1
Exhibit 10.31
THIS AGREEMENT IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES
OR A SOLICITATION OF ANY KIND. SUCH AN OFFER OR SOLICITATION
WILL BE MADE IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS.
EXCHANGE AND VOTING AGREEMENT
THIS EXCHANGE AND VOTING AGREEMENT (this "AGREEMENT") is dated as of
March 15, 2001, by and among Dairy Mart Convenience Stores, Inc., a Delaware
corporation ("DMC"), and the Noteholders of DMC listed on Schedule I attached
hereto (together with their respective successors, transferees and assigns, each
a "NOTEHOLDER" and, collectively, the "NOTEHOLDERS").
WHEREAS, in connection with a contemplated merger of DM Acquisition
Corp. ("ACQUIROR") with and into DMC, pursuant to an Agreement and Plan of
Merger dated the date hereof by and between DMC and the Acquiror (the "MERGER
AGREEMENT"), DMC desires to exchange those certain notes (the "NOTES") issued
pursuant to the Amended and Restated Indenture by and among DMC, its
subsidiaries listed therein and First Bank N.A., as Trustee, dated as of
December 1, 1995 (the "INDENTURE"), for a combination of cash, notes and
warrants, as described in the term sheet (the "TERM SHEET") attached hereto as
Exhibit A (the "EXCHANGE");
WHEREAS, in order to facilitate the Exchange, DMC intends to deliver,
in writing, to each holder of the Notes an Offer to Exchange and Consent
Solicitation (the "SOLICITATION") requesting it to tender its Notes in the
Exchange and consent to the amendment of the Indenture (the "AMENDED
INDENTURE"), all in accordance with the Term Sheet;
WHEREAS, in anticipation of the Solicitation, DMC desires to enter into
this Agreement (this Agreement is the "LOCKUP AGREEMENT" referred to in the Term
Sheet) with the Noteholders, representing in the aggregate approximately 70% of
the aggregate principal amount of the Notes, in order to, among other things,
obtain their agreement to tender their Notes in the Exchange and to agree on its
own behalf to effect the Exchange and to consummate the transactions
contemplated in the Merger Agreement;
WHEREAS, the Noteholders desire to enter into this Agreement and
confirm their agreement to tender their Notes in the Exchange and to consent to
the amendment of the Indenture in accordance with the Term Sheet; and
WHEREAS, each of DMC, the Noteholders, and Acquiror have reviewed, or
have had the opportunity to review, with the assistance of professional and
legal advisors of their choosing, the proposed terms of the transactions
contemplated in the Term Sheet (such transactions constituting, the
"RESTRUCTURING").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and intending to be legally bound, the parties hereby
agree as follows:
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ARTICLE 1.
THE EXCHANGE; AMENDED INDENTURE
Section 1.01 COVENANTS.
(a) VOTING AND SUPPORT OF EXCHANGE AND AMENDED INDENTURE. Each of the
Noteholders agrees that, if the terms of the documents implementing the
Restructuring are consistent with the Term Sheet and this Agreement has not been
terminated in accordance with its terms, it shall (i) tender its Notes in the
Exchange and vote to amend the Indenture as requested and to adopt the Amended
Indenture, (ii) refrain from, directly or indirectly, supporting or consenting
to any other restructuring, exchange, consent solicitation, sale or acquisition
relating to DMC or its affiliates, (iii) permit DMC to disclose the existence
and material terms of this Agreement in any solicitation or related document
without disclosing the identity or individual holding of any Noteholder, subject
to the provisions of Article 4 of this Agreement, unless required by law or by
order of a court of competent jurisdiction, and (iv) not instruct the Indenture
Trustee to take any action that is inconsistent with the terms and conditions of
this Agreement and, if the Indenture Trustee takes or threatens any such action,
direct the Indenture Trustee not to take such action.
(b) TRANSFER OF NOTES. Except as expressly provided herein, this
Agreement shall not in any way restrict the right or ability of any Noteholder
to sell, assign, pledge, transfer or otherwise dispose of any of the Notes it
holds or manages. Each Noteholder agrees that, during the term of this
Agreement, it shall not sell, assign, pledge, transfer or otherwise dispose of
any of the Notes it holds or manages unless and until the transferee delivers to
the transferor and DMC, prior to or contemporaneously with the effective date of
such transfer, a written agreement or acknowledgement whereby such transferee
has assumed all obligations of the transferor hereunder. In the event that other
holders of Notes subsequently join in the transactions contemplated by this
Agreement, such holders shall agree in writing at the time they join to be bound
by this Agreement in its entirety without revision, and also shall provide DMC
with the principal amount of the Notes held for inclusion on the respective
signature page.
(c) MUTUAL ASSURANCES. DMC and the Noteholders hereby covenant to one
another to use their reasonable best efforts, as expeditiously as possible and
during the term of this Agreement, to perform their respective obligations under
this Agreement and take all the actions necessary to consummate the
Restructuring. The parties further agree to take such other actions as are
reasonably necessary and appropriate to carry out the foregoing and to
effectuate the Exchange and evidence the Noteholders' vote including, but not
limited to, the execution and delivery of an exchange agreement, transmittal
letters, written consents or other documents containing customary terms and
provisions. DMC hereby covenants to use its reasonable best efforts to perform
its obligations, as expeditiously as possible, under the Merger Agreement and
take all actions necessary to consummate the transactions contemplated by the
Merger Agreement.
(d) PREPARATION OF RESTRUCTURING DOCUMENTS
(i) DMC shall prepare the solicitation documents
necessary to effectuate the Exchange, all
documentation related thereto or
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required thereunder, all of which shall be prepared
and contain provisions consistent with the Term
Sheet; and
(ii) The Noteholders shall prepare the new indenture
pursuant to which DMC will issue the New Senior
Secured Subordinated Notes to be received by
Noteholders in the Exchange consistent with the terms
thereof set forth in the Term Sheet.
ARTICLE 2.
TERMINATION EVENTS
Section 2.01 TERMINATION BY NOTEHOLDERS. This Agreement shall terminate and all
of the obligations of DMC and the Noteholders shall be of no further force or
effect in the event that any of the following occurs (each, a "TERMINATION
EVENT"):
(a) immediately and automatically upon the giving of written
notice of termination by those Noteholders holding a majority
of the Notes listed on Schedule I hereto to DMC if:
(i) DMC fails to make the scheduled March 15, 2001
interest payment to Noteholders in accordance with
the Indenture;
(ii) DMC fails to either (x) make the scheduled March 15,
2001 $20 million payment due under the Credit
Agreement dated as of December 28, 1999, as amended
(the "CREDIT AGREEMENT"), currently in effect between
DMC and Citizens Bank of Connecticut ("CITIZENS"), as
agent to the syndicate of banks named therein, or (y)
enter into a written amendment, waiver or forbearance
agreement with Citizens whereby Citizens agrees to
either (1) permanently waive or remove the condition
described in the preceding clause (x), or (2) forbear
from asserting any rights or remedies it may have in
connection with any default under the preceding
clause (x) under the Credit Agreement or otherwise
taking action against DMC with respect thereto at
least until August 31, 2001;
(iii) DMC fails to file its preliminary proxy materials
with the United States Securities and Exchange
Commission (the "SEC") by April 30, 2001;
(iv) DMC fails to close both the Exchange and the merger
of DMC and Acquiror, as contemplated in the Merger
Agreement and pursuant to the specific terms thereof
without material change, as well as all financing and
vendor transactions contemplated in the Merger
Agreement, and in each case do so by August 31, 2001;
or
(v) Prior to the closing of the Exchange and the merger
of DMC and Acquiror if (x) the projected total
liabilities of DMC immediately after such closing,
calculated in accordance with generally
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accepted accounting principles consistently applied,
as certified by a duly authorized officer of DMC and
of Acquiror to the Noteholders within 10 business
days prior to the termination date of the Exchange
announced in the Solicitation, exceeds $234,000,000
(which number shall be subject to upward adjustment
for changes or conditions affecting convenience store
chains generally or regionally or changes in the
financial markets or economic, tax or regulatory
conditions generally or regionally), (y) the E&Y
Report (as defined below) projects EBITDA for DMC for
the twelve months following such closing ("Pro Forma
EBITDA") to be less than $20,000,000, or (z) if the
E&Y Report is dated prior to thirty days before the
termination date of the Exchange announced in the
Solicitation, the Company and Acquiror shall fail to
deliver to the Noteholders within 10 business days
prior to such termination date, a certificate from a
duly authorized officer of DMC and of Acquiror that
Pro Forma EBITDA (assuming the methodology of the E&Y
Report) is $20,000,000 or greater. "E&Y Report" shall
mean the certain report being prepared by Ernst &
Young LLP in connection wit the merger of DMC and
Acquiror for the benefit of The Provident Bank, that
is to be delivered after the date hereof and prior to
closing; or
(b) five (5) business days after the Noteholders holding a
majority of the Notes listed on Schedule I hereto have
delivered written notice of termination to DMC that DMC has
materially breached an obligation of DMC under this Agreement,
and such failure remains uncured at the conclusion of such
period.
Section 2.02 TERMINATION BY DMC. This Agreement shall terminate and all
of the obligations of DMC and the Noteholders shall be of no further force or
effect in the event that any of the following occurs (each, also a "TERMINATION
EVENT").
(a) immediately and automatically upon the giving of written
notice of termination by DMC to counsel for the Noteholders if the fiduciary
duties of DMC, as reasonably determined by the Board of Directors of DMC upon
the advice of counsel, require the termination of this Agreement to implement
another restructuring transaction; and
(b) five (5) business days after DMC has delivered written
notice of termination to counsel for the Noteholders that this Agreement has
been materially breached by Noteholder(s) owning or controlling with the power
to vote 20% of the aggregate face amount of the Notes, and such failure remains
uncured at the conclusion of such period.
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ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
Section 3.01 (a) Each party represents and warrants to the other parties
that (i) it is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its formation, (ii) its execution, delivery and
performance of this Agreement are within the power and authority of such party
and have been duly authorized by such party and that no other approval or
authorization is required, (iii) this Agreement has been duly executed and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable in accordance with the terms hereof, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting the rights or
remedies of creditors generally, and (iv) none of the execution and delivery of
this Agreement or compliance with the terms and provisions hereof will violate,
conflict with or result in a breach of, its certificate of incorporation or
bylaws or other constitutive document, any applicable law or regulation, any
order, writ, injunction or decree of any court or governmental authority or
agency, or any agreement or instrument to which it is a party or by which it is
bound or to which it is subject.
(b) Each of the Noteholders further represents and warrants to DMC, as
to itself, that (i) it is the owner of, and/or the investment advisor or manager
(with the absolute power to vote, transfer, and dispose of the Notes on behalf
of the owners of such Notes) of accounts for the holders or beneficial owners
of, the aggregate principal amount of the Notes set forth on its respective
signature page, (ii) the respective aggregate principal amount of Notes set
forth on its respective signature page is true and correct as of the date hereof
(iii) except as contemplated herein, it has not transferred, assigned or
otherwise disposed of, or entered into any agreement (whether written or oral)
to transfer, assign or otherwise dispose of, its right, title and interest in
and to the Notes which it holds, and (iv) upon delivery of such Notes to DMC on
the consummation of the Exchange, DMC shall acquire all right, title and
interest to such Notes, free and clear of any lien, claim, encumbrance or other
restriction.
(c) DMC represents and warrants to the Noteholders that there are no
actions, suits, claims, proceedings or, to their knowledge, investigations
pending or, to their knowledge, threatened against DMC or any of its current or
former directors or officers that would give rise to a material claim for
indemnification against DMC by any of such directors or officers under
applicable law or the certificate of incorporation and/or by-laws of DMC.
(d) DMC represents and warrants to the Noteholders as follows:
(i) SEC REPORTS AND FINANCIAL STATEMENTS. Each form,
report, schedule, registration statement, definitive
proxy statement and other document (together with all
amendments thereof and supplements thereto) filed by
DMC or any of its subsidiaries with the SEC since
December 31, 1997 (as such documents have since the
time of their filing been amended or supplemented,
the "DMC SEC REPORTS"), are all the documents (other
than preliminary material) that DMC and its
subsidiaries were required to file with the SEC since
such date. As of their respective dates, the DMC SEC
Reports (i) complied as to form in all material
respects with
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the requirements of the Securities Act of 1933, as
amended, and the rules and regulations thereunder
(the "SECURITIES Act"), or the Securities Exchange
Act of 1934, as amended, and the rules and
regulations thereunder (the "EXCHANGE ACT"), as the
case may be, and (ii) did not contain any untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading. The audited consolidated
financial statements and unaudited interim
consolidated financial statements (including, in each
case, the notes, if any, thereto) included in the DMC
SEC Reports (the "DMC FINANCIAL STATEMENTS") complied
as to form in all material respects with the
published rules and regulations of the SEC with
respect thereto, were prepared in accordance with
generally accepted accounting principles applied on a
consistent basis during the periods involved (except
as may be indicated therein or in the notes thereto
and except with respect to unaudited statements as
permitted by Form 10-Q of the SEC) and fairly present
(subject, in the case of the unaudited interim
financial statements, to normal, recurring year-end
audit adjustments (which are not expected to be,
individually or in the aggregate, materially adverse
to DMC and its subsidiaries taken as a whole)) the
consolidated financial position of DMC and its
consolidated subsidiaries as at the respective dates
thereof and the consolidated results of their
operations and cash flows for the respective periods
then ended.
(ii) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
disclosed in the DMC SEC Reports filed prior to the
date of this Agreement, (a) since October 28, 2000,
there has not been any change, event or development
having, or that could be reasonably expected to have,
individually or in the aggregate, a material adverse
effect on DMC and its subsidiaries taken as a whole,
other than events, changes or effects that (i) are
caused by general economic conditions in any region
in which DMC and its subsidiaries conduct business or
conditions affecting the types of businesses operated
by DMC and its subsidiaries, which conditions do not
affect DMC and its subsidiaries in a disproportionate
manner, or (ii) are related to or result from the
execution and delivery of this Agreement or from any
action or inaction on the part of the Noteholders or
any of their respective affiliates, and (b) except as
disclosed in Section 3.06 of the Company Disclosure
Letter, which is incorporated herein by reference, in
conjunction with the Merger Agreement (as that term
is defined in the Merger Agreement), between such
date and the date hereof (i) DMC and its subsidiaries
have conducted their respective businesses only in
the ordinary course consistent with past practice and
(ii) neither DMC nor any of its subsidiaries has
taken any action which, if taken after the date
hereof, would
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constitute a breach of any provision of clause (ii)
of Section 5.01(b) of the Merger Agreement.
(iii) ABSENCE OF UNDISCLOSED LIABILITIES. Except for
matters reflected or reserved against in the balance
sheet for the period ended October 28, 2000 included
in the DMC Financial Statements or as disclosed in
Section 3.07 of the Company Disclosure Letter in
conjunction with the Merger Agreement, neither DMC
nor any of its subsidiaries had at such date, or has
incurred since that date, any liabilities or
obligations (whether absolute, accrued, contingent,
fixed or otherwise, or whether due or to become due)
of any nature that would be required by generally
accepted accounting principles to be reflected on a
consolidated balance sheet of DMC and its
consolidated subsidiaries (including the notes
thereto), except liabilities or obligations (i) which
were incurred in the ordinary course of business
consistent with past practice or (ii) which have not
been, and could not be reasonably expected to be,
individually or in the aggregate, materially adverse
to DMC and its subsidiaries taken as a whole.
(e) The Noteholders have no actual knowledge of any breach of
any of DMC's representations or warranties contained herein.
ARTICLE 4.
CONFIDENTIALITY
Section 4.01 CONFIDENTIALITY. Unless required by law or by order of a court of
competent jurisdiction, the parties shall not, directly or indirectly, use or
disclose to any person any information relating to the transactions contemplated
hereby, including without limitation, the existence of this Agreement or the
Term Sheet or of any transactions contemplated therein including the Exchange,
the Amended Indenture and Acquiror's acquisition by merger of DMC, provided that
the parties may disclose such information to their legal counsel and other
advisors in connection with their negotiation and evaluation of the transactions
contemplated hereby and to other holders of Notes not a party hereto in
connection with attempts to gain their consent to the Exchange and the Amended
Indenture, subject in each case to their agreement to be bound by this covenant.
Section 4.02 PUBLIC ANNOUNCEMENT. No party hereto shall make any announcement
regarding the subject matter of this Agreement to which the other parties hereto
shall reasonably object. Each party shall afford the other parties hereto a
reasonable opportunity to review and comment upon each announcement proposed to
be made by it prior to the release thereof.
Section 4.03 DISCLOSURE OF INDIVIDUAL HOLDING. Unless required by applicable
law or regulation or by order of a court of competent jurisdiction, DMC shall
not disclose the principal amount of Notes held by any individual Noteholder
without the prior written consent of such Noteholder, provided, however, that
DMC may disclose such information to its directors, officers, employees,
attorneys, accountants, financial advisors and other agents and representatives.
If the disclosure of such information is so required by law, DMC shall afford
the affected Noteholder a
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reasonable opportunity to review and comment upon any such disclosure. If DMC is
requested in any proceeding to disclose any such information, it shall give
reasonable notice to such Noteholder of such request so that it may seek an
appropriate protective order. The foregoing shall not prohibit DMC from
disclosing the aggregate principal amount of Notes held by the Noteholders as a
group.
ARTICLE 5.
MISCELLANEOUS
Section 5.01 DOCUMENTATION SATISFACTORY. All agreements, documents and
instruments relating to this Agreement, the Exchange, the Solicitation and the
merger of DMC and Acquiror, shall be reasonably satisfactory to each party
hereto. The Noteholders shall receive advance copies of all relevant documents
and papers relating to these transactions as they may reasonably request.
Section 5.02 SPECIFIC PERFORMANCE. It is understood and agreed by each of the
parties hereto that money damages would not be a sufficient remedy for any
material breach of this Agreement by any party and each non-breaching party
shall be entitled to specific performance and injunctive relief or other
equitable relief as a remedy for any such breach. This provision is without
prejudice to any other rights or remedies, whether at law or in equity, that any
party hereto may have against any other party hereto for any failure to perform
its obligations under this Agreement.
Section 5.03 RESERVATION OF RIGHTS. Except as expressly provided in this
Agreement, nothing herein is intended to, or does, in any manner, waive, limit,
impair or restrict the ability of any of the parties hereto to protect and
preserve its rights, remedies and interests, including, without limitation, the
claims of each of the Noteholders against DMC. 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 shall not be admitted into evidence in any proceeding other than in a
proceeding to enforce its terms or relating to a party's material breach of its
obligations hereunder.
Section 5.04 FEES AND EXPENSES. During the term of this Agreement, DMC shall pay
the reasonable and actual fees and expenses of the Noteholders' counsel, in
accordance with the terms of the letter agreement dated as of December __, 2000.
Notwithstanding anything herein to the contrary, DMC's termination of such
letter agreement shall be deemed a termination of the Noteholders' obligations
hereunder.
Section 5.05 AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by all parties hereto.
Section 5.06 SUCCESSORS AND ASSIGNS. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto, and
their respective successors and assigns. Without in any manner limiting the
scope, extent or effect of the foregoing, the respective Noteholders shall not
transfer, assign or otherwise dispose of their right, title and interest in and
to, as applicable, the Notes, except in accordance with section 1.01(b) hereof.
Nothing in the Agreement, express or implied, shall give to any person or
entity, other than the parties hereto, any benefit or any legal or equitable
right, remedy, or claim under this Agreement. The parties intend that there
shall be no third-party beneficiaries of or to this Agreement.
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Section 5.07 NOTICES. In addition to any notice requirement set forth in any
indenture or other agreement, any notice required or desired to be served, given
or delivered under this Agreement shall be in writing, and shall be deemed to
have been validly served, given or delivered if provided by personal delivery,
or upon receipt of fax delivery, as follows:
(a) if to DMC, to:
Dairy Mart Convenience Stores, Inc.
One Dairy Mart Way
000 Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxx, Xxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx Xxxxxxx, Esq. and Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
1. if to the Noteholders, to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq. and Xxx Xxxxxxxxx,
Esq.
Fax: 000-000-0000.
2. If to the Acquiror, to:
Xxxxx & Xxxxxxxxx LLP
3200 National City Center
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn: Xxxxxxx Xxxxxxxx, Esq.
Fax: 000 000-0000
Section 5.10 HEADINGS. The headings of this Agreement are for reference only
and shall not limit or otherwise affect the meaning hereof.
Section 5.09 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to internal
conflicts of law principles.
Section 5.08 COUNTERPARTS. This Agreement may be executed in counterparts in
one or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument. This
Agreement shall become effective as against DMC upon the
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delivery to DMC of executed counterparts by holders of Notes in the aggregate
face amount of at least $61 million.
Section 5.11 TERM SHEET. The provisions of the Term Sheet are
incorporated herein and are made a part of this Agreement and any reference to
the Agreement herein shall be deemed to include a reference to the Term Sheet.
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Term Sheet.
Section 5.12 PROFESSIONAL ADVICE OBTAINED. Each of the Parties has
received independent legal and professional advice from advisors of its choice
with respect to the provisions hereof and the advisability of entering into the
agreements set forth herein. Prior to the execution hereof, each of the Parties
and their applicable advisors reviewed the Agreement.
Section 5.13 FURTHER ASSURANCES. The parties hereto shall do and
perform or cause to be done and performed all such further acts and things and
shall execute and deliver such other agreements, certificates, instruments and
documents as any other party hereto may reasonably request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
Section 5.14 NO CONSIDERATION FOR VOTES. The parties hereto hereby
acknowledge that no consideration has been paid or shall be due or paid to the
Noteholders for their agreement to tender their Notes in the Exchange, to vote
to amend the Indenture, or to take any other action contemplated by this
Agreement, other than DMC's obligation to use its reasonable best efforts to
effectuate the transactions contemplated herein.
Section 5.15 PRONOUNS AND PLURALS. Whenever the context may require,
any pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first written above.
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HIGH YIELD PORTFOLIO, A SERIES OF INCOME TRUST
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President of Income Trust
AXP BOND FUND, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice Pres. of AXP Bond Fund, Inc.
AXP VARIABLE PORTFOLIO--EXTRA INCOME
FUND, A SERIES OF AXP VARIABLE PORTFOLIO
INCOME SERIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice Pres. of AXP Variable Portfolio
Income Series, Inc.
ING CAPITAL ADVISORS, INC.
By: AMERICAN EXPRESS ASSET
MANAGEMENT GROUP, INC.
its authorized Signatory
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board
Aeriel CBO, LIMITED
By: AMERICAN EXPRESS ASSET
MANAGEMENT GROUP, INC.
its authorized Signatory
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board
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MW Post Advisory Group
By: /s/ Xxxx Xxxxxxxxxx
---------------------
Name: Xxxx Xxxxxxxxxx
Title: Managing Director
13
XXX CAPITAL FUNDING, LP
By: HIGHLAND CAPITAL MANAGEMENT LP,
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx, CFA, CPA
Title: President, Highland Capital
Management, L.P.
PAMCO CAYMAN LTD.
By: HIGHLAND CAPITAL MANAGEMENT LP,
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx, CFA, CPA
Title: President, Highland Capital
Management, L.P.
ML CBO IV (CAYMAN) LTD.
By: HIGHLAND CAPITAL MANAGEMENT LP,
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx, CFA, CPA
Title: President, Highland Capital
Management, L.P.
14
DAIRY MART CONVENIENCE STORES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Exec. V.P.
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SCHEDULE 1
----------
Noteholders
NAME
High Yield Portfolio, a series of Income Trust
AXP Bond Fund, Inc.
AXP Variable Portfolio--Extra Income Fund,
A Series of AXP Variable
Portfolio Income Series, Inc.
ING Capital Advisors, Inc.
Aeriel CBO, Ltd.
MW Post Advisory Group
XXX Capital Funding, LP
PAMCO Cayman Ltd.
ML CBO IV (Cayman) Ltd.
Aggregate Principal Amount of
Notes held by such entities as a group $61,950,000.00
