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EXHIBIT 10.3
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WARRANT REGISTRATION RIGHTS AGREEMENT
between
KNOLOGY HOLDINGS, INC.
and
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Warrant Agent
Dated as of October 22, 1997
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WARRANT REGISTRATION RIGHTS AGREEMENT
WARRANT REGISTRATION RIGHTS AGREEMENT, dated as of
October 22, 1997 (this "Agreement"), between KNOLOGY HOLDINGS, INC., a Delaware
corporation (the "Company"), and United States Trust Company of New York, as
warrant agent (in such capacity, the "Warrant Agent").
The Company has agreed to issue and sell a total of
444,100 units (the "Units") each of which consists of one 11-7/8% Senior
Discount Note due 2007 of the Company (each a "Note" and collectively, the
"Notes") to be issued pursuant to the provisions of an Indenture dated as of
October 22, 1997 (the "Indenture") between the Company, as issuer, and United
States Trust Company of New York, as trustee, and one warrant (each, a
"Warrant"), each Warrant initially entitling the holder thereof to purchase
.003734 shares of Preferred Stock (as defined below) of the Company at an
exercise price of $.01 per share, of which 373,050 Units are to be purchased by
the Placement Agents and 71,050 Units are to be purchased by SCANA
Communications, Inc. ("SCANA"). Pursuant to the terms of a Placement
Agreement, dated October 16, 1997 (the "Placement Agreement"), among the
Company and Xxxxxx Xxxxxxx & Co. Incorporated, X.X. Xxxxxx Securities Inc. and
First Union Capital Markets Corp., as placement agents (the "Placement
Agents"), the Company has agreed to issue and sell to the Placement Agents an
aggregate of 373,050 Units. The Note and the Warrant included in each Unit
will become separately transferable at the close of business upon the earliest
to occur of (i)the date that is six months following the Closing Date (as
defined below), (ii)the commencement of an exchange offer with respect to the
Notes undertaken pursuant to the Notes Registration Rights Agreement (as
defined below) and (iii) the effectiveness of a shelf registration statement
with respect to resales of the Notes.
In consideration of the foregoing and of the mutual
agreements contained herein and in the Placement Agreement, the Company and the
Warrant Agent hereby agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Auditors" means, at any time, the independent auditors
of the Company at such time.
"Board" means the board of directors of the Company from
time to time.
"Closing Date" means the date hereof.
"Comfort Letter" has the meaning specified in Section 3
hereof.
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"Commission" means the United States Securities and
Exchange Commission.
"Common Stock" means the Common Stock, par value $.01 per
share, of the Company.
"Company" has the meaning specified in the preamble to
this Agreement.
"Company Shares" has the meaning specified in Section 2
hereof.
"Cutback Notice" has the meaning specified in Section 2
hereof.
"Expiration Date" means the second anniversary of the
Closing Date.
"Holders" means the record holders of the Warrants and
the holders of Warrant Shares.
"Includible Secondary Shares" has the meaning specified
in Section 2 hereof.
"Indenture" has the meaning specified in the recitals to
this Agreement.
"managing underwriter" has the meaning specified in
Section 2 hereof.
"Notes" has the meaning specified in the recitals to this
Agreement.
"Notes Registration Rights Agreement" means the
Registration Rights Agreement dated the Closing Date between the Company, the
Placement Agents and SCANA relating to the Notes.
"Opinion" has the meaning specified in Section 3 hereof.
"Other Shares" has the meaning specified in Section 2
hereof.
"Piggy-back Registration Rights" has the meaning
specified in Section 2 hereof.
"Placement Agents" has the meaning specified in the
recitals to this Agreement.
"Placement Agreement" has the meaning specified in the
recitals to this Agreement.
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"Preferred Stock" means the Preferred Stock, par value
$.01 per share, of the Company.
"Registration Statement" has the meaning specified in
Section 2 hereof.
"Resale Shelf" has the meaning specified in Section 3
hereof.
"Securities Act" means the United States Securities Act
of 1933, as amended.
"SCANA" has the meaning specified in the recitals to this
Agreement.
"Shelf Expiration Date" has the meaning specified in
Section 3 hereof.
"Underlying Securities" means the Preferred Stock
issuable upon exercise of the Warrants or such other securities as shall be
issuable upon the exercise of the Warrants, pursuant to the Warrant Agreement.
"Units" has the meaning specified in the recitals to this
Agreement.
"Warrant" has the meaning specified in the recitals to
this Agreement.
"Warrant Agent" has the meaning specified in the preamble
to this Agreement.
"Warrant Agreement" means the Warrant Agreement dated as
of the Closing Date between the Company and the Warrant Agent.
"Warrant Registration Statement" has the meaning
specified in Section 3 hereof.
"Warrant Shares" means the Preferred Stock (or other
securities issued or issuable upon exercise of the Warrants) and shall include
any capital stock issuable upon conversion of the Preferred Stock (or such
other securities).
2. Piggy-Back Registration Rights.
(a) If the Company proposes to file a
registration statement with the Commission with respect to an offering of any
shares of Preferred Stock (or other securities issuable upon exercise of the
Warrants) (or any capital stock issuable upon conversion of the Preferred Stock
(or such other securities)) for cash (other than an offering registered solely
on Form S-4 or S-8 or any successor form thereto and other than the initial
public offering of shares of Preferred Stock (or other securities issuable upon
exercise of the Warrants) (or any capital stock issuable upon conversion of the
Preferred Stock (or such other securities)) if no
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shareholder of the Company offers securities for sale pursuant to such
registration statement), the Company shall give prompt written notice to all
the Holders of Warrants and Warrant Shares, at least 30 days prior to the
initial filing of the registration statement relating to such offering (the
"Registration Statement"). Each such Holder shall have the right, within 20
days after delivery of such notice, to request in writing that the Company
include all or a portion of such Holder's Warrant Shares in each case to the
extent that such Preferred Stock (or other securities) would be (upon issuance)
or are, as the case may be, subject to restrictions on transfer, in such
Registration Statement ("Piggy-back Registration Rights"). The Company shall
include in the public offering all of the Warrant Shares that a Holder has
requested be included, unless the underwriter for the public offering or the
underwriter managing the public offering (in either case, the "managing
underwriter") delivers a notice (a "Cutback Notice") pursuant to Section 2(b)
or 2(c) hereof. The managing underwriter may deliver one or more Cutback
Notices at any time prior to the execution of the underwriting agreement for
the public offering.
(b) If a proposed public offering includes both
securities to be offered for the account of the Company ("Company Shares") and
shares to be sold by shareholders, the provisions of this Section 2(b) shall be
applicable if the managing underwriter delivers a Cutback Notice stating that,
in its opinion, the number of shares (other than Warrant Shares to be sold by
the Holders) that selling shareholders propose to sell therein, whether or not
such selling shareholders have the right to include shares therein (the "Other
Shares"), plus the number of Warrant Shares that the Holders have requested to
be sold therein, plus the Company Shares, exceeds the maximum number of shares
specified by the managing underwriter in such Cutback Notice that may be
distributed without adversely affecting the price, timing or distribution of
the Company Shares. Such maximum number of shares that may be so sold,
excluding the Company Shares, are referred to as the "Includible Shares."
If the managing underwriter delivers such Cutback Notice,
the Company shall be entitled to include all of the Company Shares in the
public offering and each requesting Holder shall be entitled to include in the
public offering up to its pro rata portion of the Includible Shares and in
priority to the inclusion of any Other Shares that are proposed to be sold in
such public offering. No shareholder that proposes to sell Other Shares in the
proposed initial public offering may sell any such shares therein unless all
Warrant Shares requested by the Holders to be sold therein are so included.
(c) If a proposed public offering is entirely a
secondary offering, the provisions of this Section 2(c) shall be applicable if
the managing underwriter delivers a Cutback Notice stating that, in its
opinion, the aggregate number of Warrant Shares and Other Shares proposed to be
sold therein exceeds the maximum number of shares (the "Includible Secondary
Shares") specified by the managing underwriter in such Cutback Notice that may
be distributed without adversely affecting the price, timing or distribution of
the shares being distributed. If the managing underwriter delivers such
Cutback Notice, each
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requesting Holder shall be entitled to include in the public offering up to its
pro rata portion of the Includible Secondary Shares and in priority to the
inclusion of any Other Shares that are proposed to be sold in such public
offering. No shareholder that proposes to sell Other Shares in such public
offering may sell any such shares therein unless all Warrant Shares requested
by the Holders to be sold therein are so included.
(d) The underwriting agreement for such public
offering shall provide that each requesting Holder shall have the right to sell
its Warrant Shares (other than Warrant Shares excluded from such public
offering pursuant to a Cutback Notice and the terms of Sections 2(b) and 2(c))
to the underwriters and that the underwriters shall purchase the Warrant Shares
at the price paid by the underwriters for the Preferred Stock (or other
securities) sold by the Company and/or other selling shareholders, as the case
may be, (less in the case of unexercised Warrants, the exercise price).
3. Shelf Registration.
(a) If only the Company sells stock in an
initial public offering or all of the Warrant Shares have not been sold in a
public offering, the Company shall use its best efforts to cause to be filed
pursuant to Rule 415 under the Securities Act a shelf registration statement on
the appropriate form (the "Warrant Registration Statement") covering the
issuance of the Warrant Shares upon exercise of the Warrants and shall use its
best efforts to cause the Warrant Registration Statement to become effective
under the Securities Act within 180 days after the closing date of the
Company's initial public offering (except as provided in Section 4 below);
provided, however, that if the Commission shall request that the Company
register the resale of the Warrant Shares instead of the issuance thereof, the
Warrant Registration Statement shall register such resale as opposed to such
issuance. The Company shall use reasonable efforts to keep the Warrant
Registration Statement continuously effective until such time as all Warrants
have been exercised, or in the event the Company registers the resale of the
Warrant Shares, such time as all Warrant Shares have been resold (the "Shelf
Expiration Date"). Prior to filing the Warrant Registration Statement or any
amendment thereto, the Company shall provide a copy thereof to the Placement
Agents and their counsel and afford them a reasonable time to comment thereon.
(b) If the Warrant Registration Statement shall
register the resale of the Warrant Shares (a "Resale Shelf") as provided in the
proviso to the first sentence of Section 3(a) above, the Company agrees to:
(i) make available for inspection by a representative of the
Holders, any underwriter participating in any disposition pursuant to such
Resale Shelf and attorneys and accountants designated by the Holders, at
reasonable times and in a reasonable manner, financial and other records,
documents and properties of the Company that are pertinent to the conduct of
due diligence customary for an
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underwritten offering, and cause the officers, directors and employees of the
Company to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with a Resale
Shelf; provided, however, that such persons shall first agree in writing with
the Company to use such information only in connection with the transaction for
which such information was obtained and that any information that is reasonably
and in good faith designated by the Company in writing as confidential at the
time of delivery of such information shall be kept confidential by such
persons, unless and to the extent that disclosure of such information is
required by law or such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard such information
by such person;
(ii) use its best efforts to cause all Warrant Shares sold
under a Resale Shelf to be listed on any securities exchange or any automated
quotation system on which similar securities issued by the Company are then
listed if requested by the Holders of Warrant Shares representing a majority of
the Warrants originally issued, to the extent such Warrant Shares satisfy
applicable listing requirements;
(iii) provide a reasonable number of copies of the prospectus
included in such Resale Shelf to Holders that are selling Warrant Shares
pursuant to such Resale Shelf;
(iv) cause to be provided to the Warrant Agent, on behalf of
the Holders and beneficial owners of Warrant Shares, upon the effectiveness of
such Resale Shelf, a customary "10b-5" opinion of independent counsel (an
"Opinion") and a customary "cold comfort" letter of independent auditors (a
"Comfort Letter");
(v) in connection with any underwritten offering, cause to be
provided to the Warrant Agent, on behalf of the Holders and beneficial owners
of Warrant Shares an Opinion and Comfort Letter with respect to each Form 10-K
and Form 10-Q, including any amendments thereto, that is incorporated by
reference in such Resale Shelf upon the initial filing with the Commission of
such documents; and
(vi) notify the Warrant Agent, for distribution to the
Holders, (A) when the Resale Shelf has become effective and when any
post-effective amendment thereto has been filed and becomes effective, (B) of
any request by the Commission or any state securities authority for amendments
and supplements to the Resale Shelf or of any material request by the
Commission or any state securities authority for additional information after
the Resale Shelf has become effective, (C) of the issuance by the Commission or
any state securities authority of any stop order suspending the effectiveness
of the Resale Shelf or the initiation of any proceedings for that purpose, (D)
if, between the effective date of the Resale Shelf and the closing of any sale
of
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Warrant Shares covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement or
other similar agreement, including this Agreement, relating to disclosure cease
to be true and correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the Warrant
Shares for sale in any jurisdiction or the initiation of any proceeding for
such purpose, (E) of the happening of any event during the period the Resale
Shelf is effective such that such Resale Shelf or the related prospectus
contains an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make statements therein not
misleading and (F) of any determination by the Company that a post-effective
amendment to a Registration Statement would be appropriate. The Holders hereby
agree to suspend use of the prospectus contained in a Resale Shelf upon receipt
of such notice under clause (C) (but only to the extent of the issuance of any
stop order), (E) or (F) above until, in the case of clause (C) above, such stop
order is removed or rescinded, or, in the case of clause (E) and (F) above, the
Company has amended or supplemented such prospectus to correct such
misstatement or omission.
4. Suspension.
Notwithstanding the foregoing, during any consecutive
365-day period, the Company shall have the privilege to suspend availability of
the Warrant Registration Statement (or its obligations to file the Warrant
Registration Statement or cause it to become effective, as applicable) and the
related prospectus for up to 60 days, except during the 60 days immediately
prior to the Expiration Date, if the Board determines in good faith that there
is a valid purpose for such suspension and provides notice of such
determination (but not the purpose) to the Holders at their addresses appearing
in the register of Warrants maintained by the Warrant Agent.
5. Blue Sky.
The Company shall use its reasonable best efforts to
register or qualify the Underlying Securities proposed to be sold or issued
pursuant to the Registration Statement or the Warrant Registration Statement
under all applicable securities or "blue sky" laws of all jurisdictions in the
United States in which any Holder of Warrants may or may be deemed to purchase
Underlying Securities upon the exercise of Warrants or resale of the Warrant
Shares, as the case may be, and shall use its reasonable best efforts to
maintain such registration or qualification through the earliest of (A) in the
case of the Registration Statement, the date upon which all of the Warrant
Shares have been sold or such other date as shall be required by applicable
law, (B) the date upon which all Warrants have been exercised or all Warrant
Shares have been resold, as the case may be, under the Warrant Shelf
Registration Statement and (C) the Expiration Date; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation or as a
broker or a
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dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 5, (ii) file any general consent to
service of process or (iii) subject itself to taxation in any jurisdiction if
it is not otherwise so subject.
6. Accuracy of Disclosure.
The Company (and its successors) represents and warrants
to each Holder (and each beneficial owner of a Warrant or Warrant Share) and
agrees for the benefit of each Holder (and each beneficial owner of a Warrant
or Warrant Share) that, except during any period in which the availability of
the Warrant Registration Statement has been suspended, (i)the Warrant
Registration Statement and the documents incorporated by reference therein will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein not misleading; and (ii) the
prospectus contained in the Warrant Registration Statement delivered to such
Holder upon its exercise of Warrants or pursuant to which such Holder sells its
Warrant Shares, as the case may be, and the documents incorporated by reference
therein will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that the
representations, warranties and agreements set forth in this Section 6 do not
apply to statements or omissions in the Warrant Registration Statement or any
such prospectus based upon information relating to any Holder furnished to the
Company in writing by such Holder expressly for use therein.
7. Indemnity.
The Company hereby agrees to indemnify each beneficial
owner of a Warrant and each person, if any, who controls any beneficial owner
of a Warrant within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934 (the "Exchange Act"), or is
under common control with, or is controlled by, any beneficial owner of a
Warrant (whether or not it is, at the time the indemnity provided for in this
Section 7 is sought, such a beneficial owner), from and against all losses,
damages or liabilities which such beneficial owner or any such controlling or
affiliated person suffers as a result of any breach, on the date of any
exercise of a Warrant by such beneficial owner or the resale of any Warrant
Share by such Holder, in either case pursuant to the Warrant Registration
Statement, of the representations, warranties or agreements contained in
Section 6. Each beneficial owner of a Warrant Share sold pursuant to a Resale
Shelf, by accepting its beneficial ownership of a Warrant, hereby (i) agrees to
provide the Company with information with respect to it that the Company
reasonably requests in connection with any Resale Shelf and (ii) agrees,
severally and not jointly, to indemnify the Company, its directors and officers
and each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
liability incurred by it or such controlling person as a result of any
misstatement of
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information provided by such beneficial owner to the Company in writing
expressly for inclusion in the Resale Shelf.
8. Expenses.
All expenses incident to the Company's performance of or
compliance with its obligations under this Agreement will be borne by the
Company, regardless of whether a Registration Statement or Warrant Registration
Statement becomes effective, including without limitation (i) all Commission or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all reasonable fees and expenses incurred in connection with compliance
with state securities or "blue sky" laws, (iii) all reasonable expenses of any
persons incurred by or on behalf of the Company in preparing or assisting in
preparing, word processing, printing and distributing any registration
statement, any prospectus, any amendments or supplements thereto and other
documents relating to the performance of and compliance with this Agreement,
(iv) the reasonable fees (including legal fees and expenses) and disbursements
of the Warrant Agent, (v) the reasonable fees and disbursements of counsel for
the Company and (vi) the fees and disbursements, if any, of the Auditors but
excluding any fees, expenses and disbursements of the Holders (not included
above), including, without limitation, (x) fees and disbursements of counsel
retained by the participating Holders and (y) the Holders' share of
underwriting discounts and commissions.
9. Resale Shelf Registration Statement
In the event that, after an initial public offering of
Preferred Stock (or other securities), any of the Placement Agents, or any
successors thereto, in its reasonable opinion, becomes an Affiliate (as such
term is defined in Rule 144 under the Securities Act) of the Company, or any
successor thereto, the Company (or its successor) shall use its best efforts to
cause to be filed as soon as practicable after receiving notice thereof from
the Placement Agents (or its successor) a shelf registration statement (the
"Resales Registration Statement") under the Securities Act providing for the
resale by the Placement Agents (or its successor) of all Warrants and Preferred
Stock (or other securities) it acquires from time to time in connection with
market-making activities and to have such shelf registration statement declared
effective by the Commission. The provisions of this Agreement concerning the
Warrant Registration Statement shall apply to the Resales Registration
Statement as if such Resales Registration Statement were the Warrant
Registration Statement (except that the Company (or its successor) will use its
best efforts to keep the Resales Registration Statement effective until the
earlier of (i) the tenth anniversary of the Closing Date and (ii) such time as
the relevant Placement Agent shall, in its opinion, cease to be an Affiliate of
the Company, as evidenced by written notice sent promptly upon such event).
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10. Miscellaneous.
(a) No Inconsistent Agreements. Each of the
Company and the Warrant Agent represent to the other that it has not entered
into, and agrees that on or after the date of this Agreement it will not enter
into, any agreement which is inconsistent with the rights granted to the
Holders of Warrants or Warrant Shares in this Agreement or otherwise conflicts
with the provisions hereof. The Company represents that the rights granted to
the Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's other issued and
outstanding securities under any agreements.
(b) Amendments and Waivers. The provisions of
this Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company and the Warrant Agent
have obtained the written consent of Holders of at least a majority of the
outstanding Warrants affected by such amendment, modification, supplement,
waiver or consent; provided that any amendment, modification or supplement to
this Agreement which, in the good faith opinion of the Board of Directors of
the Company (and evidenced by a resolution of such board), does not adversely
affect any Holder, shall not be subject to such requirement for written
consent.
(c) Notices. All notices and other
communications provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder, at the most current address
given by such Holder to the Company by means of a notice given in accordance
with the provisions of this Section 10(c); (ii) if to the Company, initially at
the Company's address set forth in the Warrant Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 10(c); and (iii) if to the Warrant Agent, initially at the Warrant
Agent address set forth in the Warrant Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 10(c).
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered;
five business days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to an air courier
guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement
shall inure to the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation, subsequent
Holders; provided that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Warrants in violation of the terms of
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the Placement Agreement, the Warrant Agreement or applicable law. If any
transferee of any Holder shall acquire Warrants, in any manner, whether by
operation of law or otherwise, such Warrants shall be held subject to all of
the terms of this Agreement and the Warrant Agreement, and by taking and
holding such Warrants such person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
or the Warrant Agreement and such person shall be entitled to receive the
benefits hereof.
(e) Purchases and Sales of Warrants. The
Company shall not, and shall use its best efforts to cause its affiliates (as
defined in Rule 405 under the Securities Act) not to, purchase and then resell
or otherwise transfer any Warrants other than Warrants acquired and cancelled.
(f) Third Party Beneficiary. The Holders shall
be third party beneficiaries to the agreements made hereunder between the
Company and the Warrant Agent, and each Holder shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
Notwithstanding anything to the contrary contained herein, the Placement Agents
will be a third party beneficiary to the agreements between the Company and the
Warrant Agent contained in Section 9 hereof, such section shall not be amended,
modified or supplemented without the prior written consent of the Placement
Agents and the Company's obligations under Section 9 will survive the
termination of this Agreement and the performance of all other obligations
under this Agreement.
(g) Counterparts. This Agreement may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. This Agreement shall be
governed by the laws of the State of New York.
(j) Severability. In the event that any one or
more of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
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(k) Waiver of Immunity. To the extent that the
Company has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service of notice, attachment
prior to judgement, attachment in aid of execution, execution or otherwise)
with respect to itself or its property, it hereby irrevocably waives such
immunity in respect of its obligations under this Agreement to the fullest
extent permitted by law.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
KNOLOGY HOLDINGS, INC.
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title CEO
UNITED STATES TRUST COMPANY
OF NEW YORK
By /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
