidated subsidiaries as of December 31, 1998, and the
related consolidated statements of income and retained earnings
of the Support Provider and its consolidated subsidiaries for
the fiscal year then ended, are in each case certified by Xxxxxx
Xxxxxxxx LLP, independent public accountants (and copies of
which have been furnished to the Administrative Agent) and such
statements are accompanied by an opinion of Xxxxxx Xxxxxxxx LLP
stating that such statements fairly present the consolidated
financial condition of the Support Provider and its consolidated
subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles
consistently applied.
ARTICLE IV
COVENANTS
Section 4.01. Reporting Covenants. The Support Provider covenants and
agrees that, until this Agreement is terminated pursuant to Section 5.07, the
Support Provider will deliver to the Administrative Agent:
(a) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Support Provider,
a consolidated income statement and a statement of changes in financial position
of the Support Provider and its consolidated subsidiaries for such period, and
consolidated statements of income and retained earnings of the Support Provider
and its consolidated subsidiaries each for the period commencing at the end of
the previous fiscal year and ending with the end of such quarter, certified by
the chief financial officer or chief accounting officer of the Support Provider
to be prepared to the best of his knowledge and belief in accordance with
generally accepted accounting principles subject to audit and normal year-end
adjustments;
(b) as soon as available and in any event within 120 days after the
end of each fiscal year of the Support Provider, a copy of the consolidated
balance sheets of the Support Provider and its consolidated subsidiaries as of
the end of such year and the related consolidated statements of income and
retained earnings of the Support Provider and its consolidated subsidiaries for
such year each reported on by nationally recognized public accountants;
(c) upon request by the Administrative Agent, copies of all reports
and registration statements, if any, which the Support Provider or any
subsidiary files with the Securities and Exchange Commission or any national
securities exchange; and
(d) promptly from time to time furnish the Administrative Agent such
information, documents, records or reports respecting the financial conditions
and operations of the Support Provider as the Administrative Agent may
reasonably from time to time request.
Section 4.02. Stock Ownership and Merger Restrictions. The Support
Provider covenants and agrees that, until this Agreement is terminated pursuant
to Section 5.07, each of the UDS Transaction Parties will at all times be a
wholly-owned direct or indirect subsidiary of the Support Provider.
ARTICLE V
MISCELLANEOUS
Section 5.01. Validity of Obligations. The Support Provider agrees that
its obligations under this Agreement shall be unconditional, irrespective of (i)
the validity, enforceability, avoidance, subordination, discharge, or
disaffirmance by any Person (including a trustee in bankruptcy) of the
Obligations, (ii) the absence of any attempt to collect any Collections from the
Obligor related thereto, or to collect the Obligations from the UDS Transaction
Parties or any other Person, (iii) the waiver, consent, extension, forbearance
or granting of any indulgence by any Purchaser, the Administrative Agent or any
other Person with respect to any provision of any instrument evidencing the
Obligations, (iv) any change of the time, manner or place of performance of, or
in any other term of any of the Obligations, including without limitation, any
amendment to or modification of any Transaction Document, (v) any law,
regulation or order of any jurisdiction affecting any term of any of the
Obligations, or rights of any of the Purchasers, the Administrative Agent or any
other Person with respect thereto, (vi) the failure by any of the Purchasers,
the Administrative Agent or any other Person to take any steps to perfect and
maintain perfected its respective interest in any Receivable or any Receivables
Assets or other property acquired by it pursuant to any of the Transaction
Documents or in any security or collateral related to the Obligations (vii) any
exchange or release of any Receivable or any Receivables Assets or other
property acquired by any Purchaser, the Administrative Agent or any other Person
pursuant to any of the Transaction Documents, (viii) any failure to obtain any
authorization or approval from or other action by or to notify or file with, any
governmental authority or regulatory body required in connection with the
performance of the obligations hereunder by the Support Provider or (ix) any
impossibility or impracticability of performance, illegality, force majeure, any
act of government, or other circumstances which might constitute a default
available to, or a discharge of the UDS Transaction Parties or the Support
Provider, or any other circumstance, event or happening whatsoever whether
foreseen or unforeseen and whether similar to or dissimilar to anything referred
to above. The Support Provider further agrees that its obligations under this
Agreement shall not be limited to any valuation, estimation or disallowance made
in connection with any proceedings involving any of the UDS Transaction Parties
filed under the Bankruptcy Code, whether pursuant to Section 502 of the
Bankruptcy Code or any other Section thereof. The Support Provider further
agrees that none of the Purchasers, the Administrative Agent or any other Person
under any of the Transaction Documents shall be under any obligation to xxxxxxxx
any assets in favor of or against or in payment of any or all of the
Obligations. The Support Provider further agrees that, to the extent that any
Transaction Party makes a payment or payments to any of the Purchasers, the
Administrative Agent or any other Person under any of the Transaction Documents,
which payment or payments (or any part thereof) are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to such Transaction Party, its estate, trustee or receiver or any other
party, including, without limitation, the Support Provider, under any bankruptcy
law, state or federal law, common law or equitable cause, then to the extent of
such payment or repayment, the Obligation or part thereof which had been paid,
reduced or satisfied by such amount shall be reinstated and continued in full
force and effect as of the date such initial payment, reduction or satisfaction
occurred. The Support Provider waives all set-offs and counterclaims and all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor and notices of acceptance of this
Agreement. The Support Provider's obligations under this Agreement shall not be
limited if any Purchaser, the Administrative Agent or any other Person is
precluded for any reason (including without limitation, the application of the
automatic stay under Section 362 of the Bankruptcy Code) from enforcing or
exercising any right or remedy with respect to the Obligations, and the Support
Provider shall pay to such Purchaser, the Administrative Agent or such other
Person, as applicable, upon demand, the amount of the Obligations that would
otherwise have been due and payable had such rights and remedies been permitted
to be exercised.
Section 5.02. Irrevocability. The Support Provider agrees that its
obligations under this Agreement shall be irrevocable. In the event that under
applicable law (notwithstanding the Support Provider's agreement regarding the
irrevocable nature of its obligations hereunder), the Support Provider shall
have the right to revoke this Agreement, this Agreement shall continue in full
force and effect until a written revocation hereof specifically referring
hereto, signed by the Support Provider is actually received by the
Administrative Agent at the Administrative Agent's address at Canadian Imperial
Bank of Commerce, New York Branch, Attention: Asset Securitization Group, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000. Any such revocation shall not affect
the right of any of the Purchasers or the Administrative Agent to enforce their
respective rights under this Agreement with respect to (i) any Obligation
(including any Obligation that is contingent or unmatured) which arose on or
prior to the date the aforementioned revocation was received by the
Administrative Agent or (ii) any Obligation which in any way relates to any
Receivable or any Receivables Assets existing or otherwise outstanding on the
date the aforementioned revocation was received by the Administrative Agent. If
any of the Purchasers make Purchases or take other action in reliance on this
Agreement after any such revocation by the Support Provider but prior to the
receipt by the Administrative Agent of said written notice, the rights of the
Purchasers and the Administrative Agent with respect thereto shall be the same
as if such revocation had not occurred. Without limiting the foregoing, this
Agreement may not be revoked at any time on or after the occurrence of an Event
of Liquidation under either of the Purchase Agreements.
Section 5.03. Waiver. The Support Provider hereby waives promptness,
diligence, notice of acceptance, notice of default by the UDS Transaction
Parties, notice of the incurrence of any Obligation and any other notice with
respect to any of the Obligations and this Agreement, the Transaction Documents,
and any other document related thereto and any requirement that the Purchasers,
the Administrative Agent or any other Person exhaust any right or take any
action against the UDS Transaction Parties, any other Person or any property.
The Support Provider warrants to the Purchasers and the Administrative Agent
that it has adequate means to obtain from the UDS Transaction Parties on a
continuing basis, all information concerning the financial condition of the UDS
Transaction Parties and the collectibility of the Receivables and Receivables
Assets, and that it is not relying on the Purchasers or the Administrative Agent
to provide such information either now or in the future.
Section 5.04. Subrogation. The Support Provider will not exercise or
assert any rights which it may acquire by way of subrogation under this
Agreement unless and until all of the Obligations shall have been paid and
performed in full and the Aggregate Ownership Interest is reduced to zero under
each Purchase Agreement. If any payment shall be made to the Support Provider on
account of any subrogation rights at any time prior to the occurrence of the
events described in the preceding sentence, each and every amount so paid will
be held in trust for the benefit of the Purchasers, the Administrative Agent and
any other applicable payee under any of the Transaction Documents and forthwith
be paid to the Administrative Agent or such payee, as applicable, to be credited
and applied to the Obligations.
Section 5.05. Costs and Expenses. The Support Provider shall pay, on
demand, all reasonable costs and expenses including, without limitation, all
court costs and reasonable attorneys' fees and expenses paid or incurred by any
of the Purchasers or the Administrative Agent in connection with (a) the
collection of all or any part of the obligations of the Support Provider
hereunder, (b) the enforcement of any term or provision of this Agreement or (c)
the prosecution or defense of any action by or against any of the Purchasers or
the Administrative Agent (without limiting clause (a) or (b) above, excluding
any such action brought by the UDS Transaction Parties or the Support Provider
or by any of the Purchasers or the Administrative Agent against the UDS
Transaction Parties or the Support Provider) in connection with this Agreement,
whether involving the UDS Transaction Parties, the Support Provider or any other
Person, including a trustee in bankruptcy, (excluding however any such action
that results from the gross negligence or willful misconduct of any Purchaser or
the Administrative Agent). The Support Provider shall pay interest on all
amounts owing by it under this Agreement from the date due and payable hereunder
until such obligations are paid in full, at the per annum rate of 2% plus the
Base Rate.
Section 5.06. Successors. This Agreement shall be binding upon the
Support Provider and upon the successors and assigns of the Support Provider and
shall inure to the benefit of the successors and assigns of the Purchasers and
the Administrative Agent; all references herein to the Support Provider and to
the UDS Transaction Parties shall be deemed to include their respective
successors and assigns. The successors and assigns of the UDS Transaction
Parties shall include, without limitation, a receiver, trustee or
debtor-in-possession of or for the UDS Transaction Parties. All references to
the singular shall be deemed to include the plural where the context so
requires.
Section 5.07. Termination. This Agreement shall terminate after the
latest to occur of (a) the date on which all the Obligations are paid and/or
performed in full, (b) the date the Aggregate Ownership Interest is reduced to
zero under both of the Purchase Agreements, and (c) the date on which the
Support Provider has satisfied in full its obligations hereunder.
Section 5.08. Integration; Conditions. This Agreement contains a final
and complete integration of all prior expressions of the parties hereto with
respect to the subject matter hereof, superseding all prior oral or written
understandings. No course of dealing, course of performance or trade usage and
no parol evidence shall be used to supplement or modify any term hereof. This
Agreement is fully effective on the date of its execution by the Support
Provider.
Section 5.09. Governing Law and Consent to Jurisdiction Waiver of Jury
Trial. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF NEW YORK BUT
OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES).
(b) THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION
OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND
ANY COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR PROCEEDING
BROUGHT AGAINST IT AND TO OR IN CONNECTION WITH ANY OF THE RELATED DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED THEREUNDER OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT, AND THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREE THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
OR DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW,
IN SUCH FEDERAL COURT. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY
SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT, OR IN ANY OTHER MANNER PROVIDED BY LAW.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO HEREBY WAIVE AND
AGREE NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN
AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER OR THAT THE RELATED DOCUMENTS OR THE SUBJECT MATTER THEREOF MAY NOT BE
LITIGATED IN OR BY SUCH COURTS. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY PARTY
HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS TO WHICH IT IS A PARTY, BY AMONG OTHER THINGS, THIS WAIVER.
Section 5.10. Counterparts. This Agreement may be executed in two or
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
Support Provider this 29th day of March, 1999.
ULTRAMAR DIAMOND SHAMROCK CORPORATION
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President and Treasurer
Address: 0000 Xxxxx Xxxx Xxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attention: Treasurer
Acknowledged and accepted this
29th day of March, 1999.
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK BRANCH,
as Administrative Agent on behalf
of the Purchasers under each
Purchase Agreement
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Authorized Signatory
