EXECUTION COPY
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of May 4, 1999 to the Note Purchase
Agreement referred to below, between:
NUCO2 INC., a corporation duly organized and validly existing
under the laws of the State of Florida (the "Company");
each of the Subsidiaries of the Company appearing under the
caption "SUBSIDIARY GUARANTORS" on the signature pages hereto (each a
"Subsidiary Guarantor" and, collectively, the "Subsidiary Guarantors";
and, together with the Company, the "Obligors"); and
each of the Investors, including the Additional Investors (as
defined below), appearing under the caption "INVESTORS" on the
signature pages hereto (each, an "Investor", and collectively, the
"Investors").
WHEREAS, the Obligors and the Investors (other than SunTrust Banks,
Inc. ("SunTrust")) are party to a Senior Subordinated Note Purchase Agreement
dated as of October 31, 1997 (as heretofore modified and supplemented and in
effect on the date hereof, the "Note Purchase Agreement"), pursuant to which the
Company issued its 12% Senior Subordinated Notes due 2004 in an aggregate
principal amount of $30,000,000 (the "Existing Notes") to such Investors (other
than SunTrust). Chase Equity Associates L.P. ("Chase Capital") and SunTrust
desire to purchase from the Company, and the Company desires to issue to each of
Chase Capital and SunTrust, its 12% Senior Subordinated Note due 2005 (each such
Note, a "2005 Note") in the aggregate principal amount of $13,000,000 and
$2,000,000, respectively, under the Note Purchase Agreement, having the same
terms as the Existing Notes heretofore issued by the Company thereunder (except
as otherwise provided herein) and the parties to the Note Purchase Agreement
wish to amend the Note Purchase Agreement to provide for such issuance and to
make certain other modifications thereto;
Accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 3, terms defined in the Note Purchase Agreement are used herein as
defined therein.
Section 2. Amendments to Note Purchase Agreement. Subject to the
satisfaction of the conditions precedent specified in Section 4 below, but
effective as of the date hereof, the Note Purchase Agreement shall be amended as
follows:
A. References in the Note Purchase Agreement to "this Agreement"
(and indirect references such as "hereunder", "hereby", "herein" and "hereof")
shall be deemed to be references to the Note Purchase Agreement as amended
hereby.
B. Section 1.01 of the Note Purchase Agreement shall be amended by
adding the following new definitions (to the extent not already included in said
Section 1.01) and inserting the same in the appropriate alphabetical locations
and amending the following definitions (to the extent already included in said
Section 1.01) to read in their entirety as follows:
"Amendment No. 3" means Amendment No. 3 dated as of May 4, 1999 to
this Agreement.
"First 2005 Note Closing Date" has the meaning assigned to such term
in Section 2.07(a).
"New Investor" has the meaning assigned to such term in Section
2.07(a).
"Required Investors" means, at any time after the First 2005 Note
Closing Date, Investors holding more than 60% in aggregate principal
amount of the Notes at the time outstanding, and at any time after the
Second 2005 Note Closing Date, Investors holding more than 63% in
aggregate principal amount of the Notes at the time outstanding (in each
case exclusive of Notes then owned by the Company or any of its
Affiliates); provided that, in each case, "Required Investors" shall
include at least two Investors.
"Second 2005 Note Closing Date" has the meaning assigned to such
term in Section 2.07(b).
"Senior Credit Agreement" means the Amended and Restated Revolving
Credit Agreement dated as of May 4, 1999 between the Company, the lenders
party thereto from time to time and SunTrust Bank, South Florida, National
Association, agent for such lenders, as executed and delivered on May 4,
1999, and any refinancing, refunding, extension or renewal thereof
(whether or not with any of the lenders or the agent for such lenders then
party to the Senior Credit Agreement), in each case, at any time amended
or modified in accordance with Section 8.10(a).
"Senior Debt" means the following obligations of the Company and its
Subsidiaries:
(i) with respect to the Company, all principal of the
loans outstanding under the Senior Credit Agreement, all
interest thereon (including any interest accruing after the
date of any filing by the Company of any petition in
bankruptcy or the commencing of any bankruptcy, insolvency or
similar proceedings with respect to the Company whether or not
the same is allowed as a claim in any such
proceeding) and all other amounts outstanding thereunder,
including all expenses (including, without limitation,
attorneys' fees), indemnities and penalties and all
commitment, facility and administrative, agency or other
similar fees payable by the Company from time to time under
the Senior Credit Documents, and including any obligations of
the Company in respect of Hedging Agreements owing to one or
more of the lenders under Senior Credit Agreement that are
required by the terms of the Senior Credit Agreement;
(ii) with respect to the Company, additional
Indebtedness in an aggregate principal amount up to but not
exceeding $15,000,000 under or in respect of (x) the Senior
Credit Agreement and (y)any other instrument evidencing such
Indebtedness; provided that, in the case of clause (y) only,
such Indebtedness is specifically designated in such other
instrument as "Senior Debt" for purposes of this Agreement;
(iii) with respect to the Company, additional
Indebtedness under or respect of (x) the Senior Credit
Agreement and (y) any other instrument evidencing such
Indebtedness; provided that (i) in the case of clause (y)
only, such Indebtedness is specifically designated in such
other instrument as "Senior Debt" for purposes of this
Agreement and (ii) after giving effect to the incurrence of
such Indebtedness (and the application of the proceeds
thereof), the Senior Debt Incurrence Ratio is less than or
equal to 3.50 to 1.00;
(iv) with respect to any Subsidiary Guarantor, the
Guarantee of such Subsidiary Guarantor in respect of any
Senior Debt of the Company; and
(v) with respect to the Company, any and all
refinancings, replacements or refundings of any of the amounts
referred to in clauses (i), (ii) and (iii) above; provided
that the refinancing, replacement or refunding of Senior Debt
incurred under said clause (iii) shall constitute Senior Debt
only to the extent that, after giving effect to such
refinancing, replacement or refunding (and the application of
the proceeds hereof), the Senior Debt Incurrence Ratio is less
than or equal to 3.50 to 1.00;
provided that the aggregate principal amount of Senior Debt
permitted under clauses (i) and (ii) above (together with the
amount of obligations in respect of Hedging Agreements
referred to in said clause (i)), and any refinancing,
replacement or refunding thereof permitted under clause (v)
above (including the maximum amount of the aggregate
commitments of the lenders to extend any revolving credit
facility thereunder) shall not exceed at any time $90,000,000
minus the aggregate amount of (x) permanent reductions in
revolving credit commitments thereunder and (y) prepayments of
any term loans made from time to time in respect of the Senior
Debt.
"SunTrust" means SunTrust Banks, Inc.
"2005 Note" has the meaning assigned to such term in Section
2.07(a).
C. Section 2.03(a) of the Note Purchase Agreement shall be
amended in its entirety to read as follows:
"(a) The Company's obligation to pay the principal of
and interest on all the Notes issued by it shall be evidenced by a
Note, substantially in the form of Exhibit A (except, in the case of
the 2005 Notes, as modified by Section 2.07(a)), duly executed and
delivered by the Company with blanks appropriately completed in
conformity herewith."
D. A new Section 2.04(e) is added to the Note Purchase
Agreement to read as follows:
"(e) Notwithstanding anything in this Agreement or
the Notes to the contrary, the unpaid principal amount of each Note
(other than the 2005 Notes) shall bear interest at the rate of 14% Mar
annum during each fiscal quarter (commencing with the fiscal quarter
beginning on April 1, 1999) of the Company in which the Total Net
Funded Debt Coverage Ratio exceeds 5.50 to 1.00 as at the end of the
immediately preceding fiscal quarter (that portion of the interest
accruing on the Notes in excess of 12% being herein referred to as
"Additional Interest"); provided, however, that no Additional Interest
shall accrue prior to May 4, 1999. Interest accruing pursuant to the
immediately preceding sentence will be payable as provided in Section
2.04(c); provided, however, that any Additional Interest accruing with
respect to any fiscal quarter ending on (i) March 31 will be payable on
May 31 of such year and (ii) September 30 will be payable on November
30 of such year.
E. A new Section 2.07 is added to the Note Purchase Agreement
to read as follows:
"SECTION 2.07 Issuance of 2005 Notes.
(a) Subject to and upon the terms and conditions set
forth in the immediately succeeding sentence, each of Chase Capital and
SunTrust (each, a "New Investor") agrees to purchase from the Company,
and the Company agrees to issue to each New Investor, its 12% Senior
Subordinated Notes due 2005 (the "2005 Notes"), which Notes (i) shall
be issued on May 4, 1999 (or such later date as the Company and the New
Investors shall mutually agree, but not later than May [4], 1999) (the
"First 2005 Note Closing Date"), (ii) shall be in a principal amount of
$8,666,667, in the case of Chase Capital, and $1,333,333, in the case
of SunTrust, and purchased at par by such New Investor and (iii) shall
otherwise be in the form of Exhibit A (except that the maturity date
thereof shall be October 31, 2005). Each 2005 Note shall constitute a
Note,
and each New Investor shall be an Investor, for all purposes of this
Agreement. The issuance of the 2005 Notes to the New Investors is
subject, at the time of purchase, to the satisfaction of the following
conditions: (i) receipt by the New Investors of a certificate of a
senior officer of the Company, dated the date of such purchase, to the
effect, both immediately prior to the purchase of such 2005 Notes and
also after giving effect thereto and the intended use thereof, set
forth in clauses (a) and (b) of Section 5.02; (ii) receipt by each New
Investor of the 2005 Note of such New Investor, duly executed and
completed for such New Investor; and (iii) the execution and delivery
of an amendment to the Warrant Agreement satisfactory to the New
Investors providing for the issuance of Warrants to the New Investors
(or any Affiliate thereof) for the purchase of 323,173 Stock Units (as
defined in the Warrant Agreement), in the case of Chase Capital, and
49,719 Stock Units (as defined in the Warrant Agreement), in the case
of SunTrust, and making certain other modifications thereto as mutually
agreed by the Company and the Investors (including the New Investors).
Notwithstanding anything to the contrary herein or in the 2005 Notes,
interest on the 2005 Notes issued on the First 2005 Note Closing Date
under this Section 2.07(a) shall accrue from and including the First
2005 Note Closing Date and the initial payment of interest on the 2005
Notes issued under this Section 2.07(a) shall be made on October 31,
1999.
(b) Subject to and upon the terms and conditions set
forth in the immediately succeeding sentence and upon ten Business
Days' prior written notice from the Company to the New Investors, each
New Investor agrees to purchase from the Company, and the Company
agrees to issue to each New Investor, an additional 2005 Note, which
Notes (i) shall be issued on any Business Day (such day, the "Second
2005 Note Closing Date") during the period from the First 2005 Note
Closing Date to and including Xxxxx 00, 0000, (xx) shall be in a
principal amount of $4,333,333, in the case of Chase Capital, and
$666,667, in the case of SunTrust, and purchased at par by such New
Investor and (iii) shall otherwise be in the form of the 2005 Notes
issued under Section 2.07(a). Each such 2005 Note shall constitute a
Note, and each such New Investor shall be an Investor, for all purposes
of this Agreement. The issuance of such 2005 Notes to such New
Investors is subject, at the time of purchase, to the satisfaction of
the following conditions: (i) receipt by the New Investors of a
certificate of a senior officer of the Company, dated the date of such
purchase, to the effect, both immediately prior to the purchase of such
2005 Notes and also after giving effect thereto and the intended use
thereof, set forth in clauses (a) and (b) of Section 5.02; (ii) receipt
by each New Investor of the 2005 Note of such New Investor, duly
executed and completed for such New Investor; (iii) receipt by the
Investors of the most recent financial statements required to be
delivered pursuant to Section 7.01(a) or 7.01(b), as applicable; and
(iv) the Total Net Funded Debt Coverage Ratio as of the end of and for
the most recent fiscal quarter for which financial statements have been
delivered pursuant to clause (iii) above would not exceed 6.0 to 1.0
after giving effect to the issuance of such 2005 Notes, and receipt by
the New Investors of a certificate of a senior officer of the Company,
dated the date of such purchase, demonstrating in reasonable detail to
that effect. Notwithstanding anything to
the contrary herein or in the 2005 Notes, interest on the 2005 Notes
issued on the Second 2005 Note Closing Date under this Section 2.07(b)
shall accrue from and including the Second 2005 Note Closing Date and
the initial payment of interest on the 2005 Notes issued under this
Section 2.07(b) shall be made on the first 30~ day of April or the
first 31~ day of October, whichever is earlier, to occur following the
Second 2005 Note Closing Date.
The Company shall pay to each New Investor a
commitment fee on the principal amount of the 2005 Notes to be issued
to such New Investor on the Second 2005 Note Closing Date for the
period from and including the First 2005 Note Closing Date to but not
including the earlier of the Second 2005 Note Closing Date and March
31, 2000 (or such earlier date on which the Company shall terminate in
writing to each of the New Investors the obligations of the New
Investors to purchase the 2005 Notes pursuant to this Section 2.07(b))
at a rate per annum equal to 1/2 of 1%. The accrued commitment fee
(which shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first
but excluding the last day)) shall be payable in arrears on April 30
and October 31 of each year (or if any date is not a Business Day, on
the immediately succeeding Business Day), commencing on October 31,
1999, and on the date on which the obligations of the New Investors to
purchase the 2005 Notes pursuant to this Section 2.07(b) shall
terminate. "
F. Section 3.01(a) of the Note Purchase Agreement shall be
amended in its entirety to read as follows:
"(a) The Company may, at its option, upon notice as
provided below, prepay all or, from time to time, part of the Notes
(other than the 2005 Notes) at any time at the following prices
(expressed in percentages of principal amount) in each of the years
listed below, in each case, together with interest accrued and unpaid
on the Notes (other than the 2005 Notes) (or part thereof, as the case
may be) to the prepayment date:
Year Price
From the Closing Date
through October 31, 1998 106%
From November 1, 1998
through October 31, 1999 104%
From November 1, 1999
through October 31, 2000 102%
From November 1, 2000
and thereafter 100%
The Company may, at its option, upon notice as provided below, prepay
all or, from time to time, part of the 2005 Notes at any time at the
following prices (expressed in percentages of principal amount) in each
of the years listed below, in each case, together with interest accrued
and unpaid on the 2005 Notes (or part thereof, as the case may be) to
the prepayment date:
Year Price
From the Closing Date
through April 30, 2000 106%
From May 1, 2000
through April 30, 2001 104%
From May 1, 2001
through April 30, 2002 102%
From May 1, 2002
and thereafter 100%"
G. The first sentence of Section 3.01(d) of the Note Purchase
Agreement shall be amended in its entirety to read as follows:
"(d) In the event of a Change in Control, any
Investor shall have the option to require the Company to repurchase (i)
the Notes (other than the 2005 Notes) held by such Investor at a price
equal to 101% of the principal amount of such Notes if such Change in
Control occurs prior to the third anniversary of the date hereof and
thereafter at a price equal to 100% of the principal amount of such
Notes, in each case, together with interest accrued and unpaid on the
Notes (or part thereof, as the case may be) to the payment date and/or
(ii) the 2005 Notes held by such Investor at a price equal to 101% of
the principal amount of such Notes if such Change in Control occurs
prior to the third anniversary of the First 2005 Note Closing Date and
thereafter at a price equal to 100% of the principal amount of such
Notes, in each case, together with interest accrued and unpaid on the
Notes (or part thereof, as the case may be) to the payment date. "
H. The last sentence of Section 3.02 of the Note Purchase
Agreement shall be amended in its entirety to read as follows:
"Anything in this Agreement or the Notes to the
contrary notwithstanding, any payment of principal of, or premium or
interest on any Note, or any other payment hereunder or under the
Notes, that is due on a date other than a Business Day shall be
made on the next succeeding Business Day without including the
additional days elapsed in the computation of the interest payable on
such next succeeding Business Day. "
I. Section 5.02 of the Note Purchase Agreement shall be
amended in its entirety to read as follows:
"SECTION 5.02. Other Conditions Precedent. The
obligation of any Investor to purchase its Note(s) (including its 2005
Note(s)) hereunder is subject to the further conditions precedent that,
both immediately prior to the purchase of such Note(s) and also after
giving effect thereto and to the intended use thereof:
(a) no Default shall have occurred and be continuing;
and
(b) the representations and warranties made by the
Company in Article VI shall be true and correct on and as of the
Closing Date (or the First 2005 Closing Date or the Second 2005 Closing
Date, as applicable, in the case of the 2005 Notes) with the same force
and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date)."
J. A new Section 5.03 is added to the Note Purchase Agreement
to read as follows:
"SECTION 5.03 Conditions Precedent to Second 2005
Notes. The obligation of each New Investor to purchase its 2005 Note on
the Second 2005 Note Closing Date is subject to the further condition
precedent that the Company shall have issued and delivered to such
Investors the Warrants required to be issued under Section 2.08(b) of
the Warrant Agreement in the amounts therein specified and shall have
executed and delivered each of the other agreements and instruments
contemplated to be executed and/or delivered under said Section 2.08(b)
with respect to such Warrants."
K. Section 8.09 of the Note Purchase Agreement shall be
amended in its entirety to read as follows:
"SECTION 8.09 Financial Covenants.
(a) Interest Coverage Ratio. The Company will not
permit the Interest Coverage Ratio to be less than the following
respective ratios as at the last day of each fiscal quarter during the
following respective periods:
Period Ratio
From April 1, 1999
through December 31, 1999 1.25 to 1.00
From January 1, 2000
through March 31, 2000 1.50 to 1.00
From April 1, 2000
through June 30, 2000 1.75 to 1.00
From July 1, 2000
through September 30, 2000 2.00 to 1.00
From October 1, 2000
and at all times thereafter 2.50 to 1.00
(b) Total Net Funded Debt Coverage Ratio. The Company
will not permit the Total Net Funded Debt Coverage Ratio to exceed the
following respective ratios at any time during the following respective
periods:
Period Ratio
From January 1, 1999
through June 30, 1999 6.75 to 1.00
From July 1, 1999
through September 30, 1999 6.00 to 1.00
From October 1, 1999
through December 31, 1999 5.50 to 1.00
From January 1, 2000
through March 31, 2000 5.00 to 1.00
From April 1, 2000
and at all times thereafter 4.50 to 1.00
(c) Minimum Net Worth. The Company shall at all times
maintain Consolidated Net Worth of not less than the sum of (a)
$40,000,000, (b) ~ 50% of the cumulative Consolidated Net Income for
each fiscal quarter ending on or after December 31, 1997 (but
specifically not including any Consolidated Net Loss for any such
fiscal quarter) plus (c) the cumulative net proceeds of all equity
offerings (if any) made by the Company for each fiscal quarter ending
on or after September 30, 1997."
L. Section 8.10(a) of the Note Purchase Agreement shall be
amended in its entirety to read as follows:
"(a) The Company will not, and will not permit any of
its Subsidiaries to, change, amend, supplement or otherwise modify the
terms of the Senior Credit Documents, or refund or refinance the same,
without the prior consent of the Required Investors, if the effect of
such amendment or such refunding or refinancing is to:
(i) impose upon the Company, directly or indirectly,
any prohibition or limitation on its ability to make regularly
scheduled payments of principal of or interest on the Notes,
or any other amounts owing to the Investors under this
Agreement, except as provided in the subordination provisions
set forth in Article XI;
(ii) extend or shorten the scheduled maturity of any
payment of any principal amount of the loans under the Senior
Credit Agreement, except (x) altering or modifying the payment
schedule of such loans so as to cause the average life to
maturity of such loans to be not more than three years longer
than the average life to maturity of such loans as of the date
hereof or (y) extending the final maturity date of such loans
by more than three years; and
(iii) change, amend, supplement or otherwise modify
Section 2.1 l(d) of the Senior Credit Agreement or change,
amend, supplement or otherwise modify the terms of the Senior
Credit Agreement to require a reduction in the Commitments (as
defined in the Senior Credit Agreement) as a result of a
mandatory prepayment under Section 2.11 of the Senior Credit
Agreement."
M. Schedules 6.06(a), 6.10, 6.12, 6.13, 8.01 and 8.02 to the
Note Purchase Agreement are hereby amended to read as set forth in Schedules
6.06(a), 6.10, 6.12, 6.13, 8.01 and 8.02, respectively, to this Amendment No. 3.
Section 3. Representations and Warranties.
(a) The Company represents and warrants to the Investors that
(i) the representations and warranties set forth in Article VI of the Note
Purchase Agreement (as amended hereby) are true and complete on the date hereof
as if made on and as of the date hereof and as if each reference in said Article
VI to "this Agreement" (or words of similar import) referred to the Note
Purchase Agreement as amended by this Amendment No. 3 and (ii) no Default has
occurred and is continuing.
(b)Each New Investor represents to the Company that the
representations set forth in Article IV of the Note Purchase Agreement are true
and complete with respect to such New Investor on the date of each purchase of
its 2005 Note pursuant to Section 2.07 of the Note
Purchase Agreement, as amended hereby, as if made on and as of such date and as
if each reference in said Article IV to "this Agreement" (or words of similar
import) referred to the Note Purchase Agreement as amended by this Amendment No.
3.
Section 4. Conditions Precedent. As provided in Section 2
above, the amendments to the Note Purchase Agreement set forth in said Section 2
shall become effective, as of the date hereof, upon the satisfaction of the
following conditions:
(a) Amendment No. 3. The execution and delivery of one or more
counterparts of this Amendment No. 3 by each of the parties hereto and
receipt by the Investors of evidence that the lenders party to the
Senior Credit Agreement shall have approved this Amendment No. 3.
(b) Corporate Documents. Receipt by the Investors of certified
copies of the charter and by-laws (or equivalent documents) of each
Obligor and of all corporate authority for each Obligor (including,
without limitation, board of director resolutions and evidence of the
incumbency, including specimen signatures, of officers) with respect to
the execution, delivery and performance of this Amendment No. 3 and
each other document to be delivered by such Obligor from time to time
in connection herewith and the 2005 Notes hereunder (each Investor may
conclusively rely on such certificate until it receives notice in
writing from such Obligor to the contrary).
(c) Officer's Certificate. Receipt by the Investors of a
certificate of a senior officer of the Company, dated the First 2005
Note Closing Date, to the effect set forth in clauses (a) and (b) of
Section 5.02.
(d) Opinion of Counsel to the Obligors. Receipt by the
Investors of an opinion, dated the First 2005 Note Closing Date, of
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Wolosky LLP, counsel to the
Obligors, in form and substance reasonably satisfactory to the Required
Investors (and each Obligor hereby instructs such counsel to deliver
such opinion to the Investors).
(e) Opinion of Special New York Counsel to the Investors.
Receipt by the Investors of an opinion, dated the First 2005 Note
Closing Date, of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York
counsel to Chase Capital, in form and substance reasonably satisfactory
to the Required Investors.
(f) 2005 Notes. Receipt by the Additional Investors of the
2005 Notes to be purchased on the First 2005 Note Closing Date, duly
completed and executed for each New Investor.
(g) Warrants. Receipt by the New Investors of the Warrants
required to be issued under Section 2.08(a) of the Warrant Agreement,
as amended, in the amounts therein
specified and each of the other agreements and instruments contemplated
to be executed and/or delivered under said Section 2.08(a) with respect
to such Warrants
(h) Other Documents. Receipt by the New Investors of such
other documents as any Additional Investor or special New York counsel
to the Investors may reasonably request.
Section 5. Miscellaneous. Except as herein provided, the Note
Purchase Agreement shall remain unchanged and in full force and effect. This
Amendment No. 3 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 3 by signing any such
counterpart. This Amendment No. 3 shall be governed by, and construed in
accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 3 to be duly executed and delivered as of the day and year first
above written.
NUCO2 INC.
By /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer and
Treasurer
SUBSIDIARY GUARANTORS
NUCO2 ACQUISITION CORP.
By /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer and
Treasurer
XXXX COMPRESSED GASES, INC.
By /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer and
Treasurer
INVESTORS
CHASE EQUITY ASSOCIATES L.P.
By Chase Capital Partners,
its general partner
By____________________________________
Title:
DK ACQUISITION PARTNERS, L.P.
By X.X. Xxxxxxxx & Co.,
its general partner
By____________________________________
Title:
EMPIRE INSURANCE COMPANY,
as executed on their behalf by
their Investment Manager,
Cohanzick Management, L.L C.
By____________________________________
Title:
ORIX USA CORPORATION
By____________________________________
Title:
PAINEWEBBER HIGH INCOME FUND,
a series of PaineWebber Managed
Investments Trust
By____________________________________
Title:
SUNTRUST BANKS, INC.
By____________________________________
Title:
