Exhibit 10.7
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
LOCK UP, VOTING AND CONSENT AGREEMENT
This Lock Up, Voting and Consent Agreement (this "AGREEMENT"), dated as
of May 24, 2002, is entered into and made by and among Dade Behring Holdings,
Inc., a Delaware corporation ("HOLDINGS"), Dade Behring Inc., a Delaware
corporation, ("DBI"), Dade MicroScan Inc., a Delaware corporation ("MICROSCAN"),
Dade Finance, Inc., a Delaware corporation (`FINANCE"), Syva Diagnostics Holding
Co., a Delaware corporation ("SYVA HOLDINGS"), Syva Company, a Delaware
corporation ("SYVA"), Syva Childcare Inc., a Delaware corporation ("CHILDCARE")
and Chimera Research and Chemical, Inc., a Florida corporation ("CHIMERA", and
together with Holdings, DBI, MicroScan, Finance, Syva Holdings, Syva and
Childcare, collectively, the "DEBTOR" or the "COMPANY"), each of the undersigned
holders (each, a "CONSENTING HOLDER" and, collectively, the "CONSENTING
HOLDERS") of the Existing Senior Debt, the Old Notes and the Existing Common
Stock (each as defined below). All capitalized terms not otherwise defined
herein have the meanings given to such terms in the Term Sheet (as defined
below).
WHEREAS, DBI is a borrower under that certain Credit Agreement, dated
as of June 29, 1999 (as amended, supplemented or otherwise modified from time to
time, the "EXISTING SENIOR CREDIT AGREEMENT") by and among DBI, Dade Behring
Holdings GmbH, various lending institutions and Deutsche Bank Trust Company
Americas (f/k/a Bankers Trust Company), as administrative agent (in such
capacity, the "ADMINISTRATIVE AGENT"). As of March 31, 2002, an aggregate
principal amount of approximately $1,113,000,000 was outstanding (including B
Revolving Loans (as defined in the Existing Senior Credit Agreement) to Dade
Behring Holdings GmbH)) (the "EXISTING SENIOR DEBT");
WHEREAS, DBI has issued 11 1/8 % Subordinated Notes Due 2006, Series B
with an aggregate original principal balance of $350,000,000 and accrued
interest and fees as of March 1, 2002, of approximately $51,000,000 (the "OLD
NOTES") pursuant to an indenture, dated as of May 7, 1996, (the "INDENTURE") by
and between DBI and HSBC USA, as trustee (the "OLD NOTES TRUSTEE");
WHEREAS, Holdings has issued and has outstanding 48,382,243.72 shares,
on a fully diluted basis, including all vested options and warrants of common
stock and Xxxx Capital Fund IV, L.P., Xxxx Capital Fund IV-B, L.P., BCIP
Associates, BCIP Trust Associates, L.P., Xxxxxxxx Street Partners (collectively,
the "BAIN ENTITIES"), GS Capital Partners L.P., Bridge Street Fund 1994, L.P.,
Stone Street Fund 1994, L.P. (collectively, together with XX Xxxx LLC, the
"Goldman Entities"), and Hoechst AG hold in the aggregate not less than 82.9%
(on a fully diluted basis) of such common stock (the "EXISTING COMMON STOCK")
(the Bain Entities, the Goldman Entities (other than XX Xxxx LLC) and Hoechst
AG, are collectively referred to, for purposes of this Agreement solely in their
capacity as holders of Existing Common Stock, as the "EQUITYHOLDERS");
WHEREAS, the Bain Entities, the Goldman Entities and Hoechst AG own
$18,736,186, $9,269,000 and $39,645,000 in aggregate principal amount,
respectively, of Old Notes (collectively, for purposes of this Agreement solely
in their capacity as holders of Old Notes, the "INSIDER NOTEHOLDERS").
WHEREAS, Debtor and the Consenting Holders have engaged in good faith
negotiations with the objective of reaching an agreement with regard to
restructuring of the Existing Senior Debt and Old Notes and the treatment of all
equity interests of the Debtor, including the Existing Common Stock;
WHEREAS, Debtor and each of the Consenting Holders now desire to
implement a financial restructuring (the "FINANCIAL RESTRUCTURING") consistent
in all material respects with this Agreement and the term sheet attached hereto
as EXHIBIT A (the "TERM SHEET"), and in order to implement the Financial
Restructuring, Debtor intends to prepare and file a disclosure statement (the
"DISCLOSURE STATEMENT") and plan of reorganization reasonably acceptable to the
Administrative Agent, the ad hoc committee of holders of Old Notes, and holders
of Existing Common Stock and otherwise consistent in all material respects with
the terms set forth in this Agreement and the Term Sheet (the "PLAN")
implementing the terms of the Financial Restructuring pursuant to a prepackaged
case (the "CHAPTER 11 CASE") to be filed under the United States Bankruptcy
Code, 11 U.S.C. Section 101 ET SEQ. (the "BANKRUPTCY CODE"), and Debtor intends
to use its best efforts to have the solicitation of votes pursuant to the
Disclosure Statement approved under Section 1126(b)(2) of the Bankruptcy Code
and such Plan confirmed by the United States Bankruptcy Court for the Northern
District of Illinois (the "BANKRUPTCY COURT") in the Chapter 11 Case as
expeditiously as possible under the Bankruptcy Code and the Federal Rules of
Bankruptcy Procedure (the "BANKRUPTCY RULES")1;
WHEREAS, each Consenting Holder holds or is the legal or beneficial
owner of the aggregate principal amount of Existing Senior Debt, Old Notes
and/or Existing Common Stock (for each such party, the "RELEVANT CLAIM") or has
investment authority and the right or authority to vote ("VOTING CONTROL") in
the solicitation of acceptances to the Plan and the Financial Restructuring all
as set forth in the Term Sheet, in each case as set forth below each such
Consenting Holder's signature attached hereto;
WHEREAS, each Consenting Holder has reviewed, or has had the
opportunity to review, with the assistance of professional financial and legal
advisors of its choosing, the Term Sheet; and
WHEREAS, each Consenting Holder desires to support and (except for
Consenting Holders of Existing Common Stock, who, in such capacity, will be
deemed to reject the Plan pursuant to Section 1126(g) of the Bankruptcy Code)
vote for confirmation of the Plan, and Debtor desire to obtain the commitment of
the Consenting Holders to support and vote for the Plan, in each case subject to
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and
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1 If all of the holders of Existing Senior Debt execute this Agreement,
Holdings may elect, at its option, to file a Chapter 11 Case that does not
include all of its U.S. subsidiaries (the "NON-FILING SUBSIDIARIES").
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sufficiency of which are hereby acknowledged, Debtor and each of the Consenting
Holders agree as follows:
Section 1. REPRESENTATIONS OF CONSENTING HOLDER; ACKNOWLEDGMENT. (a)
Each Consenting Holder hereby severally (but not jointly) represents and
warrants to the Company as follows:
(1) As of the date hereof, Consenting Holder (a) is the legal
or beneficial owner of, or has Voting Control over, Existing Senior Debt and/or
Old Notes in the aggregate principal amount set forth below such Consenting
Holder's name on the signature pages hereof; if applicable, the registered
holder and custodial party for the Existing Senior Debt and/or Old Notes are as
set forth on the signature pages hereof; and, subject, in the case of the
Goldman Entities and the Bain Entities to SECTION 1(b) below, legally or
beneficially owns, or has Voting Control over, no other Existing Senior Debt
and/or Old Notes, or (b) in the case of a Consenting Holder of Existing Common
Stock, has legal and/or beneficial ownership of, or has Voting Control of the
number of shares of Existing Common Stock as set forth on the signature pages
hereof and holds no legal and/or beneficial ownership in, or Voting Control with
respect to, any other shares of Common Stock or other equity interests in the
Company or any of its subsidiaries.
(2) As of the date hereof, all Existing Senior Debt, Old Notes
and/or Existing Common Stock (as the case may be), legally or beneficially owned
by the applicable Consenting Holder, is so owned free and clear of all claims,
charges, leases, covenants, easements, encumbrances, pledges, security
interests, liens, options, pledges, rights of others, mortgages, transfer,
disposition, or otherwise), whether imposed by agreement, understanding, law,
equity, or otherwise, except for (a) any restrictions on, transfer generally
arising under any applicable federal or state securities law, or other defects
in title, and has not been pledged or assigned to any person and (b)
participations that may have been granted in Existing Senior Debt, it being
understood that any Consenting Holder that has granted any participation in the
Existing Senior Debt has or will obtain Voting Control in respect to such
participations; and
(3) Each Consenting Holder has received and reviewed this
Agreement, the Term Sheet and all exhibits to the Term Sheet and has received
all such information as it deems necessary and appropriate to enable it to
evaluate the financial risk inherent in the Financial Restructuring pursuant to
the terms of the Plan.
(b) Each Consenting Holder acknowledges that affiliates of the Goldman
Entities and the Bain Entities may legally or beneficially own Existing Senior
Debt and agree that the terms of this Agreement shall not bind such affiliates
or extend to such Existing Senior Debt unless such affiliates have executed this
Agreement in respect of such Existing Senior Debt.
Section 2. SUPPORT OF THE PLAN.
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(1) Subject to the terms and conditions contained herein, each
Consenting Holder severally agrees that so long as it is the legal owner,
beneficial owner and/or the holder of Voting Control of all or any portion of
the Relevant Claim, (i) from and after the date hereof through the date of
termination of the obligations under this Agreement pursuant to SECTION 9 hereof
it will not, directly or indirectly, agree to, consent to, provide any support
to, participate in the formulation of, or vote for any plan of reorganization or
liquidation, other than the Plan; PROVIDED that the terms of all the
Reorganization Documents (as defined below) are customary, incorporate the terms
and conditions set forth in, and are otherwise consistent in all material
respects with, the Term Sheet; (ii) (other than in respect of any Existing
Senior Debt and Existing Common Stock) it will at the request of the Debtor
execute and deliver a customary letter, in form and substance reasonably
satisfactory to the Company and such Consenting Holder, from the Consenting
Holder (or an ad hoc committee of Consenting Holders) for distribution to the
holders of any impaired claims against or interests in the Company, stating that
such Consenting Holder supports and has committed to vote to approve the Plan;
and (iii) agree to permit disclosure in the Disclosure Statement and any filings
by the Company with the Securities and Exchange Commission of the contents of
this Agreement, including, but not limited to, the commitments given in clause
(i) of this SECTION 2(1) and the aggregate Relevant Claims held by all
Consenting Holders; PROVIDED that the Company shall not disclose the amount of
the Relevant Claim of any individual Consenting Holder, except as otherwise
required by applicable securities law.
(2) Subject to the terms and conditions contained herein, each
Consenting Holder further severally agrees that so long as it is a holder of a
Relevant Claim, it shall not object to or otherwise commence any proceeding to
oppose, or object to, confirmation of the Plan, approval of the Disclosure
Statement or any other document filed in connection with the confirmation of the
Plan (hereinafter, such documents together with the Plan and Disclosure
Statement, each a "REORGANIZATION DOCUMENT"), and shall not take any action
which is inconsistent with, or that would delay approval or confirmation (as the
case may be) of any of the Disclosure Statement, the Plan or any other
Reorganization Document; PROVIDED that the terms of the Plan, the Disclosure
Statement and all other Reorganization Documents are customary, incorporate the
terms and conditions set forth in, and are otherwise consistent in all material
respects with, the Term Sheet.
(3) Subject to the terms and conditions contained herein, and
without limiting the generality of the foregoing, no Consenting Holder may
directly or indirectly seek, solicit, support or encourage any other plan,
transaction, sale, proposal or offer of dissolution, winding up, liquidation,
reorganization, merger or restructuring of the Company or any of its
subsidiaries other than as contemplated by the Term Sheet or any other
Reorganization Document.
Section 3. VOTING. Each Consenting Holder agrees for itself that it
shall timely vote its Relevant Claim and any other claims or interests that it
holds (and not revoke or withdraw such vote) to accept the Plan; PROVIDED that
the terms of the Plan, the Disclosure Statement and each other Reorganization
Document are customary, incorporate the terms and conditions set forth in, and
are otherwise consistent in all material respects with the terms described in
the Term Sheet.
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Section 4. FORBEARANCE. So long as this Agreement shall remain in
effect and subject to the continued satisfaction of all material terms and
conditions of the Term Sheet, each Consenting Holder hereby severally agrees to
forebear (and where necessary cause the forbearance, including by giving all
necessary instructions to the Old Notes Trustee and/or Administrative Agent in
accordance with the Indenture and/or Existing Senior Credit Agreement) during
the period commencing on the date hereof and ending on the earliest to occur of:
(a) the Effective Date (as defined in the Term Sheet) (it being understood that
such forbearance applies to any defaults caused solely by the commencement of
the Chapter 11 Case filed to implement the Financial Restructuring); (b) the
date on which the obligations of the Consenting Holders hereunder are terminated
pursuant to SECTION 9 hereof; or (c) the date on which any action against the
Debtor, any Consenting Holder or any Equity Released Party (as defined in the
Term Sheet) in respect of any Equityholder Released Claim (as defined in the
Term Sheet) is commenced in any court:
(1) in the case of any Old Notes comprising all or part of the
Relevant Claim of such Consenting Holder, from (x) exercising any rights or
remedies it may have under the Indenture and all related documents, applicable
law, or otherwise, (including, without limitation, the filing of an involuntary
petition against the Company), with respect to any existing default as of the
date hereof and including, without limitation, any default that has arisen or
event of default that may arise from the Company's failure to pay interest on
the principal amount of the Old Notes that was due and payable on May 1, 2002
under the Indenture and all related documents; and (y) commencing any action in
any court against the Debtor, any Equity Released Party or any Consenting Holder
in respect of any Equity Released Claim (as defined in the Term Sheet); and
(2) in the case of any Existing Senior Debt comprising all or
part of the Relevant Claim of such Consenting Holder, from (a) exercising any
rights and remedies it may have under the Existing Senior Credit Agreement and
all related documents, applicable law and otherwise against the Debtor or the
Non-Filing Subsidiaries with respect to any existing Default or Event of Default
(each as defined in the Existing Senior Credit Agreement) as of the date of
hereof, and after the date hereof (x)(i) any Default or Event of Default arising
under Section 9.03(a) of the Existing Senior Credit Agreement as a result of
Holdings failure to comply with Section 8.10 or 8.11 of the Existing Senior
Credit Agreement, (ii) any Default or Event of Default arising under Section
9.03(b) of the Existing Senior Credit Agreement as a result of Holdings failure
to deliver the certification by independent certified public accountants
described in Section 7.01(c) of the Existing Senior Credit Agreement with
respect to the annual financial statements of Holdings' and its subsidiaries for
the years ending December 31, 2000 and December 31, 2001 and (iii) any Default
or Event of Default arising under Section 9.04 of the Existing Senior Credit
Agreement as a result of the failure of DBI (I) to pay interest on the Old Notes
or (II) to file with the SEC and the Notes Trustee, pursuant to Section 4.08 of
the Indenture, annual reports on Form 10K for the years ending December 31, 2000
and December 31, 2001 and quarterly reports on Form 10Q for the quarters ending
March 31, 2001, June 30, 2001, September 30, 2001 and March 31, 2002 (it being
understood that such forbearance under the Existing Senior Credit Agreement
applies to any defaults (subject to the terms and conditions
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of the Fourth Amendment to the Existing Senior Credit Agreement (as defined
below)) caused solely by the commencement of the Chapter 11 Case filed to
implement the Financial Restructuring) and (b) commencing any action in any
court against the Debtor, any Equity Released Party or any Consenting Holder in
respect of any Equity Released Claim; and
(3) in the case of any B Revolving Loan comprising all or part
of the Relevant Claim of such Consenting Holder, from exercising any rights and
remedies it may have on account of the B Revolving Loans, subject to and in
accordance with the terms of Fourth Amendment to and Waiver under the Existing
Senior Credit Agreement dated as of the date hereof (the "FOURTH AMENDMENT").
Section 5. RESTRICTIONS ON TRANSFER. Each of the Consenting Holders
hereby severally agrees that, for so long as this Agreement shall remain in
effect, it shall not sell, transfer or assign all or any of its Relevant Claims
or any option thereon or any right, interest (voting or otherwise) therein,
unless the transferee agrees in writing to be bound by all of the terms of this
Agreement by executing counterpart signature pages to this Agreement
(identifying the transferee and the portion of the Relevant Claim transferred to
such transferee) and the transferor promptly provides the Company and other
notice parties with a copy thereof, in which event the Company shall be deemed
to have acknowledged that its obligations to the Consenting Holders hereunder
shall be deemed to constitute obligations in favor of such transferee, and the
Company shall confirm such acknowledgment in writing. Any sale, transfer or
assignment of any Relevant Claim that does not comply with the foregoing shall
be deemed void AB INITIO.
Section 6. FURTHER ACQUISITION OF EXISTING SENIOR DEBT, OLD NOTES,
EXISTING COMMON STOCK. This Agreement shall in no way be construed to preclude
the Consenting Holders or any of their respective subsidiaries from acquiring
additional Existing Senior Debt, Old Notes and/or equity interests (including
any Existing Common Stock) in the Company. However, any such additional Existing
Senior Debt, Old Notes or equity interest acquired by a Consenting Holder shall
automatically be deemed to be Relevant Claims and to be subject to the terms of
this Agreement. The Consenting Holder agrees that it shall not create any
subsidiary or affiliate or cause any existing subsidiary or affiliate to create
any subsidiary or affiliate for the sole purpose of acquiring any Existing
Senior Debt, Old Notes or Existing Common Stock. Upon the request of the
Company, each Consenting Holder shall provide an accurate current list of the
Relevant Claims held by such Consenting Holder to the Company and other notice
parties hereto.
Section 7. COMPANY AGREEMENT. The Company hereby agrees to use its
reasonable best efforts to have the Disclosure Statement approved by the
Bankruptcy Court, and thereafter to use its reasonable best efforts to obtain an
order of the Bankruptcy Court confirming the Plan, in each case as expeditiously
as commercially reasonable under the Bankruptcy Code and Bankruptcy Rules, and
incorporating the terms and conditions of this Agreement and the Term Sheet and
otherwise consistent in all material respects with this Agreement and the Term
Sheet (including with respect to the treatment of claims and interests and the
form of distribution therein contemplated). Each of the Consenting Holders shall
take all necessary corporate action to enable it to enter into this Agreement
and to comply with all of its obligations hereunder.
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Section 8. ACKNOWLEDGMENT. This Agreement is not and shall not be
deemed to be a solicitation for consents to the Plan. The acceptance of those
Consenting Holders entitled to vote on the Plan will not be solicited until the
Consenting Holders have received the Disclosure Statement and related ballot in
final form.
Section 9. TERMINATION. Upon the effectiveness of this Agreement in
accordance with paragraph 19, the obligations of the Consenting Holders
hereunder shall remain effective and binding until such time as one or more
Consenting Holders whose Relevant Claims in respect of the Existing Senior Debt,
or Old Notes or Existing Common Stock, as the case may be, equal or exceed one
third in amount of the total of the Relevant Claims in respect of the Existing
Senior Debt, or Old Notes or Existing Common Stock, as the case may be,
provide(s) written notice to Debtor of the termination of this Agreement, and
upon the receipt of such notice by Debtor the obligations of the parties
hereunder shall immediately and automatically terminate and shall be of no
further force or effect, which notice may be given by any such Consenting
Holder(s) (or the Administrative Agent acting upon the direction of any such
Consenting Holder(s) of Existing Senior Debt) if, and only if, one or more of
any of the following occurs:
(a) the Plan or any Restructuring Document is
modified to provide for treatment of such Consenting Holder(s) which is
different in any material adverse respect (it being understood that any change
in the form or amount of Plan distributions or in the terms of any releases or
indemnities contemplated by the Term Sheet shall be deemed "adverse" and
"material") to the treatment described in the Term Sheet;
(b) Debtor fails to commence the Chapter 11 Case on
or before August 1, 2002, or the Chapter 11 Case is commenced without the
simultaneous filing of the Plan and Disclosure Statement;
(c) the Plan is either not confirmed within 90 days
from the date that Debtor commences the Chapter 11 Case or not consummated
within 120 days from the date that Debtor commences the Chapter 11 Case;
(d) any term or condition of the Term Sheet that is
material to such Consenting Holder and is required therein to be satisfied prior
to the commencement of the Chapter 11 Case shall not have been satisfied (or
waived);
(e) The Chapter 11 Case of the Debtor is converted to
a case under Chapter 7 of the Bankruptcy Code or a trustee is appointed for the
Debtor under any Chapter of the Bankruptcy Code;
(f) Any written representation or warranty made by
the Company or its agents or representatives to the Consenting Holders in this
Agreement or the Term Sheet (including without limitation representations
relating to the Company's financial performance) is false or misleading in any
material respect when made;
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(g) The Debtor shall publicly announce its intention
not to pursue the Financial Restructuring in accordance with the Term Sheet or
proposes a transaction or chapter 11 plan that is not the Plan in any material
respect; and
(h) The Tolling Agreement dated as of the date hereof
(as the same may be hereafter amended, modified, supplemented, replaced or
superceded, the "TOLLING AGREEMENT") by and among, INTER ALIA, Holdings, DBI,
Deutsche Bank Trust Company Americas as Collateral Agent for the holders of
Existing Senior Debt, certain holders of Existing Senior Debt that are or may
become a party to the Tolling Agreement, certain holders of Old Notes party to
the Tolling Agreement, and certain holders of Existing Common Stock party to the
Tolling Agreement, shall terminate or as to a termination thereunder that
requires the giving of notice, such notice shall have been given, in each case
in accordance with its terms.
No party shall have any liability to the other or any other person as a
result of the termination of such party's obligations hereunder in accordance
with this paragraph 9.
Section 10. RELEASE OF HOLDERS OF EXISTING COMMON STOCK. Subject to the
condition that the Plan is consummated, in addition to, and in no way limiting
the releases in the Plan, each of the Consenting Holders party hereto is hereby
irrevocably deemed to have released, without any further action as of the
Effective Date, each of the Equity Released Parties from the Equityholder
Released Claims (each as defined in the Term Sheet). Subject to and effective as
of the consummation of the Plan, the releases by the Consenting Holders of the
Equityholder Released Claims with respect to the Equity Released Parties shall
be valid and fully enforceable, and shall be binding upon each Consenting
Holder, as a matter of contract and irrespective of whether a Reorganization
Document, the order confirming the Plan (or any other order pertaining to any
Reorganization Document, or any order entered as a result of any appeal or
motion for reconsideration) modifies or eliminates all or any provisions of the
Plan releasing the Equityholder Released Claims with respect to the Equity
Released Parties.
Section 11. RELEASE OF NON-FILING SUBSIDIARIES. Subject to (i) the
receipt by the Debtor of signatures to this Agreement from Consenting Holders
who in the aggregate hold 100% of the Existing Senior Debt, (ii) this Agreement
not having been terminated in accordance with Section 9 hereof, and (iii) the
consummation of the Plan, each of the Consenting Holders party hereto who hold
Existing Senior Debt is irrevocably deemed to (A) have released as of the
Effective Date, without any further action, each of the Non-Filing Subsidiaries
(if any) from their respective Obligations (as such term is defined in the
Existing Senior Credit Agreement) and (B) have directed the Collateral Agent (as
such term is defined in the Existing Senior Credit Agreement) to take such steps
and execute such releases and discharges, in accordance with the terms of the
Credit Documents (as such term is defined in the Existing Senior Credit
Agreement), as are reasonably necessary to effect the release set forth in (A)
above.
Section 12. GOOD FAITH NEGOTIATION OF DOCUMENTS. Each party hereby
further covenants and agrees to negotiate the documentation implementing the
Plan (including the Reorganization Documents) and any definitive documents
relating thereto (including, but not
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limited to, the New Notes and New Common Stock), in good faith and, in any
event, in all material respects consistent with the Term Sheet.
Section 13. REPRESENTATIONS AND WARRANTIES. Each of the Consenting
Holders and Debtors severally (but not jointly) represent and warrant to each
other that the following statements are true, correct and complete as of the
date hereof:
(1) POWER AND AUTHORITY. It has all requisite corporate,
partnership, or limited liability company power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby, and to perform
its obligations hereunder.
(2) DUE ORGANIZATION. It is duly organized, validly existing
and in good standing under the laws of its state of organization and it has the
requisite power and authority to execute and deliver this Agreement and to
perform its obligations hereunder.
(3) AUTHORIZATION. The execution and delivery of this
Agreement and the performance of its obligations hereunder have been duly
authorized by all necessary corporate, partnership or limited liability company
action on its part.
(4) NO CONFLICTS. The execution, delivery and performance of
this Agreement does not and shall not: (i) violate any provision of law, rule or
regulation applicable to it or any of its subsidiaries, (ii) violate its
certificate of incorporation, bylaws or other organizational documents or those
of any of its subsidiaries; or (iii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
material contractual obligation to which it or any of its subsidiaries is a
party.
(5) GOVERNMENTAL CONSENTS. The execution, delivery and
performance by it of this Agreement do not and shall not require any
registration or filing with, consent or approval of, or notice to, or other
action to, with or by, any federal, state or other governmental authority or
regulatory body (other than the approval of the Bankruptcy Court in the case of
Debtor).
(6) BINDING OBLIGATION. Subject to the provision of Sections
1125 and 1126 of the Bankruptcy Code, this Agreement is a legally valid and
binding obligation of such party, enforceable against such party in accordance
with its terms.
Section 14. FEES AND EXPENSES. The Company shall pay the reasonable
fees and expenses of the financial and legal advisors for each of the informal
committees formed by certain holders of Existing Senior Debt, and Old Notes
respectively, in accordance with the Term Sheet.
Section 15. COMPLETE AGREEMENT, MODIFICATION OF AGREEMENT. This
Agreement and the other agreements referenced herein constitute the complete
agreement between the parties with respect to the subject matter hereof. No
modification or amendment of the terms of this Agreement shall be valid unless
such modification or amendment is in writing and has been signed by the Debtors
and the other signatories hereto (and their permitted successors and
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assigns) that hold not less than two-thirds in amount of each of (i) all
Existing Senior Debt (ii) all Old Notes and (iii) all Existing Common Stock.
Notwithstanding the foregoing, no modification or amendment of the Agreement
shall be binding on any Consenting Holder that has not executed such
modification or amendment.
Section 16. SPECIFIC PERFORMANCE. It is understood and agreed by the
parties hereto that money damages would not be a sufficient remedy for any
breach of this Agreement by any party and each non-breaching party shall be
entitled to the sole and exclusive remedy of specific performance and injunctive
or other equitable relief, including attorneys fees and costs, as a remedy of
any such breach, and each party agrees to waive any requirement for the securing
or posting of a bond in connection with such remedy.
Section 17. ASSIGNMENT. Except as set forth in SECTION 5, no rights or
obligations of any party under this Agreement may be assigned or transferred to
any other person or entity.
Section 18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE. By its execution and delivery
of this Agreement, each of the Parties hereto hereby irrevocably and
unconditionally agrees for itself that any legal action, suit or proceeding
against it with respect to any matter under or arising out of or in connection
with this Agreement or for recognition or enforcement of any judgment rendered
in any such action, suit or proceeding, may be brought in the U.S. District
Court for the Southern District of New York. By execution and delivery of this
Agreement, each of the Parties hereto hereby irrevocably accepts and submits
itself to the nonexclusive jurisdiction of each such court, generally and
unconditionally, with respect to any such action, suit or proceeding.
Notwithstanding the foregoing consent to jurisdiction, upon the commencement of
the Chapter 11 Case, each of the Parties hereto hereby severally agrees that the
Bankruptcy Court shall have exclusive jurisdiction of all matters arising out of
or in connection with this Agreement.
Section 19. EFFECTIVENESS OF THE AGREEMENT. This Agreement shall become
effective when the Debtors have received counterparts hereof duly executed and
delivered by the Debtors and the holders of (1) the Existing Common Stock, (2)
at least two-thirds in principal amount of the Existing Senior Debt and (3) at
least two-thirds in principal amount of all outstanding Old Notes; PROVIDED that
Debtors together with the written consent of each of the Administrative Agent,
the ad hoc committee of Holders of Old Notes through its counsel, and the
holders of Existing Common Stock that are signatories hereto shall have the
right to waive such conditions to the effectiveness of this Agreement, in whole
or in part.
Section 20. INDEPENDENT DUE DILIGENCE AND DECISION-MAKING. Each of the
Consenting Holders hereby confirms that its decision to execute this Agreement
has been based upon its independent investigation of the operations, businesses,
financial and other conditions and prospects of Debtor. To the extent any
materials or information have been furnished to it by Debtor, the undersigned
hereby acknowledges that they have been provided for informational purposes
only, without any representation or warranty.
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Section 21. RESERVATION OF RIGHTS. This Agreement and the Term Sheet
are part of a proposed settlement of a dispute among the parties hereto. Except
as expressly provided in this Agreement and the Term Sheet: (a) nothing herein
is intended to, or does, in any manner waive, limit, impair or restrict the
ability of the Company and each Consenting Holder to protect and preserve its
rights, remedies and interests, including without limitation, its claims against
the other; and (b) nothing contained herein effects a modification of the rights
of the Company or the Consenting Holders, unless and until the Plan is confirmed
and the Financial Restructuring becomes effective. If the transactions
contemplated herein are not consummated, or if this Agreement is terminated for
any reason, the parties hereto fully reserve any and all of their rights.
Pursuant to Federal Rule of Evidence 408 and any applicable state rules of
evidence, this Agreement and all negotiations relating thereto shall not be
admissible into evidence in any proceeding other than a proceeding to enforce
its terms.
Section 22. HEADINGS. The headings of the sections, paragraphs and
subsections of this Agreement are inserted for convenience only and shall not
affect the interpretation hereof.
Section 23. PRIOR NEGOTIATIONS. This Agreement, the Term Sheet and the
Reorganization Documents supersede all prior negotiations, and documents
reflecting such prior negotiations among the parties hereto with respect to the
subject matter hereof.
Section 24. REPRESENTATION BY COUNSEL. Each party hereto acknowledges
that it has been represented by counsel in connection with this Agreement and
the transactions contemplated by this Agreement. Accordingly, any rule of law or
any legal decision that would provide any party hereto with a defense to the
enforcement of the terms of this Agreement against such party based upon lack of
legal counsel shall have no application and is expressly waived.
Section 25. SEVERAL, NOT JOINT, OBLIGATIONS. The agreements,
representations and obligations of the Consenting Holders under this Agreement
and the Term Sheet are, in all respects, several and not joint.
Section 26. AGREEMENT. Delivery of an executed counterpart of the
signature pages to this Agreement by facsimile transmission shall be effective
as delivery of a manually executed counterpart thereof.
Section 27. CONSIDERATION. It is hereby acknowledged by the Company and
each of the Consenting Holders that no consideration shall be due or paid to the
Consenting Holders for their agreement to vote to accept the Plan subject to and
in accordance with the terms and conditions of this Agreement, other than the
provisions hereof and Company's agreement to use its best efforts to obtain
approval of the Disclosure Statement and to confirm the Plan in accordance with
the terms and conditions of this Agreement.
Section 28. NO THIRD PARTY BENEFICIARIES. This Agreement shall be
solely for the benefit of the parties hereto and, solely with respect to Section
4 and Section 10 hereof, the Equity Released Parties, including their permitted
assigns, and no other person or entity shall be
11
a third party beneficiary hereof. Nothing in this Agreement, express or implied,
shall give to any party or entity other than the parties any benefit or any
legal or equitable right, remedy or claim under this Agreement.
Section 29. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind
and inure to the benefit of the parties hereto and their respective successors,
permitted assigns, heirs, executors, administrators and representatives.
Section 30. NOTICES. (1) All notices hereunder to be served to the
Company shall be deemed given if in writing and delivered or sent by telecopy,
courier or by registered or certified mail (return receipt requested) to the
following addresses or telecopier numbers (or at such other addresses or
telecopier numbers as shall be specified by like notice:
Dade Behring Holdings, Inc.
0000 Xxxxxxxxx Xx.
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx, Esq.
General Counsel
Fax: (000) 000-0000
with copies to:
Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X.X. Xxxxxxxxxx, P.C.
Xxxx Xxxxxxxxxxx, Esq.
Fax: (000) 000-0000
(2) All notices hereunder to be served to a Consenting Holder shall be
deemed given if in writing and delivered or sent by telecopy, courier or by
registered or certified mail to the address for such Consenting Holder set forth
above its signature hereto (or at such other addresses or telecopier numbers as
shall be specified by like notice.
(3) All notices to any party hereunder shall also be copied to:
12
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
Xxxxxxxx, Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. XxXxxxxx, Esq.
Fax: (000) 000-0000
Xxxxx Xxxxx L.L.P.
The Warner Building
0000 Xxxxxxxxxxxx Xxxxxx XX
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
Section 31. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall, collectively and separately, constitute
one and the same agreement.
13
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
DADE BEHRING HOLDINGS, INC. DADE BEHRING INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------- ----------------------------
Its: Secretary & General Counsel Its: VP, General Counsel & Secretary
----------------------------- -------------------------------
DADE MICROSCAN INC. DADE FINANCE INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------- ----------------------------
Its: Secretary & General Counsel Its: Secretary & General Counsel
----------------------------- ----------------------------
SYVA DIAGNOSTICS HOLDING CO. SYVA COMPANY
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------- ----------------------------
Its: Secretary & General Counsel Its: Secretary & General Counsel
----------------------------- ----------------------------
CHIMERA RESEARCH AND CHEMICAL, INC. SYVA CHILDCARE INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------- ----------------------------
Its: Secretary & General Counsel Its: Secretary & General Counsel
----------------------------- ----------------------------
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
HOLDER OF RELEVANT CLAIM:
Name of Holder:
HOECHST AG
By: /s/ ILLEGIBLE /s/ ILLEGIBLE
-----------------------------
Its:
-----------------------------
Aggregate Principal Amount of Old Notes: $39,650,000
----------
Aggregate Principal Amount of
Existing Senior Debt: $
---------
Total Amount of Relevant Claim: $39,650,000
----------
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) 25,857,700 - Common
2,512,544 - Class L-B
---------
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) 48.66%
---------
Address for Notices
[ ]
Xxxxxxx XX
x/x Xxxxxxx Xxxxxxx
00000 Xxxxxxxxxx
Xxxxx 0
Xxxxxx
Xxxxxxxx X. Xxxxx
Xxxxx Xxxxx L.L.P.
0000 Xxxxxxxxxxxx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000-0000
HOLDER OF RELEVANT CLAIM:
Name of Holder:
XXXXXXXX STREET PARTNERS
By: /s/ ILLEGIBLE
-----------------------------
Its: A General Partner
-----------------------------
Aggregate Principal Amount of Old Notes: $186,000
---------
Aggregate Principal Amount of
Existing Senior Debt: $0.00
---------
Total Amount of Relevant Claim: $186,000
---------
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) 133,423.22
----------
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) 0.002%
---------
Address for Notices
[ ]
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxx XX 00000
Attention: Xxxxxxx Xxxxxxxxx
HOLDER OF RELEVANT CLAIM:
Name of Holder:
BCIP ASSOCIATES
By: Xxxx Capital Investors, LLC
-----------------------------
Its: Management Committee
-----------------------------
By: /s/ ILLEGIBLE
-----------------------------
Name: -----------------------------
Title: Managing Director
-----------------------------
Aggregate Principal Amount of Old Notes: $1,951,000
----------
Aggregate Principal Amount of
Existing Senior Debt: $
---------
Total Amount of Relevant Claim: $1,951,000
----------
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only)
---------
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.)
---------
Address for Notices
[ ]
c/o Bain Capital, LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
with a copy to:
Xxxxxxx X. XxXxxxxx
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
HOLDER OF RELEVANT CLAIM:
Name of Holder:
BCIP TRUST ASSOCIATES, L.P.
By: Xxxx Capital Investors, LLC
-----------------------------
Its: Management Committee
-----------------------------
By: /s/ ILLEGIBLE
-----------------------------
Name: -----------------------------
Title: Managing Director
-----------------------------
Aggregate Principal Amount of Old Notes: $ --
---------
Aggregate Principal Amount of
Existing Senior Debt: $ --
---------
Total Amount of Relevant Claim: $ --
---------
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only)
---------
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.)
---------
Address for Notices
[ ]
c/o Bain Capital, LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
with a copy to:
Xxxxxxx X. XxXxxxxx
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
HOLDER OF RELEVANT CLAIM:
Name of Holder:
XXXX CAPITAL FUND IV, L.P.
By: Xxxx Capital Partners IV, L.P.
-----------------------------
Its: General Partner
-----------------------------
By: Xxxx Capital Investors, LLC
-----------------------------
Its: Managing Partner
-----------------------------
By: /s/ ILLEGIBLE
-----------------------------
Name: -----------------------------
Its: Managing Director
-----------------------------
Aggregate Principal Amount of Old Notes: $7,738,000
---------
Aggregate Principal Amount of
Existing Senior Debt: $ --
---------
Total Amount of Relevant Claim: $7,738,000
---------
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only)
---------
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.)
---------
Address for Notices
[ ]
c/o Bain Capital, LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
with a copy to:
Xxxxxxx X. XxXxxxxx
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder:
XXXX CAPITAL FUND IV-B, L.P.
By: Xxxx Capital Partners IV, L.P.,
its general partner
By: Xxxx Capital Investors, LLC,
its general partner
By: /s/ [ILLEGIBLE]
-----------------------------
Name:
Title: Managing Director
Aggregate Principal Amount of Old Notes: $ 8,861,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ 8,861,000
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing Common
Stock on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
c/o Bain Capital, LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
With a copy to:
Xxxxxxx X. XxXxxxxx
Xxxxx & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
SIGNATURE PAGES TO
LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder:
GS-Dade, LLC
By: The Xxxxxxx Sachs Group, Inc., its managing member
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Its: Xxxx X. Xxxxxx, Attorney-in-Fact
----------------------------------
Aggregate Principal Amount of Old Notes: $ 9,269,000
Aggregate Principal Amount of
Existing Senior Debt: $_______________
Total Amount of Relevant Claim: $_______________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
c/o Goldman, Xxxxx Capital Partners, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
SIGNATURE PAGES TO
LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder:
Xxxxx Xxxxxx Xxxx 0000, X.X.
By: Stone Street 1994, L.L.C., its general partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Its: Xxxx X. Xxxxxx, V.P.
-----------------------------
Aggregate Principal Amount of Old Notes: $___________
Aggregate Principal Amount of
Existing Senior Debt: $___________
Total Amount of Relevant Claim: $___________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) 325,862.00
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) 0.56%
Address for Notices
C/O Goldman, Xxxxx Capital Partners, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
SIGNATURE PAGES TO
LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder:
Xxxxxx Xxxxxx Xxxx 0000, X.X.
By: Stone Street 1994, LLC, its general partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Its: Xxxx X. Xxxxxx, V.P.
-----------------------------
Aggregate Principal Amount of Old Notes: $___________
Aggregate Principal Amount of
Existing Senior Debt: $___________
Total Amount of Relevant Claim: $___________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) 341,204.56
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) 0.59%
Address for Notices
C/o Goldman, Xxxxx Capital Partners, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
SIGNATURE PAGES TO
LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder:
GS Capital Partners, L.P.
By: GS Advisors, LLC, its general partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Its: Xxxx X. Xxxxxx, V.P.
-----------------------------
Aggregate Principal Amount of Old Notes: $____________
Aggregate Principal Amount of
Existing Senior Debt: $____________
Total Amount of Relevant Claim: $____________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) 5,959,128.88
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) 10.22%
Address for Notices
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
SIGNATURE PAGES TO
LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: SILVER OAK CAPITAL, LLC
By: /s/ [ILLEGIBLE]
-----------------------------
Its:
-----------------------------
Aggregate Principal Amount of Old Notes: $ 51,837,000.00
Aggregate Principal Amount of
Existing Senior Debt: $ 48,994,020.22
Total Amount of Relevant Claim: $ 100,831,020.22
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
[ ]
SIGNATURE PAGES TO
LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: AG CAPITAL FUNDING PARTNERS, L.P.
BY: XXXXXX, XXXXXX & CO., L.P.,
AS INVESTMENT ADVISOR
By: /s/ [ILLEGIBLE]
-----------------------------
Its:
-----------------------------
Aggregate Principal Amount of Old Notes: $ 13,973,000.00
Aggregate Principal Amount of
Existing Senior Debt: $ 9,046,888.37
Total Amount of Relevant Claim: $ 23,019,888.37
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
[ ]
SIGNATURE PAGES TO
LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder:
Wellington Management Company, LLP
as Investment Advisor on behalf of certain client accounts
By: /s/ [ILLEGIBLE]
------------------------
Its: Vice President
------------------------
Aggregate Principal Amount of Old Notes: $ 1,810,000
Aggregate Principal Amount of
Existing Senior Debt: $ 0
Total Amount of Relevant Claim: $ 1,810,000
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) 0
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) 0
Address for Notices
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Oaktree Capital Management, LLC
as agent and on behalf of certain
funds and accounts
By: /s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
-----------------------------------------
Its: Managing Director Vice President, Legal
-----------------------------------------
Aggregate Principal Amount of Old Notes: $ 6,510,000
Aggregate Principal Amount of
Existing Senior Debt: $ -
Total Amount of Relevant Claim: $ 6,510,000
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) -
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) -
Address for Notices
000 X. Xxxxx Xxx.
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: SENECA CAPITAL LP
By: /s/ [ILLEGIBLE]
-----------------------------------
Its: XXXXXXX XXXXXX GENERAL PARTNER
-----------------------------------
Aggregate Principal Amount of Old Notes: $ 25,015,000
Aggregate Principal Amount of
Existing Senior Debt: $ 92,678,145.42
Total Amount of Relevant Claim: $ 117,693,145.42
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
000 XXXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PARA PARTNERS L.P.
By: /s/ Xxxxxx Xxx
----------------------------------------------
Its: CFO - BOSPHORUS PARTNERS LLC (GENERAL PARTNER)
----------------------------------------------
Aggregate Principal Amount of Old Notes: $ 2,194,000
Aggregate Principal Amount of
Existing Senior Debt: $ 12,140,900
Total Amount of Relevant Claim: $ 14,354,900
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
000 XXXXXXX XXXXXX
0XX XXXXX
XXX XXXX, X.X. 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PARA INTERNATIONAL FUND LTD.
By: /s/ Xxxxxx Xxx
-------------------------------------------
Its: CFO - PARA ADVISORS INC. (ATTORNEY-IN-FACT)
-------------------------------------------
Aggregate Principal Amount of Old Notes: $ 1,490,000
Aggregate Principal Amount of
Existing Senior Debt: $ 7,923,000
Total Amount of Relevant Claim: $ 9,413,000
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
C/O PARA ADVISORS INC
000 XXXXXXX XXXXXX
8TH FLOOR
NEW YORK, N.Y. 10022
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PARA INVESTORS L.P.
By: /s/ Xxxxxx Xxx
----------------------------------------------
Its: CFO - BOSPHORUS PARTNERS LLC (GENERAL PARTNER)
----------------------------------------------
Aggregate Principal Amount of Old Notes: $ 582,000
Aggregate Principal Amount of
Existing Senior Debt: $ 3,247,800
Total Amount of Relevant Claim: $ 3,829,800
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
000 XXXXXXX XXX
8TH FLOOR
NEW YORK, N.Y. 10022
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: ALPHA US SUB FUND V LLC.
By: /s/ Xxxxxx Xxx
----------------------------------
Its: CFO - PARA ADVISORS INC (MANAGER)
----------------------------------
Aggregate Principal Amount of Old Notes: $ 97,000
Aggregate Principal Amount of
Existing Senior Debt: $ 651,400
Total Amount of Relevant Claim: $ 748,400
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
C/O PARA ADVISORS INC.
000 XXXXXXX XXXXXX
8TH FLOOR
NEW YORK, N.Y. 10022
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: LXYOR MASTER FUND
By: /s/ Xxxxxx Xxx
---------------------------------
Its: CFO - PARA ADVISORS INC (MANAGER)
---------------------------------
Aggregate Principal Amount of Old Notes: $ 139,000
Aggregate Principal Amount of
Existing Senior Debt: $ 0
Total Amount of Relevant Claim: $ 139,000
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
C/O PARA ADVISORS INC
000 XXXXXXX XXXXXX
8TH FLOOR
NEW YORK, N.Y. 10022
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PARIBAS LIQUID HEDGE FUND
By: /s/ Xxxxxx Xxx
----------------------------------
Its: CFO - PARA ADVISORS INC (MANAGER)
----------------------------------
Aggregate Principal Amount of Old Notes: $ 51,000
Aggregate Principal Amount of
Existing Senior Debt: $ 0
Total Amount of Relevant Claim $ 51,000
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
C/O PARA ADVISORS INC
000 XXXXXXX XXX.
8TH FLOOR
NEW YORK, N.Y. 10022
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: HFR ED OPPORTUNITY MASTER TRUST
By: /s/ Xxxxxx Xxx
----------------------------------
Its: CFO - PARA ADVISORS INC (MANAGER)
----------------------------------
Aggregate Principal Amount of Old Notes: $ 47,000
Aggregate Principal Amount of
Existing Senior Debt: $ 0
Total Amount of Relevant Claim: $ 47,000
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
C/O PARA ADVISORS INC
000 XXXXXXX XXXXXX
8TH FLOOR
NEW YORK, N.Y. 10022
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Bedford Falls Investor, L.P.
By: /s/ [ILLEGIBLE]
-----------------------------------------------------------------------
Its: President of Metropoliton Capital Advisors, Inc., the general partner
of the general partner.
-----------------------------------------------------------------------
Aggregate Principal Amount of Old Notes: $ 700,000
Aggregate Principal Amount of
Existing Senior Debt: $ 5,145,834
Total Amount of Relevant Claim: $ 5,845,834
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
Bedford Falls Investors, L.P.
Attention: Xxxxx Xxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
E-Mail: xxxxxx@xxxxxxxx.xxx
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Metropoliton Capital Advisors International Limited
By: /s/ [ILLEGIBLE]
--------------------------------------------------------------
Its: President of the General Partner of the Investment Manager,
Metropoliton Capital III, Inc.
--------------------------------------------------------------
Aggregate Principal Amount of Old Notes: $ 925,000
Aggregate Principal Amount of
Existing Senior Debt: $_______________
Total Amount of Relevant Claim: $ 925,000
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
Metropoliton Capital Advisors International Limited
Attention: Xxxxx Xxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
E-Mail: xxxxxx@xxxxxxxx.xxx
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: York Capital
By: /s/ [ILLEGIBLE]
----------------------------------
Its: Managing Director
----------------------------------
Aggregate Principal Amount of Old Notes: $ 25,215,000
Aggregate Principal Amount of
Existing Senior Debt: $_______________
Total Amount of Relevant Claim: $_______________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
York Capital Management
000 Xxxx Xxx 0xx Xx.
Xxx Xxxx, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: P&S CAPITAL PARTNERS LLC
ON BEHALF OF XXXXXX CAPITAL
By: /s/ [ILLEGIBLE]
----------------------------------
Its: MANAGING MEMBER
----------------------------------
Aggregate Principal Amount of Old Notes: $ 25,525,000
Aggregate Principal Amount of
Existing Senior Debt: $ [ILLEGIBLE]
Total Amount of Relevant Claim: $ [ILLEGIBLE]
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) --
Address for Notices
XXXXXX CAPITAL
000 XXXXXXX XXXXXX
00XX XXXXX
XXX XXXX, XX 00000
ATTN: XXXX XXXXXXX
PHONE: (000) 000-0000
FAX: (000) 000-0000
E-MAIL: xxxxxxx@xxxxxxxxx.xxx
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PSAM Allegro Partners, LP
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Its: Xxxxx Xxxxxxxxxx, CFO
----------------------------------
Aggregate Principal Amount of Old Notes: $ 596,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PSAM GPS Fund, Ltd.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Its: Xxxxx Xxxxxxxxxx, CFO
----------------------------------
Aggregate Principal Amount of Old Notes: $ 364,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PSAM WorldArb Partners, L.P.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Its: Xxxxx Xxxxxxxxxx, CFO
----------------------------
Aggregate Principal Amount of Old Notes: $ 814,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PSAM GPS Minneapolis
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Its: Xxxxx Xxxxxxxxxx, CFO
----------------------------
Aggregate Principal Amount of Old Notes: $ 180,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: One Wall Street Partners, LP
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Its: Xxxxx Xxxxxxxxxx, CFO
----------------------------
Aggregate Principal Amount of Old Notes: $ 35,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PSAM Panorama Fund, Ltd.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Its: Xxxxx Xxxxxxxxxx, CFO
----------------------------
Aggregate Principal Amount of Old Notes: $ 3,048,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Rumpere Capital Trading Partners, Ltd.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Its: Xxxxx Xxxxxxxxxx, CFO
----------------------------
Aggregate Principal Amount of Old Notes: $ 640,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Spartan Partners, LP
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Its: Xxxxx Xxxxxxxxxx, CFO
----------------------------
Aggregate Principal Amount of Old Notes: $ 960,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PSAM GPS Texas LLC
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Its: Xxxxx Xxxxxxxxxx, CFO
----------------------------
Aggregate Principal Amount of Old Notes: $ 126,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PSAM World Arb Fund Ltd.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------
Its: Xxxxx Xxxxxxxxxx, CFO
----------------------------
Aggregate Principal Amount of Old Notes: $ 1,153,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: West Bay International Co.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------
Its: Xxxxx Xxxxxxxxxx, CFO
----------------------
Aggregate Principal Amount of Old Notes: $ 758,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: WSCI Limited Partnership
By: /s/ Xxxxx Xxxxxxxxxx
---------------------
Its: Xxxxx Xxxxxxxxxx, CFO
---------------------
Aggregate Principal Amount of Old Notes: $ 1,326,000
Aggregate Principal Amount of
Existing Senior Debt: $ --
Total Amount of Relevant Claim: $ --
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) --
Address for Notices
X. XXXXXXXXXX ASST. MGMT. LLC
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Xxxxxxx Capital Management XX XX
By: [ILLEGIBLE]
By: Xxxxxxx Inc its: GP
By: /s/ [ILLEGIBLE]
---------------
Its: [ILLEGIBLE] President
----------------------
Aggregate Principal Amount of Old Notes: $ 13,612,500
Aggregate Principal Amount of
Existing Senior Debt: $_______________
Total Amount of Relevant Claim $ 13,612,500
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx XX 00000
Attn: Xxxxx Xxxxxxx
Dev Xxxxxx
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Xxxxxxx International Fund Ltd.
By: Xxxxxxx LLC its: trading advisors
By: /s/ [ILLEGIBLE]
----------------
Its: [ILLEGIBLE] Managing Member
---------------------------
Aggregate Principal Amount of Old Notes: $ 13,782,500
Aggregate Principal Amount of
Existing Senior Debt: $_______________
Total Amount of Relevant Claim: $ 13,782,500
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx XX 00000
Attn: Xxxxx Xxxxxxx
Dev Xxxxxx
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Deutsche Bank Trust Company Americas
By: /s/ Xxxxx X. Xxxxxxxx [ILLEGIBLE]
----------------------------------
Its: Xxxxx X. Xxxxxxxx Vice President
----------------------------------
Aggregate Principal Amount of Old Notes: $_______________
Aggregate Principal Amount of
Existing Senior Debt: $ 110,172,382.55
Total Amount of Relevant Claim: $ 110,172,382.55
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
Attn: Xxxxx Xxxxxxxx
Deutsche Bank
MS. NYC01-0715
00 Xxxx 00 Xxxxxx
Xxx Xxxx, XX
00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: AG CAPITAL FUNDING PARTNERS, LP.
BY: XXXXXX, XXXXXX & CO., LP.,
AS INVESTMENT ADVISOR
By: /s/ [ILLEGIBLE]
---------------
Its:
---------------
Aggregate Principal Amount of Old Notes: $ 13,973,000.00
Aggregate Principal Amount of
Existing Senior Debt: $ 9,046,888.37
Total Amount of Relevant Claim: $ 23,019,888.37
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
[ ]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: ALPHA US SUB FUND V LLC
PARA ADVISORS INC. (MANAGER)
By: /s/ Xxxxxx Xxx
--------------------------------
Its: CFO-PARA ADVISORS INC (MANAGER)
--------------------------------
Aggregate Principal Amount of Old Notes: $____________
Aggregate Principal Amount of
Existing Senior Debt: $ 459,769.57
Total Amount of Relevant Claim: $ 459,769.57
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _____________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _____________
Address for Notices
C/o PARA ADVISORS INC
000 XXXXXXX XXXXXX
8TH FLOOR
NEW YORK, N.Y. 10022
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: KZH CypressTree-I LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
---------------------------------------
Its: AUTHORIZED AGENT
---------------------------------------
Aggregate Principal Amount of Old Notes: $ N/A
Aggregate Principal Amount of
Existing Senior Debt: $ 11,100,955.04
Total Amount of Relevant Claim: $ 11,100,955.04
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) N/A
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) N/A
Address for Notices
KZH Cypress Tree-I LLC
c/o Xxxxxxxx Xxxxxx
JPMorgan Chase Bank
000 Xxxx 00xx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: KZH ING-2 LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
-------------------------
Its: AUTHORIZED AGENT
-------------------------
Aggregate Principal Amount of Old Notes: $ N/A
Aggregate Principal Amount of
Existing Senior Debt: $ 8,624,612.56
Total Amount of Relevant Claim: $ 8,624,612.56
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) N/A
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) N/A
Address for Notices
KZH ING-2 LLC
c/o Virginia Cooway
JPMorgan Chase Bank
000 Xxxx 00xx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: NORTHWOODS CAPITAL LIMITED
BY: XXXXXX, XXXXXX & CO., L.P.,
AS COLLATERAL MANAGER
By: /s/ [ILLEGIBLE]
--------------------------
Its:
--------------------------
Aggregate Principal Amount of Old Notes: $_______________
Aggregate Principal Amount of
Existing Senior Debt: $ 3,538,281.??
Total Amount of Relevant Claim: $_______________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
[ ]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: NORTHWOODS CAPITAL II, LIMITED
BY: XXXXXX, XXXXXX & CO., L.P.,
AS COLLATERAL MANAGER
By: /s/ [ILLEGIBLE]
--------------------------
Its:
--------------------------
Aggregate Principal Amount of Old Notes: $_______________
Aggregate Principal Amount of
Existing Senior Debt: $ 2,394,626.[ILLEGIBLE]
Total Amount of Relevant Claim: $_______________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
[ ]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: SILVER OAK CAPITAL, LLC.
By: /s/ [ILLEGIBLE]
--------------------------
Its:
--------------------------
Aggregate Principal Amount of Old Notes: $ 51,837,000.00
Aggregate Principal Amount of
Existing Senior Debt: $ 48,994,020.22
Total Amount of Relevant Claim: $ 100,831,020.22
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
[ ]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: AVENUE SPECIAL SITUATIONS FUND II
By: /s/ [ILLEGIBLE]
--------------------------
Its:
--------------------------
Aggregate Principal Amount of Old Notes: $ --
Aggregate Principal Amount of
Existing Senior Debt: $ 35,394,710.72
Total Amount of Relevant Claim: $ 35,394,710.72
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) --
Address for Notices
[ ]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder:
By: /s/ [ILLEGIBLE]
--------------------------
Its: Bear Xxxxxxx & Co. Inc.
--------------------------
Aggregate Principal Amount of Old Notes: $ --
Aggregate Principal Amount of
Existing Senior Debt: $ 15,520,184 [ILLEGIBLE]
Total Amount of Relevant Claim: $____________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) --
Address for Notices
000 XXXXXXX XXX.
0xx Xxxxx,
XX, XX 00000
ATTN: [ILLEGIBLE]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: BedFord Falls Investors, L.P.
By: /s/ [ILLEGIBLE]
--------------------------
Its: President, Metropoliton Capital Advisors, Inc., the general partner of
the general partner.
----------------------------------------------------------------------
Aggregate Principal Amount of Old Notes: $ 700,000
Aggregate Principal Amount of
Existing Senior Debt: $ 5,145,834
Total Amount of Relevant Claim: $ 5,845,834
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ___________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ___________
Address for Notices
BedFord Falls Investors, L.P.
Attention: Xxxxx Xxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
E-Mail: xxxxxx@xxxxxxxx.xxx
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Blue Ridge L.P.
By: /s/ [ILLEGIBLE]
--------------------------
Its: Managing Director
--------------------------
Aggregate Principal Amount of Old Notes: $______________
Aggregate Principal Amount of
Existing Senior Debt: $ 29,687,977.41
Total Amount of Relevant Claim: $______________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
[ ]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: BNP Paribas
By: /s/ [ILLEGIBLE]
------------------------------------
Its: [ILLEGIBLE] MANAGING DIRECTOR
------------------------------------
Aggregate Principal Amount of Old Notes: $_______________
Aggregate Principal Amount of
Existing Senior Debt: $ 3,864,756
Total Amount of Relevant Claim: $ 3,864,756
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
000 0xx Xxx, 0xx Xxxxx
XX, XX 00000
Attn: Xxxx [ILLEGIBLE]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: XXXXXXXXX & CO., L.P.
By: Xxxxxxxxx Partners, L.P.
By: Xxxxxxxxx Partners Inc.
By: /s/ Xxxxxx Xxxx
------------------------------
Its: V.P. Vice President
------------------------------
By: /s/ Xxxxxx Xxxx
------------------------------
Name: Xxxxxx Xxxx
----------------------------
Title: Vice President
----------------------------
Aggregate Principal Amount of Old Notes: $______________
Aggregate Principal Amount of
Existing Senior Debt: $ 19,700,519.63
Total Amount of Relevant Claim: $ 19,700,519.63
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _______________
Percentage of Shares of Existing Common
Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
XXXXXXXXX & CO., L.P.
[ILLEGIBLE] Xxxxxxx Xxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: FERNWOOD ASSOCIATES L.P.
By: /s/ XXXXX X. [ILLEGIBLE]
-------------------------------
Its: GENERAL PARTNER
------------------------------
Aggregate Principal Amount of Old Notes: $ 0
Aggregate Principal Amount of
Existing Senior Debt: $ 14,522,002.00
Total Amount of Relevant Claim: $ 14,522,002.00
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
CREDIT CONTACT:
Xxx X. Xxxxxx
Intermarket Corporation
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000(p)
(000) 000-0000(f)
ADMINISTRATIVE CONTACT:
Xxxxx X. Xxxx
Intermarket Corporation
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000(p)
(000) 000-0000(f)
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder:
By: Xxxxxxx Xxxxx Credit Partners LP
----------------------------------
Its:
----------------------------------
Aggregate Principal Amount of Old Notes: $ N/A
Aggregate Principal Amount of
Existing Senior Debt: $ 41,440,082.43
Total Amount of Relevant Claim: $ N/A
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) N/A
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) N/A
Address for Notices
Primary E mail: xxx.xxxx@xx.xxx
c/o Goldman Sachs & Co.
00 Xxxxx Xx. - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax 000 000 0000
Attn: Xxxxxx Xxxxx
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: P&S CAPITAL PARTNERS LLC
ON BEHALF OF XXXXXX CAPITAL
By: /s/ [ILLEGIBLE]
-----------------------------
Its: MANAGING MEMBER
-----------------------------
Aggregate Principal Amount of Old Notes: $ 25,525,000
Aggregate Principal Amount of
Existing Senior Debt: $ 31,762,507.26
Total Amount of Relevant Claim: $ 57,287,507.26
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) --
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) --
Address for Notices
XXXXXX CAPITAL
000 XXXXXXX XXXXXX
00XX XXXXX
XXX XXXX, XX 00000
ATTN: XXXX XXXXXXX
PHONE: (000) 000-0000
FAX: (000) 000-0000
E-MAIL: xxxxxxx@xxxxxxxxx.xxx
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Halcyon Restructuring Fund, L.P.
By: Halcyon Xxxx X. Slitka Management Co. LLC.
Its MANAGING GENERAL PARTNER.
By: /s/ Xxxxx Xxxxxxxxxxx
--------------------------
Its: Chief Financial Officer
--------------------------
Aggregate Principal Amount of Old Notes: $______________
Aggregate Principal Amount of
Existing Senior Debt: $ 77,089,957.53
Total Amount of Relevant Claim: $ 77,089,957.53
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
XXXXX XXXXXXX
XXXXX XXXXX
XXX XXXXXXXXXXX
HALCYON PARTNERSHIPS
000 XXXXXXX XXXXXX
XXX XXXX, XX 00000.
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM: HARVEST SENIOR INCOME PARTNERS
by: HARVEST INCOME ADVISORS, L.L.C., as
Investment Manager
Name of Holder:
By: /s/ [ILLEGIBLE]
--------------------------
Its:
--------------------------
Aggregate Principal Amount of Old Notes: $______________
Aggregate Principal Amount of
Existing Senior Debt: $ 1,484,450.89
Total Amount of Relevant Claim: $ 1,484,450.89
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
HARVEST MANAGEMENT LLC
000 XXXXXXX XXXXXX
00XX XXXXX
XXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: ING Capital LLC
as agent for Middenbank Curacao, N.V.
By: /s/ Xxxxxxx Xxxx
-----------------------------
Its: Vice President
-----------------------------
Aggregate Principal Amount of Old Notes: $______________
Aggregate Principal Amount of
Existing Senior Debt: $ 4,875,897.02
Total Amount of Relevant Claim: $ 4,875,897.02
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
0000 Xxxxxx xx Xxxxxxxx - 0xx XX
Xxx Xxxx, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: 02 Master Fund Ltd.
By: 02 Management LLC
as Investment Manager
By: /s/ [ILLEGIBLE]
----------------------
Its: Senior Managing Member
----------------------
Aggregate Principal Amount of Old Notes: $ 0
Aggregate Principal Amount of
Existing Senior Debt: $ 205,024,594.30*
Total Amount of Relevant Claim: $ 205,024,594.30*
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) 0
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) 0
Address for Notices
c/o 02 Management, LLC
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
* Descrepency due to foreign exchange rate and other misc. items.
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: 02F Credit Opportunities Master Fund, Ltd.
By: 02F Management, LP
as Investment Manager
By: /s/ [ILLEGIBLE]
-----------------------
Its: Senior Managing Members
-----------------------
Aggregate Principal Amount of Old Notes: $ 0
Aggregate Principal Amount of
Existing Senior Debt: $ 27,341,276.52*
Total Amount of Relevant Claim: $ 27,341,276.52*
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) 0
Percentage of Shares of Existing
Common Stock on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) 0
Address for Notices
c/o 02F Management, LP
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
* Descrepency due to foreign exchange rate and other misc. items.
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: 02F Credit Opportunities Master Fund II, Ltd.
By: 02F Management, LP
as Investment Manager
By: /s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
-----------------------
Its: Senior Managing Members
-----------------------
Aggregate Principal Amount of Old Notes: $ 0
Aggregate Principal Amount of
Existing Senior Debt: $ 38,502,881.48*
Total Amount of Relevant Claim: $ 38,502,881.48*
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) 0
Percentage of Shares of Existing
Common Stock on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) 0
Address for Notices
c/o 02F Management, LP
0 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
* descrepency due to foreign exchange rate and other misc. items.
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PARA INTERNATIONAL FUND LTD.
By: /s/ Xxxxxx Xxx
----------------------------------------
Its: CFO-PARA ADVISORS INC (ATTORNEY-IN-FACT)
----------------------------------------
Aggregate Principal Amount of Old Notes: $_______________
Aggregate Principal Amount of
Existing Senior Debt: $ 6,336,034.75 (BANK DEBT)
Total Amount of Relevant Claim: $ 6,336,034.75
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing Common Stock
on fully diluted basis (for
Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
c/o PARA ADVISORS INC
000 XXXXXXX XXX.
8TH FLOOR
NEW YORK, N.Y. 10022
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PARA INVESTORS L.P.
By: /s/ Xxxxxx Xxx
-----------------------------
Its: CFO - BOSPHORUS PARTNERS LLC (GENERAL PARTNER)
-----------------------------------------------
Aggregate Principal Amount of Old Notes: $______________
Aggregate Principal Amount of
Existing Senior Debt: $ 1,843,495.39 (BANK DEBT)
Total Amount of Relevant Claim: $ 1,843,495.39
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
000 XXXXXXX XXX
0XX XXXXX
XXX XXXX, X.X.00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: PARA PARTNERS L.P.
By: /s/ Xxxxxx Xxx
-----------------------------
Its: CFO - BOSPHORUS PARTNERS LLC (GENERAL PARTNER)
-----------------------------------------------
Aggregate Principal Amount of Old Notes: $______________
Aggregate Principal Amount of
Existing Senior Debt: $ 6,944,041.06 (BANK DEBT)
Total Amount of Relevant Claim: $ 6,944,041.06
Number of Shares of Existing Common
Stock (for Consenting Holders of Existing
Common Stock only) _______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
000 XXXXXXX XXXXXX
0XX XXXXX
XXX XXXX, X.X.00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Xxxxxxx Capital Management XX XX
By: [ILLEGIBLE]
By: Xxxxxxx Inc. Its: [ILLEGIBLE]
By: /s/ [ILLEGIBLE]
---------------------------------
Its: [ILLEGIBLE] President
---------------------------------
Aggregate Principal Amount of Old Notes: $______________
Aggregate Principal Amount of
Existing Senior Debt: $ 27,268,001.38
Total Amount of Relevant Claim: $______________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx XX 00000
Attn: Xxxxx Xxxxxxx
Dev Xxxxxx
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Xxxxxxx International Fund Ltd.
By: Xxxxxxx LLC its: trading advisors
By: /s/ [ILLEGIBLE]
----------------------------
Its: [ILLEGIBLE] Managing Member
----------------------------
Aggregate Principal Amount of Old Notes: $______________
Aggregate Principal Amount of
Existing Senior Debt: $ 27,268,001.36
Total Amount of Relevant Claim: $______________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx XX 00000
Attn: Xxxxx Xxxxxxx
Dev Xxxxxx
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: SENECA CAPITAL LP
By: /s/ [ILLEGIBLE]
----------------------------
Its: [ILLEGIBLE] GENERAL PARTNER
----------------------------
Aggregate Principal Amount of Old Notes: $ 25,015,000
Aggregate Principal Amount of
Existing Senior Debt: $ 92,678,145.42
Total Amount of Relevant Claim: $ 117,693,145.42
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ________________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ________________
Address for Notices
000 XXXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM: Xxxxx Xxx Floating Rate Limited Liability Company
Name of Holder: [ILLEGIBLE]
By: /s/ [ILLEGIBLE]
------------------------------------------
Its: Senior Vice President
------------------------------------------
Aggregate Principal Amount of Old Notes: $ 0
Aggregate Principal Amount of
Existing Senior Debt: $ 5,867,345.86
Total Amount of Relevant Claim: $ 5,867,345.86
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) 0
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) 0
Address for Notices
[ ]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM: Liberty - Xxxxx Xxx Advisor Floating Rate
Advantage Fund
by Xxxxx Xxx & Farnharn Incorporated, as Advisor
Name of Holder:
By: /s/ Xxxxx [ILLEGIBLE] Fellows
--------------------------------------
Its: Xxxxx [ILLEGIBLE] Fellows
Sr. Vice President & Portfolio Manager
--------------------------------------
Aggregate Principal Amount of Old Notes: $ 0
Aggregate Principal Amount of
Existing Senior Debt: $ 3,894,280.81
Total Amount of Relevant Claim: $ 3,894,280.81
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) 0
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) 0
Address for Notices
[ ]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Tenso? Endowment Limited
By: /s/ [ILLEGIBLE]
----------------------------
Its: Treasurer
----------------------------
Aggregate Principal Amount of Old Notes: $ ____________
Aggregate Principal Amount of
Existing Senior Debt: $ 2,932,476.24
Total Amount of Relevant Claim: $ 2,932,476.24
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) ______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) ______________
Address for Notices
M. Safra & Co
Attn: Xxxx Xxxxx
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: XXX XXXXXX
PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ XXXXX XXXXXXX
----------------------------
Its: MANAGER
----------------------------
Aggregate Principal Amount of Old Notes: $ N/A
Aggregate Principal Amount of
Existing Senior Debt: $ 17,449,001.94
Total Amount of Relevant Claim: $ 17,449,001.94
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) N/A
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) N/A
Address for Notices
[See Attached]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: XXX XXXXXX
SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ XXXXX XXXXXXX
----------------------------
Its: MANAGER
----------------------------
Aggregate Principal Amount of Old Notes: $ N/A
Aggregate Principal Amount of
Existing Senior Debt: $ 3,158,118.04
Total Amount of Relevant Claim: $ 3,158,118.04
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) N/A
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) N/A
Address for Notices
[See Attached]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ XXXXX XXXXXXX
----------------------------
Its: MANAGER
----------------------------
Aggregate Principal Amount of Old Notes: $ N/A
Aggregate Principal Amount of
Existing Senior Debt: $ 11,295,336.23
Total Amount of Relevant Claim: $ 11,295,336.23
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) N/A
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) N/A
Address for Notices
[See Attached]
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
EXECUTION DRAFT
SETTLEMENT COMMUNICATION GOVERNED
BY FEDERAL RULE OF EVIDENCE 408
HOLDER OF RELEVANT CLAIM:
Name of Holder: Xxxx X. Xxxxx
By: /s/ [ILLEGIBLE]
----------------------------
Its: Managing Director
----------------------------
Aggregate Principal Amount of Old Notes: $______________
Aggregate Principal Amount of
Existing Senior Debt: $ 51,889,441.28
Total Amount of Relevant Claim: $______________
Number of Shares of Existing Common
Stock (for Consenting Holders of
Existing Common Stock only) _______________
Percentage of Shares of Existing
Common Stock on fully diluted basis
(for Consenting Holders of Existing
Common Stock only.) _______________
Address for Notices
York Capital Management
000 Xxxx Xxx 0xx Xxxxx
Xxx Xxxx, XX 00000
SIGNATURE PAGES TO LOCK UP, VOTING AND CONSENT AGREEMENT
