AMENDMENT NO. 1 TO COMMITMENT AGREEMENT
Exhibit 10.2
AMENDMENT NO. 1 TO COMMITMENT AGREEMENT
As of June 29, 2004
To the Subscribers under the
Commitment Agreement referred to below
Ladies and Gentlemen:
Reference is made to the Commitment Agreement, dated as of February 23, 2004, entered into by and among Oglebay Norton Company and the other parties (the “Subscribers”) signatory thereto (the “Agreement”). Defined terms used but not otherwise defined herein shall have the meaning ascribed to them in the Agreement. The Company has agreed to amend the Agreement (1) to provide for the sale of an additional $5 million of Preferred Shares to those Subscribers having a Standby Commitment, (2) to change the date on which the non-completion of the Restructuring Transaction will become a Termination Event from August 31, 2004 to October 15, 2004, (3) to change the date prior to which the Registration Statement shall be declared effective from August 23, 2004 to September 23, 2004, (4) to reflect the fact that the filing of the Registration Statement does not require the Bankruptcy Court’s prior authorization, (5) to reflect the fact that the shares of Common Stock to be issued to the holders of the Subordinated Notes may be included in the Registration Statement, (6) to reflect the fact that no stockholders agreement shall be entered into among the Subscribers and the Company and that a registration rights agreement may be entered into among the Company and the Subscribers under certain conditions set forth herein, and (7) to amend the provision that releases from its rights and obligations under the Agreement any Subscriber that does not consent to the amendment of the Agreement. The total of $85 million of Preferred Shares will represent approximately 74.4% of the equity of reorganized Oglebay before dilution for the Management Options and the Warrants.
Upon receipt of the Requisite Subscribers’ consent as described herein, the Agreement shall be amended as follows:
1. Paragraph (D) of the Preliminary Statements of the Agreement shall be amended by adding thereto the following:
“In addition, the Company will issue and sell to those holders of Subordinated Notes having a Standby Commitment (as defined herein) and the Third Party Investors, and those holders of Subordinated Notes and Third Party Investors shall purchase, additional Preferred Shares for an aggregate purchase price of $5 million.”
As of June 29, 2004
Page 2
2. The following sentence is added as the penultimate sentence of Section 1(a) of the Agreement:
“In addition to the Preferred Shares having an aggregate purchase price of $80 million that are subject to the Offering and notwithstanding the provisions of Exhibit A to this Agreement, each Noteholder having a Standby Commitment and each Third Party Investor agrees to purchase, and the Company agrees to issue and sell to such Noteholders and Third Party Investors, a pro rata portion of that number of Preferred Shares having an aggregate purchase price of $5 million, such pro rata portions to be based upon such Subscribers’ respective Standby Commitment Amounts.”
3. The references to “$80 million” in Section 1(b) of the Agreement and under “Offering of New Convertible Preferred Stock” in Exhibit A of the Agreement shall be deleted and replaced by “$85 million.”
4. The reference to “August 23, 2004” in Section 2 of the Agreement shall be deleted and replaced by “September 23, 2004.”
5. Sections 6(a)(xi) and (6(a)(xii) shall be deleted in their entirety and replaced by the following:
“(xi) the issuance of the shares of Common Stock to the holders of the Subordinated Notes in respect of the cancellation thereof in accordance with the Plan shall be exempt from the registration requirements of the Securities Act by virtue of Section 1145 of the Bankruptcy Code or shall be included in the Registration Statement; and
(xii) if requested by the Requisite Subscribers, the Company shall enter into customary registration rights agreement with any Subscribers or other persons who may be deemed to be underwriters providing demand and piggy-back registration rights, subject to customary restrictions, such agreement to be reasonably satisfactory in form and substance to the Requisite Subscribers.”
6. Section 6(b)(i) of the Agreement shall be deleted in its entirety and replaced by the following: “(i) [intentionally omitted].”
7. Section 7(a)(vii) of the Agreement shall be deleted in its entirety and replaced by the following:
“(vii) the Restructuring Transaction is not completed by October 15, 2004”
As of June 29, 2004
Page 3
8. The second sentence of Section 8 of the Agreement shall be deleted in its entirety and replaced by the following:
“Notwithstanding the foregoing, no such amendment of this Agreement or any waiver or consent hereunder shall, unless in writing and signed by a Subscriber affected thereby, be effective as to such Subscriber to do any of the following: (i) increase or decrease the Commitment Amount or decrease the Commitment Fee of such Subscriber; (ii) decrease the percentage ownership specified under “Existing Senior Subordinated Notes” in Exhibit A to the Agreement; (iii) change the definition of “Required Subscribers”; or (iv) amend this Section 8 of the Agreement.”
9. In order to give effect to the increase from $80 million to $85 million the aggregate purchase price of the Preferred Shares to be purchased by the Subscribers in accordance with Section 1(a) of the Agreement, as amended hereby, the respective Commitment Amounts and Commitment Fees of those Subscribers listed on Schedule I attached hereto shall be increased to the respective Increased Commitment Amounts and Increased Commitment Fees set forth opposite the names of such Subscribers on Schedule I.
The delivery to the Company of this letter duly executed by you will evidence your agreement to the amendments to the Agreement set forth above. These amendments will become effective upon delivery to the Company of copies of this letter duly executed by the Requisite Subscribers. If the Company does not receive a copy of this letter duly executed by you, you will be deemed not to have consented to the proposed amendments set forth in this letter and will be released from all of your rights and obligations under the Agreement in accordance with Section 8.
The provisions of Section 14 of the Agreement relating to counterparts and facsimile signatures shall be applicable to this Amendment No. 1 to the Agreement.
As of June 29, 2004
Page 4
Except as amended hereby, the Agreement shall remain in full force and effect in accordance with its terms.
| Very truly yours, | ||
| OGLEBAY NORTON COMPANY | ||
| By: | /s/ Julie Boland | |
| Name: | Julie Boland | |
| Title: | Vice President, Chief Financial Officer and Treasurer | |
NOTEHOLDERS:
SUBSCRIBERS
| Airlie Opportunity Fund, L.P. | ||||
| By: | /s/ Adam Goodfriend | Principal Amount of Subordinated Notes Beneficially Owned: $3,705,000
Commitment Amount: $7,870,326
Commitment Fee: $304,596 | ||
| Name: | Adam Goodfriend | |||
| Title: | Managing Director | |||
|
Address: c/o Airlie Opportunity Fund, L.P. 115 East Putnam Avenue Greenwich, CT 06830 Fax: (203) 661-0479 | ||||
| Airlie Opportunity Fund Cayman, LTD | ||||
| By: | /s/ Adam Goodfriend | Principal Amount of Subordinated Notes Beneficially Owned: $1,045,000
Commitment Amount: $2,219,836
Commitment Fee: $85,912 | ||
| Name: | Adam Goodfriend | |||
| Title: | Managing Director | |||
|
Address: c/o Airlie Opportunity Fund Cayman, LTD 115 East Putnam Avenue Greenwich, CT 06830 Fax: (203) 661-0479 | ||||
| Robert T. Clutterbuck Trust | ||||
| By: | /s/ Robert T. Clutterbuck | Principal Amount of Subordinated Notes Beneficially Owned: $655,000
Commitment Amount: $524,000
Commitment Fee: $10,480 | ||
| Name: | Robert T. Clutterbuck | |||
| Title: | Trustee | |||
|
Address: Kensington Oval Rocky River, OH 44116 Fax: (440) 356-5259 | ||||
As of June 29, 2004
Page 6
| Thomas G. Berlin | ||||
| /s/ Thomas G. Berlin | Principal Amount of Subordinated Notes Beneficially Owned: $7,120,000
Commitment Amount: $10,650,361
Commitment Fee: $361,638 | |||
|
Address: 23811 Chagrin Blvd. 275 Beachwood, OH 44122 Fax: (216) 514-3344 | ||||
| Stifel Nicolaus & Company, Incorporated | ||||
| By: | /s/ Ronald J. Kruszewski | Principal Amount of Subordinated Notes Beneficially Owned: $655,000
Commitment Amount: $524,000
Commitment Fee: $10,480 | ||
| Name: | Ronald J. Kruszewski | |||
| Title: | Chairman and Chief Executive Officer | |||
|
Address: 501 N. Broadway St. Louis, MO 63102 Fax: (314) 342-2115 | ||||
| Christopher R. Siegel | ||||
| By: | /s/ Christopher R. Siegel | Principal Amount of Subordinated Notes Beneficially Owned: $300,000
Commitment Amount: $792,399
Commitment Fee: $32,420 | ||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
As of June 29, 2004
Page 7
| H. Sheppard Boone | ||||
| By: | /s/ H. Sheppard Boone | Principal Amount of Subordinated Notes Beneficially Owned: $400,000
Commitment Amount: $871,859
Commitment Fee: $33,993 | ||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
| Neil Janovic | ||||
| By: | /s/ Neil Janovic | Principal Amount of Subordinated Notes Beneficially Owned: $400,000
Commitment Amount: $320,000
Commitment Fee: $6,400 | ||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
| Adam Janovic | ||||
| By: | /s/ Adam Janovic | Principal Amount of Subordinated Notes Beneficially Owned: $150,000
Commitment Amount: $120,000
Commitment Fee: $2,400 | ||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
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Page 8
| Thomas Boucher | ||||
| By: | /s/ Thomas Boucher | Principal Amount of Subordinated Notes Beneficially Owned: | ||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | $10,000
Commitment Amount: $597,423
Commitment Fee: $29,631 | |||
| Thomas DiTosto | ||||
| By: | /s/ Thomas DiTosto | Principal Amount of Subordinated Notes Beneficially Owned: $320,000
Commitment Amount: $807,183
Commitment Fee: $32,679 | ||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
| Connecticut General Life Insurance | ||||
| By: | /s/ Leon Meyers | Principal Amount of Subordinated Notes Beneficially Owned: $2,000,000
Commitment Amount: $1,600,000
Commitment Fee: $32,000 | ||
| Name: | Leon Meyers | |||
| Title: | Senior Vice President | |||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
As of June 29, 2004
Page 9
| Evan Janovic | ||||
| By: | /s/ Evan Janovic | Principal Amount of Subordinated Notes Beneficially Owned: $300,000
Commitment Amount: $240,000
Commitment Fee: $4,800 | ||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
| Robert Altman | ||||
| By: | /s/ Ronald Altman | Principal Amount of Subordinated Notes Beneficially Owned: $500,000
Commitment Amount: $400,000
Commitment Fee: $8,000 | ||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
| John Dougherty | ||||
| By: | /s/ John Dougherty | Principal Amount of Subordinated Notes Beneficially Owned: $1,000,000
Commitment Amount: $1,902,637
Commitment Fee: $71,132 | ||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
As of June 29, 2004
Page 10
| Ramer 1990 Living Trust | ||||
| By: | /s/ Lawrence Ramer | Principal Amount of Subordinated Notes Beneficially Owned: $200,000
Commitment Amount: $160,000
Commitment Fee: $3,000 | ||
| Name: | Lawrence Ramer | |||
| Title: | Trustee | |||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
| Ingalls & Snyder Value Part. L.C. | ||||
| By: | /s/ Thomas Boucher | Principal Amount of Subordinated Notes Beneficially Owned: $8,700,000
Commitment Amount: $20,988,419
Commitment Fee: $840,621 | ||
| Name: | Thomas Boucher | |||
| Title: | General Partner | |||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
| Shannah Ferguson | ||||
| By: | /s/ Shannah Ferguson | Principal Amount of Subordinated Notes Beneficially Owned: $620,000
Commitment Amount: $496,000
Commitment Fee: $9,920 | ||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
As of June 29, 2004
Page 11
| Theresa M. Foote | ||||
| By: | /s/ Theresa M. Foote | Principal Amount of Subordinated Notes Beneficially Owned: $400,000
Commitment Amount: $320,000
Commitment Fee: $6,400 | ||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
| Kenneth J. Foote IRA | ||||
| By: | /s/ Kenneth J. Foote | Principal Amount of Subordinated Notes Beneficially Owned: $100,000
Commitment Amount: $80,000
Commitment Fee: $1,600 | ||
| Name: | Kenneth J. Foote | |||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
| William Robert Thomas Trust | ||||
| By: | /s/ Shirley A. Foote | Principal Amount of Subordinated Notes Beneficially Owned: $150,000
Commitment Amount: $120,000
Commitment Fee: $2,400 | ||
| Name: | Shirley A. Foote | |||
| Title: | Trustee | |||
|
Address: c/o Ingalls & Snyder LLC 61 Broadway New York, NY 10006 Fax: (212) 269-4177 | ||||
As of June 29, 2004
Page 12
| Abigail Foote Thomas Trust | ||||
| By: | /s/ Shirley A. Foote | Principal Amount of Subordinated Notes Beneficially Owned: $200,000
Commitment Amount: $160,000
Commitment Fee: $3,200 | ||
| Name: | Shirley A. Foote | |||
| Title: | Trustee | |||
|
Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| Lynn Foote | ||||
| By: | /s/ Lynn Foote | Principal Amount of Subordinated Notes Beneficially Owned: $100,000
Commitment Amount: $544,836
Commitment Fee: $24,842 | ||
| Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| Steadfast LLC | ||||
| By: | /s/ Steven M. Foote | Principal Amount of Subordinated Notes Beneficially Owned: $100,000
Commitment Amount: $80,000
Commitment Fee: $1,600 | ||
| Name: | Steven M. Foote | |||
| Title: | Manager | |||
|
Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
As of June 29, 2004
Page 13
| Blythefield Farms LLC | ||||
| By: | /s/ Kenneth J. Foote | Principal Amount of Subordinated Notes Beneficially Owned: $100,000
Commitment Amount: $80,000
Commitment Fee: $1,600 | ||
| Name: | Kenneth J. Foote | |||
| Title: | Manager | |||
|
Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| Richard Groenendyke | ||||
| By: | /s/ Richard Groenendyke | Principal Amount of Subordinated Notes Beneficially Owned: $120,000
Commitment Amount: $96,000
Commitment Fee: $1,920 | ||
| Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| Heritage Mark Foundation | ||||
| By: | /s/ Kenneth J. Foote | Principal Amount of Subordinated Notes Beneficially Owned: $2,300,000
Commitment Amount: $1,840,000
Commitment Fee: $36,800 | ||
| Name: | Kenneth J. Foote | |||
| Title: | Trustee | |||
|
Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
As of June 29, 2004
Page 14
| Bradford Shingleton Trust | ||||
| By: | /s/ Brad Shingleton | Principal Amount of Subordinated Notes Beneficially Owned: $175,000
Commitment Amount: $140,000
Commitment Fee: $2,800 | ||
| Name: | Brad Shingleton | |||
| Title: | Trustee | |||
|
Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| Elizabeth A. Shingleton Trust | ||||
| By: | /s/ Shirley A. Foote | Principal Amount of Subordinated Notes Beneficially Owned: $100,000
Commitment Amount: $80,000
Commitment Fee: $1,600 | ||
| Name: | Shirley A. Foote | |||
| Title: | Trustee | |||
|
Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| Jennifer C. Shingleton Trust | ||||
| By: | /s/ Shirley A. Foote | Principal Amount of Subordinated Notes Beneficially Owned: $100,000
Commitment Amount: $80,000
Commitment Fee: $1,600 | ||
| Name: | Shirley A. Foote | |||
| Title: | Trustee | |||
|
Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
As of June 29, 2004
Page 15
| Rebecca M. Shingleton Trust | ||||
| By: | /s/ Shirley A. Foote | Principal Amount of Subordinated Notes Beneficially Owned: $75,000
Commitment Amount: $60,000
Commitment Fee: $1,200 | ||
| Name: | Shirley A. Foote | |||
| Title: | Trustee | |||
|
Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| Brad Shingleton | ||||
| By: | /s/ Brad Shingleton | Principal Amount of Subordinated Notes Beneficially Owned: $150,000
Commitment Amount: $120,000
Commitment Fee: $2,400 | ||
| Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| David Shuldiner | ||||
| By: | /s/ David Shuldiner | Principal Amount of Subordinated Notes Beneficially Owned: $75,000
Commitment Amount: $60,000
Commitment Fee: $1,200 | ||
| Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
As of June 29, 2004
Page 16
| Kenneth P. Singleton | ||||
| By: | /s/ Kenneth P. Singleton | Principal Amount of Subordinated Notes Beneficially Owned: $100,000
Commitment Amount: $80,000
Commitment Fee: $1,600 | ||
| Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| CFG Trust | ||||
| By: | /s/ Cheryl F. Groenendyke | Principal Amount of Subordinated Notes Beneficially Owned: $250,000
Commitment Amount: $200,000
Commitment Fee: $4,000 | ||
| Name: | Cheryl F. Groenendyke | |||
| Title: | Trustee | |||
|
Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| Martin L. Solomon | ||||
| By: | /s/ Martin L. Solomon | Principal Amount of Subordinated Notes Beneficially Owned: $150,000
Commitment Amount: $1,094,264
Commitment Fee: $51,113 | ||
| Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
As of June 29, 2004
Page 17
| WCI Steel, Inc. Defined Pension Benefit Plan By: Banc One High Yield Partners, LLC | ||||
| By: | /s/ James P. Shanahan, Jr. | Principal Amount of Subordinated Notes Beneficially Owned: $100,000
Commitment Amount $80,000
Commitment Fee: $1,600 | ||
| Name: | James P. Shanahan, Jr. | |||
| Title: | Manager | |||
|
Address: | ||||
| c/o Banc One High Yield Partners, LLC | ||||
| 8044 Montgomery Rd. | ||||
| Suite 555 | ||||
| Cincinnati, OH 45236 | ||||
| Fax: (513) 985-3217 | ||||
| Legacy Aggressive High Yield Fund By: Banc One High Yield Partners, LLC | ||||
| By: | /s/ James P. Shanahan, Jr. | Principal Amount of Subordinated Notes Beneficially Owned: $150,000
Commitment Amount: $120,000
Commitment Fee: $2,400 | ||
| Name: | James P. Shanahan, Jr. | |||
| Title: | Managing Director/General Counsel | |||
|
Address: | ||||
| c/o Banc One High Yield Partners, LLC | ||||
| 8044 Montgomery Rd. | ||||
| Suite 555 | ||||
| Cincinnati, OH 45236 | ||||
| Fax: (513) 985-3217 | ||||
| Southern UTE Permanent Fund By: Banc One High Yield Partners, LLC | ||||
| By: | /s/ James P. Shanahan, Jr. | Principal Amount of Subordinated Notes Beneficially Owned: $151,000
Commitment Amount: $120,800
Commitment Fee: $2,416 | ||
| Name: | James P. Shanahan, Jr. | |||
| Title: | Manager | |||
|
Address: | ||||
| c/o Banc One High Yield Partners, LLC | ||||
| 8044 Montgomery Rd. | ||||
| Suite 555 | ||||
| Cincinnati, OH 45236 | ||||
| Fax: (513) 985-3217 | ||||
As of June 29, 2004
Page 18
| Southern UTE Growth Fund By: Banc One High Yield Partners, LLC | ||||
| By: | /s/ James P. Shanahan, Jr. | Principal Amount of Subordinated Notes Beneficially Owned: $90,000
Commitment Amount: $72,000
Commitment Fee: $1,440 | ||
| Name: | James P. Shanahan, Jr. | |||
| Title: | Manager | |||
|
Address: | ||||
| c/o Banc One High Yield Partners, LLC | ||||
| 8044 Montgomery Rd. | ||||
| Suite 555 | ||||
| Cincinnati, OH 45236 | ||||
| Fax: (513) 985-3217 | ||||
| Pacholder High Yield Fund, Inc. By: Banc One High Yield Partners, LLC | ||||
| By: | /s/ James P. Shanahan, Jr. | Principal Amount of Subordinated Notes Beneficially Owned: $2,250,000
Commitment Amount: $2,563,473
Commitment Fee: $74,174 | ||
| Name: | James P. Shanahan, Jr. | |||
| Title: | Secretary | |||
|
Address: | ||||
| c/o Banc One High Yield Partners, LLC | ||||
| 8044 Montgomery Rd. | ||||
| Suite 555 | ||||
| Cincinnati, OH 45236 | ||||
| Fax: (513) 985-3217 | ||||
| One Group Income Bond Fund By: Banc One High Yield Partners, LLC | ||||
| By: | /s/ James P. Shanahan, Jr. | Principal Amount of Subordinated Notes Beneficially Owned: $500,000
Commitment Amount: $400,000
Commitment Fee: $8,000 | ||
| Name: | James P. Shanahan, Jr. | |||
| Title: | Manager | |||
|
Address: | ||||
| c/o Banc One High Yield Partners, LLC | ||||
| 8044 Montgomery Rd. | ||||
| Suite 555 | ||||
| Cincinnati, OH 45236 | ||||
| Fax: (513)-985-3217 | ||||
As of June 29, 2004
Page 19
| One Group High Yield Bond Fund By: Banc One High Yield Partners, LLC | ||||
| By: | /s/ James P. Shanahan, Jr. | Principal Amount of Subordinated Notes Beneficially Owned: $4,250,000
Commitment Amount: $6,487,528
Commitment Fee $222,376 | ||
| Name: | James P. Shanahan, Jr. | |||
| Title: | Manager | |||
|
Address: | ||||
| c/o Banc One High Yield Partners, LLC | ||||
| 8044 Montgomery Rd. | ||||
| Suite 555 | ||||
| Cincinnati, OH 45236 | ||||
| Fax: (513)-985-3217 | ||||
| THIRD PARTY INVESTORS | ||||
| John Stein | ||||
| By: | /s/ John Stein | Commitment Amount: $1,008,039
Commitment Fee: $55,402 | ||
|
Address: | ||||
| 507 Carew Tower | ||||
| Cincinnati, OH 45202 | ||||
| Fax: (513)-241-1026 | ||||
| Steven N. Stein | ||||
| By: | /s/ Steven N. Stein | Commitment Amount: $1,108,039
Commitment Fee: $55,402 | ||
|
Address: | ||||
| 507 Carew Tower | ||||
| Cincinnati, OH 45202 | ||||
| Fax: (513) 241-1026 | ||||
As of June 29, 2004
Page 20
| Robert L. Gipson | ||||
| By: | /s/ Robert L. Gipson | Commitment Amount: $3,324,116
Commitment Fee: $166,206 | ||
| Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| Thomas L. Gipson | ||||
| By: | /s/ Thomas L. Gipson | Commitment Amount: $3,324,116
Commitment Fee: $166,206 | ||
| Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| Gator Investment Company | ||||
| By: | /s/ Adam Janovic | Commitment Amount: $1,108,039
Commitment Fee: $55,402 | ||
| Name: | Adam Janovic | |||
| Title: | Member | |||
| Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
As of June 29, 2004
Page 21
| Fledgling Associates LLC | ||||
| By: | /s/ Edward Stern | Commitment Amount: $5,540,194
Commitment Fee: $277,010 | ||
| Name: | Edward Stern | |||
| Title: | Manager | |||
|
Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
| Nikolaos Monoyios | ||||
| By: | /s/ Nikolaos Monoyios | Commitment Amount: $3,324,116
Commitment Fee: $166,206 | ||
|
Address: | ||||
| c/o Ingalls & Snyder LLC | ||||
| 61 Broadway | ||||
| New York, NY 10006 | ||||
| Fax: (212) 269-4177 | ||||
SCHEDULE I
| Subscriber | Principal Amount of Subordinated Notes Beneficially Owned | Increased Commitment Amount | Increased Commitment Fee | ||||||
| Noteholders | |||||||||
| Airlie Opportunity Fund, L.P. | $ | 3,705,000 | $ | 7,870,326 | $ | 304,596 | |||
| Airlie Opportunity Fund Cayman, LTD | $ | 1,045,000 | $ | 2,219,836 | $ | 85,912 | |||
| Thomas G. Berlin | $ | 7,120,000 | $ | 10,650,361 | $ | 361,638 | |||
| Christopher R. Siegel | $ | 300,000 | $ | 792,399 | $ | 32,420 | |||
| H. Sheppard Boone | $ | 400,000 | $ | 871,859 | $ | 33,993 | |||
| Thomas Boucher | $ | 10,000 | $ | 597,423 | $ | 29,631 | |||
| Thomas DiTosto | $ | 320,000 | $ | 807,183 | $ | 32,679 | |||
| John Dougherty | $ | 1,000,000 | $ | 1,902,637 | $ | 71,132 | |||
| Ingalls & Snyder Value Part. L.C. | $ | 8,700,000 | $ | 20,988,419 | $ | 840,621 | |||
| Lynn Foote | $ | 100,000 | $ | 544,836 | $ | 24,842 | |||
| Martin L. Solomon | $ | 150,000 | $ | 1,094,264 | $ | 51,113 | |||
| Pacholder High Yield Fund, Inc. | $ | 2,250,000 | $ | 2,563,473 | $ | 74,174 | |||
| One Group High Yield Bond Fund | $ | 4,250,000 | $ | 6,487,528 | $ | 222,376 | |||
| Third Party Investors | |||||||||
| John Stein | $ | 1,108,039 | $ | 55,402 | |||||
| Steven N. Stein | $ | 1,108,039 | $ | 55,402 | |||||
| Robert L. Gipson | $ | 3,324,116 | $ | 166,206 | |||||
| Thomas L. Gipson | $ | 3,324,116 | $ | 166,206 | |||||
| Gator Investment Company | $ | 1,108,039 | $ | 55,402 | |||||
| Fledgling Associates LLC | $ | 5,540,194 | $ | 277,010 | |||||
| Nikolaos Monoyios | $ | 3,324,116 | $ | 166,206 | |||||
