JOINDER AGREEMENT DATED AS OF JULY 16, 2001
Published on August 16, 2001
EXHIBIT 99.D.4
JOINDER AGREEMENT
This Joinder Agreement ("Joinder Agreement" or "Agreement") is made and
entered into as of the 16th day of July, 2001, by and among Terry Rowe, Jim
Waters, John Marshall, Ken Foskey, Rick Buller and Gary Seeds (collectively, the
"Additional Purchasers"), Max W. Hillman, Jr. as representative of the
Purchasers (as defined below) (the "Representative"), Allied Capital
Corporation, a Maryland corporation and its successors ("Allied Capital"), and
Citibank, N.A., a national banking association duly organized and validly
existing under the laws of the United States of America, acting in its capacity
as escrow agent (the "Escrow Agent"). All capitalized terms used and not
otherwise defined herein shall have the same respective meanings assigned to
them in the Escrow Agreement.
WHEREAS, an Escrow Agreement was entered into on June 18, 2001 by and
among Allied Capital, the Escrow Agent and Max W. Hillman Jr. (individually and
acknowledging the appointment as a representative thereunder), Richard P.
Hillman, Gary Seeds, Dennis Blake and John McDonnell (referred to therein as the
"Purchasers" and "Original Purchasers") (the "Escrow Agreement" and "Original
Escrow Agreement"); and
WHEREAS, the Additional Purchasers desire to join as parties to the
Escrow Agreement and by virtue of such Joinder Agreement become Purchasers
thereunder and subject to all of the terms and provisions of the Escrow
Agreement; and
WHEREAS, the Representative, Allied Capital and Escrow Agent agree to
allow the Additional Purchasers to join as parties to the Escrow Agreement and
by virtue of such Joinder Agreement become Purchasers thereunder and subject to
all of the terms and provisions of the Escrow Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
1. The Additional Purchasers hereby join as parties to the Escrow
Agreement, effective as of the date hereof (the "Effective Date"), and shall as
of the Effective Date for all purposes be considered Purchasers thereunder,
subject to all of the terms and provisions of the Escrow Agreement. From and
after the Effective Date, any reference to the "Escrow Agreement" shall mean the
Escrow Agreement as supplemented by this Joinder Agreement. Except as
specifically set forth in this Joinder Agreement, the terms of the Escrow
Agreement (as supplemented by this Joinder Agreement) shall, as of the Effective
Date, govern the rights and obligations of the parties with respect to the
subject matter of the Escrow Agreement (as supplemented by this Joinder
Agreement) and all references to "Purchasers" from and after the Effective Date
shall include "Purchasers" (as defined in the Escrow Agreement) and the
Additional Purchasers. The Representative and the Additional Purchasers hereby
acknowledge receipt of this Joinder Agreement. The Additional Purchasers hereby
acknowledge receipt of the Escrow Agreement and agree, from and after the
Effective Date, to be bound by the terms of the Escrow Agreement (as
supplemented by this Joinder Agreement).
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2. The Additional Purchasers herewith deposit with the Escrow Agent, and
the Escrow Agent hereby acknowledges receipt from the Additional Purchasers of
cash funds in the aggregate amount of $150,000 (the "Additional Deposit") in the
proportions set forth on Exhibit D-1 hereto. From and after the Effective Date,
the term "Deposit" as used in the Escrow Agreement shall, unless otherwise
specifically contemplated, include the Additional Deposit.
3. All cash earnings, interest and income from the Additional Deposit
which may, from time to time, be held by the Escrow Agent pursuant to the terms
of the Escrow Agreement are the property of the Additional Purchasers and shall
be distributed on a quarterly basis commencing on September 30, 2001, to the
Additional Purchasers in accordance with the terms and conditions set forth in
the Escrow Agreement and applying the proportion of the Deposit (as such term is
defined to read after this Joinder Agreement has been executed) shown on Exhibit
D-2 hereto from and after the Effective Date. From and after the Effective Date,
Exhibit D to the Escrow Agreement is supplemented by and combined with Exhibit
D-1 hereto to read as Exhibit D-2 hereto and any reference in the Escrow
Agreement to Exhibit D from and after the Effective Date shall, unless otherwise
specifically provided to the contrary, refer to Exhibit D as supplemented and
combined with Exhibit D-1 hereto to read as Exhibit D-2 hereto.
4. The Additional Deposit and all cash earnings, interest and income
resulting from the investment and re-investment of such funds in accordance with
the terms and conditions set forth in Section 3 of the Escrow Agreement shall
from and after the Effective Date become part of the Escrow Fund (as defined in
the Escrow Agreement) to be held by the Escrow Agent in accordance with the
terms and conditions set forth in the Escrow Agreement. From and after the
Effective Date, the term Escrow Fund as used in the Escrow Agreement shall,
unless otherwise specifically contemplated, include the Additional Deposit.
5. Each of the Additional Purchasers hereby confirms the authority of
each of the Representatives, each acting solely or both acting together, to act
on behalf of the Additional Purchasers upon the terms contemplated in the Escrow
Agreement from and after the Effective Date. From and after the Effective Date,
any reference in Section 4 of the Escrow Agreement to written instructions from
Purchasers shall require the inclusion of written instructions from the
Additional Purchasers, in the form attached hereto as Exhibit A and in each
case, upon the terms set forth in the Escrow Agreement. Notwithstanding the
terms of the Escrow Agreement (as supplemented hereby), the Escrow Agent shall
as soon as practicable after receipt of the applicable instructions under
Section 4(a) release to Allied Capital (i) in the case of the Additional
Deposit, upon receipt of instructions signed by each of the Additional
Purchasers identified in Exhibit D-1 attached hereto, (ii) in the case of the
Deposit made under the terms of the Original Escrow Agreement, upon receipt of
instructions signed by each of the Original Purchasers identified in Exhibit D
of the Original Agreement, and (iii) in the case of the Deposit (as such term is
defined to read after this Joinder Agreement has been executed), upon receipt of
instructions signed by each of the Purchasers identified in Exhibit D-2,
attached hereto.
6. All deliveries of funds by the Escrow Agent to the Additional
Purchasers as provided in the Escrow Agreement shall be by wire transfer in
immediately available funds to the accounts specified in Exhibit D-2 as
applicable to this Joinder Agreement or otherwise designated by Allied Capital
or one of the Additional Purchasers in accordance with the terms and conditions
set forth in the Escrow
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Agreement. In the event funds transfer instructions are given (other than in
writing at the time of execution of this Joinder Agreement), whether in writing,
by telecopier or otherwise, the Escrow Agent is authorized to seek confirmation
of such instructions by telephone call back to the applicable person or persons
designated in Exhibit C attached hereto, and the Escrow Agent may rely upon the
confirmations of anyone purporting to be the person or persons so designated in
Exhibit C attached hereto. To ensure accuracy of the instructions the Escrow
Agent receives, the Escrow Agent may record such callbacks. If the Escrow Agent
is unable to verify the instructions, or is not satisfied with the verification
it receives, it is hereby authorized to not execute such instruction until all
issues have been resolved. The persons and telephone numbers for call backs may
be changed by the applicable party only in writing signed by such party or an
authorized representative, actually received and acknowledged by the Escrow
Agent.
7. All notices, requests, demands and other communications required or
permitted under the Escrow Agreement shall be deemed effective when delivered by
hand, or when telecopied with receipt confirmed, or when properly delivered by a
nationally recognized commercial overnight delivery service, prepaid as follows:
If to Allied Capital:
Allied Capital Corporation
1919 Pennsylvania Avenue, N.W.
Washington, DC 20006
ATTN: Daniel L. Russell
FAX: 202-659-2053
With a concurrent copy to:
Sutherland Asbill & Brennan LLP
1275 Pennsylvania Avenue, N.W.
Washington, DC 20004-2415
ATTN: James D. Darrow
FAX: 202-637-3593
If to the Representative:
The Hillman Group, Inc.
10590 Hamilton Avenue
Cincinnati, OH 45231
ATTN: Debbie Haidet - RE: Max W. Hillman, Jr.
FAX: 513-851-5585
If to the Additional Purchasers:
Terry Rowe
91895 South Farmer Avenue
Tempe, AZ 85284
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ATTN: Liz Keating - RE: Terry Rowe
FAX: 480/731-7472
And to:
Jim Waters
10590 Hamilton Avenue
Cincinnati, OH 45231
ATTN: Debbie Haidet - RE: Jim Waters
FAX: 513/595-8292
And to:
John Marshall
2107 Glencorse Court
Plainfield, IL 60544
ATTN: John Marshall
FAX: 815/436-0343
And to:
Ken Foskey
10590 Hamilton Avenue
Cincinnati, OH 45321
ATTN: Debbie Haidet - RE: Ken Foskey
FAX: 513/595-8292
And to:
Rick Buller
10590 Hamilton Avenue
Cincinnati, OH 45321
ATTN: Debbie Haidet - RE: Rick Buller
FAX: 513/595-8292
And to:
Gary Seeds
10590 Hamilton Avenue
Cincinnati, OH 45321
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ATTN: Debbie Haidet - RE: Gary Seeds
FAX: 513/595-8292
If to the Escrow Agent:
Citibank, N.A.
120 Broadway 2nd Floor
New York, NY 10271
ATTN: Kerry McDonough
FAX: 212-266-4550
With a concurrent copy to:
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, NY 10036
ATTN: Herman H. Raspe, Esq.
FAX: 212-336-2222
Such notice addresses and telecopy numbers may be changed upon written
notice to the other parties hereto.
8. This Joinder Agreement supplements the terms of the Original Escrow
Agreement and, as such, is not intended to modify or waive any rights of the
parties to the Original Escrow Agreement. Any modification or waiver of the
rights of the Original Purchasers shall require the written consent only of the
parties to the Original Escrow Agreement, including the Original Purchasers. Any
modifications or waiver of the rights of the Additional Purchasers shall require
the written consent only of the parties hereto, including the Additional
Purchasers.
9. This Joinder Agreement may be executed in two 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 Joinder Agreement may be executed
and delivered in counterpart signature pages and delivered via facsimile
transmission, and any such counterpart executed and delivered via facsimile
transmission shall be deemed an original for all intents and purposes.
10. Each of Allied Capital, the Representative and the Additional
Purchasers hereby represents and warrants (i) that this Joinder Agreement has
been duly authorized, executed and delivered on its behalf and constitutes its
legal, valid and binding obligation, and (ii) that the execution, delivery and
performance of this Joinder Agreement by it does not violate any applicable law
or regulation and does not breach or violate any other agreements it is a party
to.
11. Any payments of income from the Escrow Fund shall be subject to
withholding regulations then in force with respect to United States taxes. The
parties hereto will provide the Escrow Agent with appropriate W-9 forms for tax
I.D. number certifications, or W-8 forms for non-resident alien certifications.
It is understood that the Escrow Agent shall be responsible for income reporting
only with respect to income earned on investment funds which are a part of the
Escrow Fund
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and is not responsible for any other reporting. Any income taxes generated from
the Escrow Funds after Effective Date shall be paid by the Purchasers (as such
term is defined to read after this Joinder Agreement has been executed) in the
same proportion as shown on Exhibit D-2 attached hereto, and the Escrow Agent
shall deliver Form 1099 to each Purchaser evidencing each such Purchaser's
respective amount of income, as apportioned pursuant to Exhibit D-2 attached
hereto with the respective amounts to and in the name of each Purchaser (as such
term is defined to read after this Joinder Agreement has been executed).
IN WITNESS WHEREOF, the parties hereto have executed this Joinder
Agreement as of the day and year first above written:
ALLIED CAPITAL CORPORATION
BY: /s/ JOAN M. SWEENEY
-----------------------------
NAME: Joan M. Sweeney
---------------------------
TITLE: Managing Director and
Chief Operating Officer
--------------------------
/s/ TERRY ROWE
--------------------------------
Terry Rowe
--------------------------------
Tax ID Number
/s/ JIM WATERS
--------------------------------
Jim Waters
--------------------------------
Tax ID Number
/s/ JOHN MARSHALL
--------------------------------
John Marshall
--------------------------------
Tax ID Number
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/s/ KEN FOSKEY
--------------------------------
Ken Foskey
--------------------------------
Tax ID Number
/s/ RICK BULLER
--------------------------------
Rick Buller
--------------------------------
Tax ID Number
/s/ GARY SEEDS
--------------------------------
Gary Seeds
--------------------------------
Tax ID Number
/s/ MAX W. HILLMAN, JR.
--------------------------------------
Max W. Hillman, Jr., as representative
under the Escrow Agreement
CITIBANK, N.A.
BY: /s/ JOHN P. HOWARD
-----------------------------
NAME: John P. Howard
---------------------------
TITLE: Vice President
--------------------------
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STATE OF Ohio :
----------------
COUNTY OF Hamilton :
----------------
I, Sandra R. Harrod, a Notary Public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that Max W. Hillman, Jr., personally came
before me and is the same person whose name is subscribed to the foregoing
agreement, who, has appeared before me this day in person and acknowledged that
he signed and delivered the said agreement as his own free and voluntary act for
the uses and purposes therein set forth.
Given under my hand and Notarial Seal this 13 day of July, 2001.
/s/ SANDRA R. HARROD
-------------------------
Notary Public
My commission expires: 12-12-04
----------------------
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STATE OF Arizona :
----------------
COUNTY OF Maricopa :
----------------
I, M. Ann Baker nee M. Ann Ross, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY that Terry Rowe, personally came
before me and is the same person whose name is subscribed to the foregoing
agreement, who, has appeared before me this day in person and acknowledged that
he signed and delivered the said agreement as his own free and voluntary act for
the uses and purposes therein set forth.
Given under my hand and Notarial Seal this 16 day of July, 2001.
/s/ M. Ann Baker nee M. Ann Ross
-------------------------
Notary Public
My commission expires: 3-29-2003
----------------------
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STATE OF Ohio :
----------------
COUNTY OF Hamilton :
----------------
I, Sandra R. Harrod, a Notary Public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that Jim Waters, personally came before
me and is the same person whose name is subscribed to the foregoing agreement,
who, has appeared before me this day in person and acknowledged that he signed
and delivered the said agreement as his own free and voluntary act for the uses
and purposes therein set forth.
Given under my hand and Notarial Seal this 13 day of July, 2001.
/s/ SANDRA R. HARROD
-------------------------
Notary Public
My commission expires: 12-12-04
-----------------------
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STATE OF Ohio :
----------------
COUNTY OF Hamilton :
----------------
I, Sandra R. Harrod, a Notary Public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that Ken Foskey, personally came before
me and is the same person whose name is subscribed to the foregoing agreement,
who, has appeared before me this day in person and acknowledged that he signed
and delivered the said agreement as his own free and voluntary act for the uses
and purposes therein set forth.
Given under my hand and Notarial Seal this 13 day of July, 2001.
/s/ SANDRA R. HARROD
-------------------------
Notary Public
My commission expires: 12-12-04
-----------------------
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STATE OF Ohio :
----------------
COUNTY OF Hamilton :
----------------
I, Sandra R. Harrod, a Notary Public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY that John Marshall, personally came before me
and is the same person whose name is subscribed to the foregoing agreement, who,
has appeared before me this day in person and acknowledged that he signed and
delivered the said agreement as his own free and voluntary act for the uses and
purposes therein set forth.
Given under my hand and Notarial Seal this 13 day of July, 2001.
/s/ SANDRA R. HARROD
-------------------------
Notary Public
My commission expires: 12-12-04
-----------------------
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STATE OF Ohio :
----------------
COUNTY OF Hamilton :
----------------
I, Sandra R. Harrod, a Notary Public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that Rick Buller, personally came before
me and is the same person whose name is subscribed to the foregoing agreement,
who, has appeared before me this day in person and acknowledged that he signed
and delivered the said agreement as his own free and voluntary act for the uses
and purposes therein set forth.
Given under my hand and Notarial Seal this 13 day of July, 2001.
/s/ SANDRA R. HARROD
-------------------------
Notary Public
My commission expires: 12-12-04
-----------------------
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STATE OF Ohio :
----------------
COUNTY OF Hamilton :
----------------
I, Sandra R. Harrod, a Notary Public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that Gary Seeds, personally came before
me and is the same person whose name is subscribed to the foregoing agreement,
who, has appeared before me this day in person and acknowledged that he signed
and delivered the said agreement as his own free and voluntary act for the uses
and purposes therein set forth.
Given under my hand and Notarial Seal this 13 day of July, 2001.
/s/ SANDRA R. HARROD
-------------------------
Notary Public
My commission expires: 12-12-04
-----------------------
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