EXHIBIT 10.20
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT ("Agreement") is made and entered as of April
1, 2003, by and among PETRA MEZZANINE FUND, L.P., a Delaware limited partnership
("Subordinating Creditor"), FIND/SVP, Inc., a New York corporation ("Borrower"),
GUIDELINE RESEARCH CORP., a New York corporation, TABLINE DATA SERVICES, INC., a
New York corporation, GUIDELINE/CHICAGO, INC., an Illinois corporation, ADVANCED
ANALYTICS, INC., a New York corporation, and GUIDELINE CONSULTING CORP., a New
York corporation (collectively, "Guarantors"; Guarantors and Borrower are
sometimes hereinafter individually referred to as a "Debtor Party" and
collectively referred to as "Debtor Parties"), and JPMORGAN CHASE BANK, a New
York banking corporation ("Bank").
W I T N E S S E T H:
WHEREAS, Bank has extended certain credit to Debtor Parties as hereinafter
described; and
WHEREAS, at Borrower's request, Subordinating Creditor has agreed to make
available certain additional credit to Borrower; and
WHEREAS, as a condition of Bank consenting to such extension of additional
credit by Subordinating Creditor to Borrower, Bank has required that
Subordinating Creditor, Debtor Parties and Bank enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
(a) GENERAL TERMS. For purposes of this Agreement, the following
terms shall have the following meanings:
"BLOCKAGE PERIOD" shall mean the period commencing on the date that
Bank shall have delivered written notice to Debtor Parties and Subordinated
Creditor that an Event of Default has occurred and is continuing, and ending on
the earliest of (i) in the case of a Non-Payment Default, the day which is one
hundred eighty (180) days after delivery of such notice, (ii) the day on which
such Event of Default shall have been cured to the satisfaction of Bank or shall
have been waived in writing by Bank, and (iii) the date that Bank has no further
commitment or other obligation to lend to Debtor Parties and the Senior
Indebtedness has been indefeasibly paid in full in cash (or in any other manner
acceptable to Bank); provided that (a) no Blockage Period may be imposed as a
result of any particular circumstances constituting a Non-Payment Default which
served as the basis for a previous Blockage Period, and (b) no circumstances
which constitute a Non-Payment Default which were in existence at the effective
date of the commencement of a Blockage Period resulting from another Non-Payment
Default,
and of which Bank had actual knowledge as of such date, may serve as the basis
for the commencement of any subsequent Blockage Period.
"COLLATERAL ASSIGNMENT" shall have the meaning given such term in
Section 7 of this Agreement.
"DISTRIBUTION" shall mean any payment directly or indirectly by or
on behalf of Debtor Parties, whether in cash, in kind, securities or any other
property or security for any such Distribution.
"EVENT" shall have the meaning given such term in SUBSECTION 2(c) of
this Agreement.
"EVENT OF DEFAULT" shall have the meaning given such term in each
Senior Note.
"NON-PAYMENT DEFAULT" shall mean the occurrence of any Event of
Default other than a Payment Default.
"PAYMENT DEFAULT" shall mean any Event of Default resulting from the
failure to pay, when due, any obligation with respect to the Senior Indebtedness
(including non-payment following acceleration or maturity of the Senior
Indebtedness).
"PERMITTED PAYMENTS" shall mean regularly scheduled payments of
interest and principal on the Subordinated Indebtedness.
"SENIOR COLLATERAL" shall mean any and all collateral now or
hereafter securing any of the Senior Indebtedness.
"SENIOR INDEBTEDNESS" shall mean any and all obligations of any kind
owed by Debtor Parties to Bank from time to time, including but not limited to
all obligations of Debtor Parties to Bank under or pursuant to any of the Senior
Lending Agreements (including any and all obligations arising out of any
extension, refinancing, replacement or refunding thereof), up to a maximum
principal amount of $2,500,000, plus all interest accruing thereon (including
all interest accruing after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency or reorganization of any Debtor
Party, whether or not a claim for such interest is allowed in such case,
proceeding or other action), charges, expenses, fees and other sums chargeable
to Debtor Parties by Bank, and any reimbursement, indemnity or other obligations
due and payable to Bank.
"SENIOR LENDING AGREEMENTS" shall mean collectively (i) the Senior
Notes, and (ii) any and all other instruments and documents now or hereafter
executed by Debtor Parties and delivered to Bank pursuant to or in connection
with any Senior Note, including, without limitation, (A) that certain Security
Agreement, dated December 30, 1999, executed by Borrower in favor of Bank, (B)
that certain Subsidiary Guaranty, dated as of April 1, 2003, made by the
Guarantors in favor of Bank, and (C) that certain Subsidiary Security Agreement,
dated as of April 1, 2003, made by the Guarantors in favor of Bank, in each case
as the same may be amended, restated, modified or supplemented from time to
time.
2
"SENIOR NOTES" shall mean, collectively, (a) that certain Amended
and Restated Term Promissory Note, executed by Borrower and payable to the order
of Bank, in the original principal amount of $1,500,000, of even date herewith,
and (b) that certain Amended and Restated Senior Grid Promissory Note, executed
by Borrower and payable to the order of Bank, in the maximum principal amount of
$1,000,000, of even date herewith, together with any and all amendments,
extensions, modifications, restatements and renewals thereof.
"STANDSTILL PERIOD" shall have the meaning given such term in
SUBSECTION 2(b) of this Agreement.
"SUBORDINATED INDEBTEDNESS" shall mean any and all obligations of
any kind owed by Debtor Parties to the Subordinating Creditor from time to time,
including but not limited to all obligations of Debtor Parties to Subordinating
Creditor under or pursuant to any of the Subordinated Lending Agreements
(including, without limitation, any and all obligations arising out of any
extension, refinancing, replacement or refunding thereof), plus all interest
accruing thereon (including, without limitation, all interest accruing after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of any of the Debtor Parties, whether or not a
claim for such interest is allowed in such case, proceeding or other action),
charges, expenses, fees and other sums chargeable to Debtor Parties by
Subordinating Creditor, and reimbursement, indemnity or other obligations due
and payable to Subordinating Creditor.
"SUBORDINATED INDEBTEDNESS DEFAULT" shall mean any default by Debtor
Parties in respect of any of the Subordinated Indebtedness.
"SUBORDINATED LENDING AGREEMENTS" shall mean the Subordinated Note,
the Loan Agreement referred to therein and any and all other instruments and
documents now or hereafter executed by Debtor Parties and delivered to
Subordinating Creditor, pursuant to or in connection therewith, in each case as
the same has been or may be amended, restated, modified or supplemented from
time to time.
"SUBORDINATED NOTE" shall mean that certain Promissory Note executed
by Borrower and payable to the order of Subordinating Creditor, in the original
principal amount of $3,000,000.00, dated April 1, 2003, together with any and
all amendments, extensions, modifications, restatements and renewals thereof.
(b) OTHER TERMS. Capitalized terms not otherwise defined herein
shall have the meanings given to them in the Senior Note.
2. SUBORDINATION OF DEBT. Notwithstanding any provision of the
Subordinated Lending Agreements to the contrary, the Subordinated Indebtedness
is and shall be expressly junior and subordinated in right of payment to all
Senior Indebtedness to the extent and in the manner provided in this Agreement.
(a) DISTRIBUTIONS. Except as set forth in SECTION 7 hereof, Debtor
Parties shall not make any Distribution on the Subordinated Indebtedness, and
Subordinating Creditor shall
3
not receive or retain any Distribution on the Subordinated Indebtedness, until
such time as the Senior Indebtedness shall have been indefeasibly paid in full
in cash (or in any other manner acceptable to Bank); PROVIDED, HOWEVER, that
nothing in this Agreement shall prohibit Debtor Parties from paying, or the
Subordinating Creditor from receiving, Permitted Payments so long as no Blockage
Period exists; PROVIDED, FURTHER, HOWEVER, that notwithstanding the foregoing or
any other provisions contained herein or in any Subordinated Lending Agreements
to the contrary, Debtor Parties shall not make any payment in respect of
principal on the Subordinated Indebtedness, and Subordinating Creditor shall not
receive or retain any payment in respect of principal on the Subordinating
Indebtedness, until on or after the earlier of (i) the date that occurs
ninety-one (91) days after repayment in full in cash (or in any other manner
acceptable to Bank) of all Senior Indebtedness, or (ii) March 31, 2006. In the
event any Distribution is made in violation of this SUBSECTION 2(a),
Subordinating Creditor will hold the same in trust for Bank and will forthwith
pay the same over to Bank in the form received (with any required endorsement),
for credit and application upon the Senior Indebtedness in such order as Bank
may in its discretion deem appropriate.
(b) LIMITATION ON ACTION WITH RESPECT TO SUBORDINATED INDEBTEDNESS;
STANDSTILL PERIOD. Except as set forth in SECTION 7 hereof, the Subordinating
Creditor shall not, except after the end of a period (the "Standstill Period")
of one hundred eighty (180) days commencing on the date Subordinating Creditor
gives written notice to Bank of the occurrence of a Subordinated Indebtedness
Default (PROVIDED, HOWEVER, if during any Standstill Period Bank shall give
Subordinating Creditor notice that a Payment Default exists, the Standstill
Period shall extend for a period equal to the lesser of (i) three hundred sixty
(360) days from commencement of such Standstill Period or (ii) the period
beginning upon commencement of such Standstill Period and ending the day on
which such Payment Default shall have been cured to the satisfaction of Bank or
shall have been waived in writing by Bank), take any action with respect to the
Subordinated Indebtedness, including, without limitation, accelerating the
maturity of the Subordinated Indebtedness, commencing any action or proceeding
to recover any amounts due or to become due with respect to the Subordinated
Indebtedness, exercising any remedy with respect to any collateral securing the
Subordinated Indebtedness or exercising any right of set-off it may have;
PROVIDED, HOWEVER, that nothing in this SUBSECTION 2(b) shall preclude
Subordinating Creditor (i) from joining with any creditor in any insolvency,
bankruptcy, receivership, liquidation, reorganization or other similar
proceeding if Bank has joined in any such proceeding, or (ii) from defending any
action, suit or other legal or equitable proceeding initiated by Debtor Parties
against Subordinating Creditor; PROVIDED, FURTHER, HOWEVER, that nothing in this
SUBSECTION 2(b) shall be construed to permit Subordinating Creditor to receive
any Distribution except as expressly permitted by the other provisions of this
Agreement.
(c) PRIOR PAYMENT OF SENIOR INDEBTEDNESS IN BANKRUPTCY, ETC. Except
as set forth in SECTION 7 hereof, in the event of any insolvency or bankruptcy
proceedings relative to any of the Debtor Parties or their property, or any
receivership, liquidation, reorganization or other similar proceedings in
connection therewith, or, in the event of any proceedings for voluntary or
involuntary liquidation, dissolution or other winding up of Debtor Parties or
distribution or marshaling of their assets or any composition with creditors of
any of the Debtor Parties, whether or not involving insolvency or bankruptcy, or
if any of the Debtor Parties shall cease its operations or no longer do business
as a going concern (each individually or collectively, an "Event"), then all
Senior Indebtedness shall be indefeasibly paid in full in cash
4
(or in any other manner acceptable to Bank) before any Distribution shall be
made on account of the Subordinated Indebtedness. Any such Distribution which
would, but for the provisions hereof, be payable or deliverable in respect of
the Subordinated Indebtedness, shall be paid or delivered directly to Bank for
application to the Senior Indebtedness in such order as Bank may in its
discretion deem appropriate until all amounts owing upon Senior Indebtedness
shall have been indefeasibly paid in full in cash (or in any other manner
acceptable to Bank). In the event any such Distribution is made in violation of
this SUBSECTION 2(c), Subordinating Creditor will hold the same in trust for
Bank and will forthwith pay the same over to Bank in the form received (with any
required endorsement), for such application to the Senior Indebtedness. Bank
shall be entitled, and is hereby authorized and empowered, to file proofs of
claim for any of the Subordinated Indebtedness, if Subordinated Creditor shall
be unable or unwilling to do so.
(d) SURVIVAL OF RIGHTS. The right of any holder of Senior
Indebtedness to enforce the provisions of this Agreement shall not be prejudiced
or impaired by any act or omitted act of Debtor Parties or any such holder of
Senior Indebtedness, including but not limited to forbearance, waiver, consent,
compromise, amendment, extension, renewal, or taking or release of any security,
in whole or in part, in respect of any Senior Indebtedness or noncompliance by
Debtor Parties with such provisions, regardless of the actual or imputed
knowledge of such holder of Senior Indebtedness.
3. SUBORDINATION OF LIEN. Except as set forth in SECTION 7 hereof,
notwithstanding the order or time of attachment of a security interest, or the
order, time or manner of perfection or lack of perfection of a security
interest, or the order or time of filing or recordation of any document or
instrument, or other method of perfecting a security interest and
notwithstanding any conflicting terms or conditions which may be contained in
the Subordinated Lending Agreements, the liens of Bank upon the Senior
Collateral have and shall have priority over the liens of the Subordinating
Creditor upon the Senior Collateral, and such liens of the Subordinating
Creditor are, and shall be, in all respects subject and junior to the liens of
Bank to the full extent of the Senior Indebtedness outstanding from time to
time.
4. AMENDMENTS TO SUBORDINATED LENDING AGREEMENTS. The Subordinating
Creditor shall not, without the prior written consent of Bank, amend or modify
the Subordinated Lending Agreements if the effect of such amendment is to cause
the terms of the Subordinated Lending Agreements to be less favorable to Debtor
Parties or to adversely affect the rights of Bank hereunder or under any Senior
Lending Agreements, including, but not limited to, any amendment which (a)
increases the interest rate on the Subordinated Indebtedness, (b) changes the
dates upon which payments are due in a manner less favorable to Debtor Parties,
or (c) changes any payment provision in a manner less favorable to Debtor
Parties.
5. AMENDMENTS TO SENIOR LENDING AGREEMENTS. Nothing contained in this
Agreement shall in any manner limit or restrict the ability of Bank to amend,
modify or supplement any Senior Lending Agreements, or to otherwise waive the
terms and conditions of the Senior Lending Agreements (provided that the
principal amount of the Senior Indebtedness is not increased to an amount in
excess of $2,500,000). The Subordinating Creditor hereby consents to any and all
such waivers, amendments, modifications, supplements and compromises, and any
other renewals, extensions, indulgences, releases of collateral or other
accommodations granted by Bank to Debtor Parties from time to time, and agrees
that none of
5
such actions shall in any manner affect or impair the subordination established
by this Agreement in respect of the Subordinated Indebtedness. This Agreement
shall constitute a continuing agreement of subordination, and the Bank may
continue, without notice to Subordinating Creditor, to lend monies, extend
credit and make other accommodations to or for the account of Debtor Parties on
the faith hereof.
6. SUBROGATION. Provided that the Senior Indebtedness has been
indefeasibly paid in full in cash (or in any other manner acceptable to Bank),
Subordinating Creditor shall be subrogated to the rights of Bank to receive
Distributions on account of the Senior Indebtedness, to the extent of all
Distributions paid over to or for the benefit of Bank pursuant to this
Agreement.
7. COLLATERAL ASSIGNMENT OF LIFE INSURANCE POLICY, WARRANT AND STOCK
PURCHASE AGREEMENT. Notwithstanding anything contained herein to the contrary,
nothing contained herein shall subordinate, limit or restrict Subordinating
Creditor's rights in respect of (a) that certain Assignment of Life Insurance as
Collateral dated April 1, 2003, covering a life insurance policy in the face
amount of $3,000,000 on the life of Xxxxx Xxxxx (the "Collateral Assignment"),
including but not limited to Subordinating Creditor's rights to enforce its
remedies in respect of the Collateral Assignment and apply the proceeds thereof
to the Subordinated Indebtedness (whether or not a Blockage Period or Standstill
Period exists) or (b) the Warrant or the Stock Purchase Agreement (as such terms
are defined in the Subordinated Lending Agreements) or any securities issued
thereunder.
8. MISCELLANEOUS.
(a) BANKRUPTCY. This Agreement shall continue in full force and
effect after the filing of any petition by or against any of the Debtor Parties
under the United States Bankruptcy Code and all converted or succeeding cases in
respect thereof. All references herein to Debtor Parties shall be deemed to
apply to Debtor Parties as debtor-in-possession and to a trustee for Debtor
Parties.
(b) DURATION OF AGREEMENT. This Agreement shall be a continuing
agreement, shall be binding upon and shall inure to the benefit of the parties
hereto from time to time and their respective transferees, endorsees, successors
and assigns, shall be irrevocable and shall remain in full force and effect
until the Senior Indebtedness shall have been indefeasibly paid in full in cash
(or in any other manner acceptable to Bank) and all Senior Lending Agreements
and any commitment or other obligation of Bank to lend to Debtor Parties shall
have been irrevocably terminated; provided that this Agreement shall continue to
be effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any amount paid by or on behalf of Debtor Parties with
regard to the Senior Indebtedness is rescinded or must otherwise be restored or
returned upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Debtor Parties, or upon or as a result of the appointment of a
receiver, intervener or conservator of, or trustee, custodian, or similar
officer, for any of the Debtor Parties or any substantial part of their
property, or otherwise, all as though such payments had not been made.
6
(c) BINDING EFFECT; OTHER. No action Debtor Parties may take or
refrain from taking with respect to the Senior Indebtedness shall affect the
provisions of this Agreement or the obligations of the Subordinating Creditor
hereunder. Any waiver or amendment hereunder must be evidenced by a signed
writing of the party to be bound thereby, and shall only be effective in the
specific instance. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. The headings in this
Agreement are for convenience of reference only, and shall not alter or
otherwise affect the meaning hereof.
(d) NOTICES. Any and all notices, elections or demands permitted or
required to be made under this Agreement shall be in writing and shall be
delivered personally, telecopied or sent by certified mail or nationally
recognized courier service (such as Federal Express), to the other party at the
address set forth below, or at such other address as may be supplied in writing
by the party whose address is being changed and of which receipt has been
acknowledged in writing. The date of personal delivery or telecopy or the date
of mailing (or delivery to such courier service), as the case may be, shall be
the date of such notice, election or demand. For the purposes of this Agreement:
The address of Bank is:
JPMORGAN CHASE BANK
1166 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Xxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
The address of Debtor Parties is:
FIND/SVP, INC.
000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopy Number: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
7
Telecopy Number: (000) 000-0000
The address of Subordinating Creditor is:
Petra Mezzanine Fund, L.P.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. X'Xxxxx
Telecopy Number: (000) 000-0000
with a copy to:
Bass, Xxxxx & Xxxx PLC
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopy Number: (000) 000-0000
(e) PROCEEDINGS. Any judicial proceeding brought by or against the
Subordinating Creditor or Bank with respect to this or any related agreement may
be brought in any court of competent jurisdiction in the County of Xxx Xxxx,
Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America (or any appellate court having
jurisdiction over any such court), and, by execution and delivery of this
Agreement, the Subordinating Creditor, Bank and Debtor Parties accept for
themselves and in connection with their properties, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts, and
irrevocably agree to be bound by any final judgment rendered thereby in
connection with this Agreement. Nothing herein shall affect the right to serve
process in any manner permitted by law. The Subordinating Creditor, Bank and
Debtor Parties waives any objection to jurisdiction and venue of any action
instituted hereunder and shall not assert any defense based on lack of
jurisdiction or venue or based upon forum non convenient.
(f) WAIVER OF JURY TRIAL. THE SUBORDINATING CREDITOR, DEBTOR PARTIES
AND BANK HEREBY KNOWINGLY, VOLUNTARILY AND EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE SUBORDINATING CREDITOR, DEBTOR PARTIES AND
BANK OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED BY ANY OF THEM IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE AND THE SUBORDINATING CREDITOR, DEBTOR PARTIES AND BANK HEREBY AGREE
AND CONSENT THAT ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT JURY, AND THAT ANY OF THEM MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS
8
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THEIR CONSENT TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
(g) THIRD PARTY BENEFICIARIES. The provisions of this Agreement are
solely to define the relative rights of the Subordinating Creditor and Bank and
nothing in this Agreement shall confer any right or benefit on Debtor Parties or
any third party.
(h) NOTICE OF DEBTOR PARTIES. If any Debtor Party has knowledge of
any fact that would prohibit the making of any Distribution under this
Agreement, it shall give prompt written notice of such fact to Bank and
Subordinating Creditor, but failure to give such notice shall not affect the
enforceability of this Agreement or affect or impair the subordination
established by this Agreement in respect of the Subordinated Indebtedness.
(i) FURTHER ASSURANCES. Each of the Subordinating Creditor and
Debtor Parties agree, at their own cost and expense, to execute and deliver all
such further agreements, instruments and other documents and take any other
further actions as Bank may reasonably request to evidence the subordination
provided for in this Agreement or to provide to Bank the full benefits hereof.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
9
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first above written.
DEBTOR PARTIES: FIND/SVP, INC.
By: /s/ Xxxxx Xxxxx
----------------------------------------
Title: Vice President
GUIDELINE RESEARCH CORP.
By: /s/ Xxxxx Xxxxx
----------------------------------------
Title: Vice President
TABLINE DATA SERVICES, INC.
By: /s/ Xxxxx Xxxxx
----------------------------------------
Title: Vice President
GUIDELINE/CHICAGO, INC.
By: /s/ Xxxxx Xxxxx
----------------------------------------
Title: Vice President
GUIDELINE CONSULTING CORP.
By: /s/ Xxxxx Xxxxx
----------------------------------------
Title: Vice President
SUBORDINATING CREDITOR: PETRA MEZZANINE FUND, L.P.
By: Petra Partners, LLC, its general partner
By: /s/ Xxxxxx X. X'Xxxxx III
----------------------------------------
Xxxxxx X. X'Xxxxx, Managing Member
BANK: JPMORGAN CHASE BANK
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Title: Vice President
10
