JOINDER AGREEMENT AND SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 10.29
JOINDER AGREEMENT AND SIXTH AMENDMENT TO
THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Sixth Amendment to Third Amended and Restated Loan and Security Agreement (the “Amendment”) is entered into as of December 29, 2005, by and between COMERICA BANK, successor by merger with COMERICA BANK – CALIFORNIA (“Bank”) and INPHONIC, INC. (“InPhonic”), SIMIPC ACQUISITION CORP. (“SimIpc”), STAR NUMBER, INC. (“Star”), MOBILE TECHNOLOGY SERVICES, LLC (“Mobile”) and CAIS ACQUISITION II, LLC (“CAIS” and collectively with InPhonic, SimIpc, Star and Mobile, the “Borrowers” and each individually, a “Borrower”).
RECITALS
Borrowers and Bank are parties to that certain Third Amended and Restated Loan and Security Agreement dated as of August 7, 2003 (as amended from time to time, including without limitation by that certain Waiver to Third Amended and Restated Loan and Security Agreement dated November 17, 2003, that certain letter from Bank to Borrowers dated March 18, 2004, that certain waiver letter from Bank to Borrowers dated May 31, 2004, that certain Joinder Agreement and First Amendment to Third Amended and Restated Loan and Security Agreement dated June 2, 2004, that certain Release Letter dated July 30, 2004 (the “Joinder Agreement”), that certain Second Amendment to Third Amended and Restated Loan and Security Agreement dated August 2, 2004, that certain waiver letter from Bank to Borrowers dated May 5, 2005, that certain Third Amendment to Third Amended and Restated Loan and Security Agreement dated July 27, 2005, that certain Consent and Fourth Amendment to Third Amended and Restated Loan and Security Agreement dated August 16, 2005, and that certain Fifth Amendment to Third Amended and Restated Loan and Security Agreement dated September 30, 2005, together with any related agreements, the “Agreement”). Hereinafter, all indebtedness owing by Borrowers to Bank shall be referred to as the “Indebtedness.” The parties desire to amend the Agreement in accordance with the terms of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
| I. | Incorporation by Reference. The Recitals and the documents referred to therein are incorporated herein by this reference. Except as otherwise noted, the terms not defined herein shall have the meaning set forth in the Agreement. |
| II. | Amendment to the Agreement. Subject to the satisfaction of the conditions precedent as set forth in Article V hereof, the Agreement is hereby amended as set forth below. |
| A. | The following defined terms set forth in Exhibit A (Definitions) to the Agreement are hereby added, amended or restated as follows: |
“‘Adjusted EBITDA’ means, for the applicable period, Borrowers’ consolidated net income plus Borrowers’ consolidated depreciation, amortization, interest, taxes, non-cash stock compensation expense, and other one-time items approved by Bank on a case-by-case basis.”
“‘Borrowing Base’ means an amount equal to forty five percent (45%) of Eligible Accounts, and fifty percent (50%) of Eligible Inventory (provided, that Advances based upon Eligible Inventory shall not exceed Fifteen Million Dollars ($15,000,000)), all as determined by Bank with reference to the most recent Borrowing Base Certificate delivered by Borrowers.”
“‘Eligible Accounts’ means those Accounts that arise in the ordinary course of Borrowers’ business that comply with all of Borrowers’ representations and warranties to Bank set forth in Section 5.3; provided, that Bank may change the standards of eligibility by giving Borrowers 30 days prior written notice. Unless otherwise agreed to by Bank, Eligible Accounts shall not include the following:
(a) Accounts that the account debtor has failed to pay in full within 90 days of invoice date;
(b) Credit balances over 90 days;
(c) Accounts with respect to an account debtor, 25% of whose Accounts the account debtor has failed to pay within 90 days of invoice date;
(d) Accounts with respect to an account debtor, including Subsidiaries and Affiliates, whose total obligations to Borrowers exceed twenty five percent (25%) of all Accounts (the “Concentration Limit”), to the extent such obligations exceed the aforementioned percentage, except as approved in writing by Bank; provided however that the Concentration Limit for Accounts where Cingular is the account debtor shall be forty five percent (45%);
(e) Accounts with respect to which the account debtor does not have its principal place of business in the United States, except for Eligible Foreign Accounts;
(f) Accounts with respect to which the account debtor is the United States or any department, agency, or instrumentality of the United States, except for Accounts of the United States if the payee has assigned its payment rights to Bank and the assignment has been acknowledged under the Assignment of Claims Act of 1940 (31 U.S.C. 3727);
(g) Accounts with respect to which Borrower is liable to the account debtor for goods sold or services rendered by the account debtor to Borrower, but only to the extent of any amounts owing to the account debtor against amounts owed to Borrower;
(h) Accounts with respect to which goods are placed on consignment, guaranteed sale, sale or return, sale on approval, xxxx and hold, demo or promotional, or other terms by reason of which the payment by the account debtor may be conditional;
(i) Accounts with respect to which the account debtor is an officer, employee, agent or Affiliate of Borrower;
(j) Accounts that have not yet been billed to the account debtor or that relate to deposits (such as good faith deposits) or other property of the account debtor held by Borrower for the performance of services or delivery of goods which Borrower has not yet performed or delivered;
(k) Accounts with respect to which the account debtor disputes liability or makes any claim with respect thereto as to which Bank believes, in its sole discretion, that there may be a basis for dispute (but only to the extent of the amount subject to such dispute or claim), or is subject to any Insolvency Proceeding, or becomes insolvent, or goes out of business;
(l) Accounts the collection of which Bank reasonably determines after inquiry and consultation with Borrower to be doubtful; and
(m) Retentions and hold-backs.”
“‘Insolvency Proceeding’ means any proceeding commenced by or against any Person or entity under any provision of the United States Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law, including assignments for the benefit of creditors, formal or informal moratoria, compositions, extension generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief.”
| B. | The reference to “$5,000,000” set forth in the definition of “Current Assets” set forth in Exhibit A to the Agreement (Definitions) is hereby deleted and replaced with “$10,000,000.” |
| C. | The first and third sentences of the definition of “Eligible Inventory” set forth in Exhibit A to the Agreement (Definitions) are hereby amended and restated to read in its entirety as follows: |
“‘Eligible Inventory’ means Inventory held at Borrowers’ facility located in Largo, Maryland consisting of cell phones and other handheld cell phone devices aged 120 days or fewer, that complies with all of Borrowers’ representations and warranties to Bank set forth in Section 5.3.”
“Notwithstanding anything to the contrary contained herein, ‘Eligible Inventory’ shall not include (a) Inventory from T-Mobile or its Affiliates for so long as any security interest, lien or other encumbrance of the assets of Borrowers in favor of T-Mobile or its Affiliates remain in effect, and (b) Inventory associated with Star’s Liberty Wireless business unit.”
| D. | The reference to “$500,000” set forth in subsection (c) of the definition of “Permitted Liens” set forth in Exhibit A (Definitions) to the Agreement is hereby deleted and replaced with “$2,000,000.” |
| E. | Section 6.2(a)(7) of the Agreement is amended and restated to read in its entirety as follows: |
“(7) within 30 days after the last day of each month, Borrowers shall deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit F hereto, together with aged listing of accounts receivable and account payable and inventory reports.”
| F. | Section 6.7(a) of the Agreement is hereby amended and restated in its entirety to read as follows: |
“(a) Minimum Adjusted EBITDA. Adjusted EBITDA for the specified period on a quarterly basis of not less than the following amounts for the quarter ending as of the dates below:
| Quarter Ending |
Amount | |
| December 31, 2005 |
(a) ($2,000,000) if the intangible assets used by Star’s Liberty Wireless business unit have been sold pursuant to the terms of the Asset Purchase Agreement dated December 29, 2005 between Star and TelePlus Wireless, Corp. (the “Sale”); or | |
| (b) $2,000,000 if the Sale has not been consummated | ||
| March 31, 2006 |
$1,000,000 | |
| June 30, 2006 |
$2,000,000 | |
| September 30, 2006 |
$3,000,000 | |
| December 31, 2006 |
$4,000,000” | |
| G. | Section 11 of the Agreement is hereby amended and restated to read in its entirety as follows: |
“11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; REFERENCE PROVISION.
11.1 This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of California, without regard to principles of conflicts of law. Each of the Borrowers and Bank hereby submits to the exclusive jurisdiction of the state and Federal courts located in the County of Santa Clara, California. THE UNDERSIGNED ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER DOCUMENT, INSTRUMENT OR AGREEMENT BETWEEN THE UNDERSIGNED PARTIES.
11.2 Judicial Reference Provision. In the event the jury trial waiver set forth above is not enforceable, the parties elect to proceed under this Judicial Reference Provision.
11.3 With the exception of the items specified in Section 11.4, below, any controversy, dispute or claim (each, a “Claim”) between the parties arising out of or relating to this Agreement or any other document, instrument or agreement between the undersigned parties (collectively in this Section, the “Comerica Documents”), will be resolved by a reference proceeding in California in accordance with the provisions of Sections 638 et seq. of the California Code of Civil Procedure (“CCP”), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as otherwise provided in the Comerica Documents, venue for the reference proceeding will be in the state or federal court in the county or district where the real property involved in the action, if any, is located or in the state or federal court in the county or district where venue is otherwise appropriate under applicable law (the “Court”).
11.4 The matters that shall not be subject to a reference are the following: (i) nonjudicial foreclosure of any security interests in real or personal property, (ii) exercise of self-help remedies (including, without limitation, set-off), (iii) appointment of a receiver and (iv) temporary, provisional or ancillary remedies (including, without limitation, writs of attachment, writs of possession, temporary restraining orders or preliminary injunctions). This reference provision does not limit the right of any party to exercise or oppose any of the rights and remedies described in clauses (i) and (ii) or to seek or oppose from a court of competent jurisdiction any of the items described in clauses (iii) and (iv). The exercise of, or opposition to, any of those items does not waive the right of any party to a reference pursuant to this reference provision as provided herein.
11.5 The referee shall be a retired judge or justice selected by mutual written agreement of the parties. If the parties do not agree within ten (10) days of a written request to do so by any party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the Court (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and the parties agree that irreparable harm would result if ex parte relief is not granted. Pursuant to CCP § 170.6, each party shall have one peremptory challenge to the referee selected by the Presiding Judge of the Court (or his or her representative).
11.6 The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (i) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues of law or fact within one hundred twenty (120) days after the date of the conference and (iii) report a statement of decision within twenty (20) days after the matter has been submitted for decision.
11.7 The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be entitled to
“priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
11.8 Except as expressly set forth herein, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.
11.9 The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a court proceeding, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision at the close of the reference proceeding which disposes of all claims of the parties that are the subject of the reference. Pursuant to CCP § 644, such decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court and any such decision will be final, binding and conclusive. The parties reserve the right to appeal from the final judgment or order or from any appealable decision or order entered by the referee. The parties reserve the right to findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
11.10 If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or justice, in accordance with the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding.
11.11 THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE OTHER COMERICA DOCUMENTS.”
| H. | A new Section 15 is hereby added to the Agreement to read in its entirety as follows: |
“15. CO-BORROWERS.
15.1 Co-Borrowers. Borrowers are jointly and severally liable for the Obligations and Bank may proceed against one Borrower to enforce the Obligations without waiving its right to proceed against the other Borrower. This Agreement and the Loan Documents are a primary and original obligation of each Borrower and shall remain in effect notwithstanding future changes in conditions, including any change of law or any invalidity or irregularity in the creation or acquisition of any Obligations or in the execution or delivery of any agreement between Bank and any Borrower. Each Borrower shall be liable for existing and future Obligations as fully as if all of the Credit Extensions were advanced to such Borrower. Bank may rely on any certificate or representation made by any Borrower as made on behalf of, and binding on, all Borrowers, including without limitation Advance Request Forms, Borrowing Base Certificates and Compliance Certificates. Borrowers are jointly and severally liable for the Obligations and Bank may proceed against one or more of the Borrowers to enforce the Obligations without waiving its right to proceed against any of the other Borrowers. Each Borrower appoints each other Borrower as its agent with all necessary power and authority to give and receive notices, certificates or demands for and on behalf of both Borrowers, to act as disbursing agent for receipt of any Advances on behalf of each Borrower and to apply to Bank on behalf of each Borrower for Advances, any waivers and any consents. This authorization cannot be revoked, and Bank need not inquire as to one Borrower’s authority to act for or on behalf of another Borrower.
15.2 Subrogation and Similar Rights. Notwithstanding any other provision of this Agreement or any other Loan Document, each Borrower irrevocably waives, until all obligations are paid in full and Bank has no further obligation to make Credit Extensions to Borrower, all rights that it may have at law or in equity (including, without limitation, any law subrogating the Borrower to the rights of Bank under the Loan Documents) to seek contribution, indemnification, or any other form of reimbursement from any other Borrower, or any other Person now or hereafter primarily or secondarily liable for any of the Obligations, for any payment made by the Borrower with respect to the Obligations in connection with the Loan Documents or otherwise and all rights that it might have to benefit from, or to participate in, any security for the Obligations as a result of any payment made by the Borrower with respect to the Obligations in connection with the Loan Documents or otherwise. Any agreement providing for indemnification, reimbursement or any other arrangement prohibited under this Section shall be null and void. If any payment is made to a Borrower in contravention of this Section, such Borrower shall hold such payment in trust for Bank and such payment shall be promptly delivered to Bank for application to the Obligations, whether matured or unmatured.
15.3 Waivers of Notice. Each Borrower waives, to the extent permitted by law, notice of acceptance hereof; notice of the existence, creation or acquisition of any of the Obligations; notice of an Event of Default except as set forth herein; notice of the amount of the Obligations outstanding at any time; notice of any adverse change in the
financial condition of any other Borrower or of any other fact that might increase the Borrower’s risk; presentment for payment; demand; protest and notice thereof as to any instrument; and all other notices and demands to which the Borrower would otherwise be entitled by virtue of being a co-borrower or a surety. Each Borrower waives any defense arising from any defense of any other Borrower, or by reason of the cessation from any cause whatsoever of the liability of any other Borrower. Bank’s failure at any time to require strict performance by any Borrower of any provision of the Loan Documents shall not waive, alter or diminish any right of Bank thereafter to demand strict compliance and performance therewith. Each Borrower also waives any defense arising from any act or omission of Bank that changes the scope of the Borrower’s risks hereunder. Each Borrower hereby waives any right to assert against Bank any defense (legal or equitable), setoff, counterclaim, or claims that such Borrower individually may now or hereafter have against another Borrower or any other Person liable to Bank with respect to the Obligations in any manner or whatsoever.
15.4 Subrogation Defenses. Until all Obligations are paid in full and Bank has no further obligation to make Credit Extensions to Borrower, each Borrower hereby waives any defense based on impairment or destruction of its subrogation or other rights against any other Borrower and waives all benefits which might otherwise be available to it under California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2848, 2849, 2850, 2899, and 3433 and California Code of Civil Procedure Sections 580a, 580b, 580d and 726, as those statutory provisions are now in effect and hereafter amended, and under any other similar statutes now and hereafter in effect.
15.5 Right to Settle, Release.
(a) The liability of Borrowers hereunder shall not be diminished by (i) any agreement, understanding or representation that any of the Obligations is or was to be guaranteed by another Person or secured by other property, or (ii) any release or unenforceability, whether partial or total, of rights, if any, which Bank may now or hereafter have against any other Person, including another Borrower, or property with respect to any of the Obligations.
(b) Without notice to any Borrower and without affecting the liability of any Borrower hereunder, Bank may (i) compromise, settle, renew, extend the time for payment, change the manner or terms of payment, discharge the performance of, decline to enforce, or release all or any of the Obligations with respect to a Borrower, (ii) grant other indulgences to a Borrower in respect of the Obligations, (iii) modify in any manner any documents relating to the Obligations with respect to a Borrower, (iv) release, surrender or exchange any deposits or other property securing the Obligations, whether pledged by a Borrower or any other Person, or (v) compromise, settle, renew, or extend the time for payment, discharge the performance of, decline to enforce, or release all or any obligations of any guarantor, endorser or other Person who is now or may hereafter be liable with respect to any of the Obligations.
15.6 Subordination. All indebtedness of a Borrower now or hereafter arising held by another Borrower is subordinated to the Obligations and the Borrower holding the indebtedness shall take all actions reasonably requested by Bank to effect, to enforce and to give notice of such subordination.”
| I. | All references in the Agreement to Bank’s address at 0000 Xxxxxxxxx Xxx., Xxxxx 0000, Xx Xxxxxxx, XX 00000, shall mean and refer to 00 X Xxxxxxx Xxxx, Xxx Xxxx, XX 00000. |
| J. | Exhibits D and F to the Agreement are hereby replaced with the forms of Exhibits D and F attached hereto. |
| III. | Additional Borrowers. For good and valuable consideration received, and intending to be legally bound, Mobile and CAIS hereby acknowledge and agree that, upon the execution and delivery by Mobile and CAIS of this Amendment, they shall for all purposes be joined to, and become, as of the date of this Amendment, a Borrower to, and shall assume and incur the obligations of a Borrower under the Agreement and all other Loan Documents, and do hereby grant to Bank a continuing security interest in all presently existing and hereafter acquired or arising Collateral to secure prompt repayment of any and all Obligations and to secure prompt performance by each Borrower of its covenants and duties under the Loan Documents. |
| IV. | Legal Effect. |
| A. | The Agreement is hereby amended wherever necessary to reflect the changes described above. Borrower agrees that it has no defenses against the obligations to pay any amounts under the Indebtedness. |
| B. | Borrower understands and agrees that in modifying the existing Indebtedness, Bank is relying upon Borrower’s representations, warranties, and agreements, as set forth in the Agreement. Except as expressly modified pursuant to this Amendment, the terms of the Agreement remain unchanged, and in full force and effect. Bank’s agreement to modifications to the existing Indebtedness pursuant to this Amendment in no way shall obligate Bank to make any future modifications to the Indebtedness. Nothing in this Amendment shall constitute a satisfaction of the Indebtedness. It is the intention of Bank and Borrower to retain as liable parties, all makers and endorsers of Agreement, unless the party is expressly released by Bank in writing. No maker, endorser, or guarantor will be released by virtue of this Amendment. The terms of this paragraph apply not only to this Amendment, but also to all subsequent loan modification requests. |
| C. | This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. This is an integrated Amendment and supersedes all prior negotiations and agreements regarding the subject matter hereof. All modifications hereto must be in writing and signed by the parties. |
| V. | Conditions Precedent. Except as specifically set forth in this Amendment, all of the terms and conditions of the Agreement remain in full force and effect. The effectiveness of this Agreement is conditioned upon receipt by Bank of this Amendment, and any other documents which Bank may require to carry out the terms hereof, including but not limited to the following: |
| A. | This Amendment, duly executed by Borrowers; |
| B. | Intellectual Property Security Agreements, in form and substance satisfactory to Bank, duly executed by Mobile and CAIS; |
| C. | A Certificate of the Secretary of Mobile and CAIS with respect to incumbency and resolutions authorizing the execution and delivery of this Amendment; |
| D. | Payment of a nonrefundable amendment fee in the amount of $10,000, which may be debited from any of Borrowers’ accounts; |
| E. | Payment of all legal fees associated with this Amendment; and |
| F. | Such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate. |
[Signature page follows]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written.
| INPHONIC, INC. |
STAR NUMBER, INC. | |||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx |
By: | /s/ Xxxxxxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | Title: | Chief Financial Officer | |||
| SIMIPC ACQUISITION CORP. | MOBILE TECHNOLOGY SERVICES, LLC | |||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx |
By: | /s/ Xxxxxxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | Title: | Chief Financial Officer | |||
| CAIS ACQUISITION II, LLC | COMERICA BANK | |||||
| By: | /s/ Xxxxxxxx X. Xxxxxxx |
By: | /s/ Xxxx Xxxxxx | |||
| Title: | Chief Financial Officer | Title: | Senior Vice President | |||
