Exhibit 10.7


 


EXECUTION COPY


 


NOTE PURCHASE AGREEMENT


 


 


Dated as of November 22,
2005


 


By and Between


 


Navtech Systems Support
Inc.


 


And


 


The Purchasers Referred
to Herein


 





















 


TABLE
OF CONTENTS


 


	
  Section 1.

  	
  Definitions

  	
   

  
	
  1A.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.

  	
  Authorization and Closing

  	
   

  
	
  2A.

  	
  Authorization, Purchase and
  Sale of the Notes

  	
   

  
	
  2B.

  	
  The Closing

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.

  	
  Conditions of Each
  Purchaser’s Obligations at the Closing

  	
   

  
	
  3A.

  	
  Representations and
  Warranties

  	
   

  
	
  3B.

  	
  Compliance with Covenants

  	
   

  
	
  3C.

  	
  Consents and Approvals

  	
   

  
	
  3D.

  	
  [Reserved]

  	
   

  
	
  3E.

  	
  Registration Rights Agreement

  	
   

  
	
  3F.

  	
  Parent Guaranty and
  Subsidiary Guaranty

  	
   

  
	
  3G.

  	
  Sale of Notes and Warrants
  to Each Other Purchaser

  	
   

  
	
  3H.

  	
  Consummation of EAG
  Acquisition

  	
   

  
	
  3I.

  	
  Equity Investment

  	
   

  
	
  3J.

  	
  No Material Adverse Effect

  	
   

  
	
  3K.

  	
  Closing Documents

  	
   

  
	
  3L.

  	
  Proceedings

  	
   

  
	
  3M.

  	
  Company Counsel Opinions

  	
   

  
	
  3N.

  	
  Commitment Fees; Closing
  Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.

  	
  Covenants

  	
   

  
	
  4A.

  	
  [Reserved.]

  	
   

  
	
  4B.

  	
  Restrictive Covenants

  	
   

  
	
  4C.

  	
  Affirmative Covenants

  	
   

  
	
  4D.

  	
  Financial Statements and
  Other Information

  	
   

  
	
  4E.

  	
  Use of Proceeds

  	
   

  
	
  4F.

  	
  Financial Covenants

  	
   

  
	
  4G.

  	
  [Reserved].

  	
   

  
	
  4H.

  	
  [Reserved].

  	
   

  
	
  4I.

  	
  Joinder of Additional
  Subsidiaries

  	
   

  
	
  4J.

  	
  Subordination Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.

  	
  Nature of Restricted
  Securities; Transfer of Restricted Securities; General Transfer Procedure

  	
   

  
	
  5A.

  	
  General Provisions

  	
   

  
	
  5B.

  	
  Legend Removal

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.

  	
  Representations
  and Warranties of the Company

  	
   

  
	
  6A.

  	
  Organization and
  Power

  	
   

  
	
  6B.

  	
  Capital
  Stock and Related Matters

  	
   

  



 


i





















 


	
  6C.

  	
  Subsidiaries;
  Investments

  	
   

  
	
  6D.

  	
  Authorization;
  Non-contravention

  	
   

  
	
  6E.

  	
  Absence of
  Undisclosed Liabilities

  	
   

  
	
  6F.

  	
  No Material
  Adverse Change

  	
   

  
	
  6G.

  	
  Absence of
  Certain Developments

  	
   

  
	
  6H.

  	
  Tax Matters

  	
   

  
	
  6I.

  	
  Litigation, etc

  	
   

  
	
  6J.

  	
  Brokerage

  	
   

  
	
  6K.

  	
  Compliance with Laws

  	
   

  
	
  6L.

  	
  Assets

  	
   

  
	
  6M.

  	
  Real Property

  	
   

  
	
  6N.

  	
  Contracts and
  Commitments.

  	
   

  
	
  6O.

  	
  Intellectual
  Property Rights

  	
   

  
	
  6P.

  	
  Insurance

  	
   

  
	
  6Q.

  	
  Employee Benefits

  	
   

  
	
  6R.

  	
  Employees

  	
   

  
	
  6S.

  	
  Environmental
  and Safety Matters.

  	
   

  
	
  6T.

  	
  Affiliated
  Transactions

  	
   

  
	
  6U.

  	
  Customers and
  Suppliers

  	
   

  
	
  6V.

  	
  Accounts Receivable

  	
   

  
	
  6W.

  	
  Governmental
  Consents

  	
   

  
	
  6X.

  	
  Representations
  and Warranties of SAS in the Acquisition Agreement

  	
   

  
	
  6Y.

  	
  Disclosure

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.

  	
  Redemption of
  the Notes

  	
   

  
	
  7A.

  	
  Mandatory Redemption

  	
   

  
	
  7B.

  	
  Optional Redemption

  	
   

  
	
  7C.

  	
  Special Redemptions.

  	
   

  
	
  7D.

  	
  Redemption Payments

  	
   

  
	
  7E.

  	
  Notice of Redemption

  	
   

  
	
  7F.

  	
  Interest
  After Redemption Date

  	
   

  
	
  7G.

  	
  Tax Gross-Up

  	
   

  
	
  7H.

  	
  Tax Gross-Up
  Adjustments

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.

  	
  Put Right

  	
   

  
	
  8A.

  	
  Put Events

  	
   

  
	
  8B.

  	
  Obligation After
  Notice

  	
   

  
	
  8C.

  	
  Closing

  	
   

  
	
  8D.

  	
  Prohibitions on
  Payment

  	
   

  
	
  8E.

  	
  Put Price

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.

  	
  Events of Default

  	
   

  
	
  9A.

  	
  Definition

  	
   

  
	
  9B.

  	
  Consequences
  of Events of Default Under the Notes

  	
   

  



 


ii





















 


	
  Section 10.

  	
  Miscellaneous

  	
   

  
	
  10A.

  	
  Commitment Fees;
  Expenses

  	
   

  
	
  10B.

  	
  Remedies;
  Survival of Representations, Warranties and Covenants; Indemnification

  	
   

  
	
  10C.

  	
  Purchaser’s
  Representations; Legends

  	
   

  
	
  10D.

  	
  Entire Agreement

  	
   

  
	
  10E.

  	
  Successors and
  Assigns

  	
   

  
	
  10F.

  	
  Counterparts

  	
   

  
	
  10G.

  	
  Descriptive
  Headings; Interpretation

  	
   

  
	
  10H.

  	
  Notices; Business
  Days

  	
   

  
	
  10I.

  	
  Consent to
  Amendments and Waivers

  	
   

  
	
  10J.

  	
  Severability

  	
   

  
	
  10K.

  	
  Construction

  	
   

  
	
  10L.

  	
  Incorporation
  of Annexes, Schedules and Exhibits

  	
   

  
	
  10M.

  	
  Registered
  Holders; Ownership

  	
   

  
	
  10N.

  	
  GOVERNING LAW

  	
   

  
	
  10O.

  	
  JURISDICTION AND
  VENUE

  	
   

  
	
  10P.

  	
  WAIVER OF RIGHT
  TO JURY TRIAL

  	
   

  
	
  10Q.

  	
  Confidentiality

  	
   

  
	
  10R.

  	
  Consideration for
  Notes

  	
   

  



 


iii





















 


NOTE PURCHASE AGREEMENT


 


NOTE PURCHASE AGREEMENT,
dated as of November 22, 2005 (this “Agreement”), by and among
Navtech Systems Support Inc., an Ontario corporation (the “Company”),
and the Persons listed on Annex 1 attached hereto (the “Purchasers”).  Unless otherwise indicated herein,
capitalized terms used in this Agreement have the meanings set forth in Section
1.


 


WHEREAS, the
Purchasers have agreed to purchase, and the Company has agreed to issue and
sell to the Purchasers, Notes of the Company; and


 


WHEREAS, pursuant
to a Warrant Agreement, dated as of the date hereof, the Purchasers have agreed
to purchase, and the Parent has agreed to issue and sell to the Purchasers,
Warrants of the Parent.


 


NOW, THEREFORE, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as follows:


 


Section 1.               Definitions.


 


1A.          Definitions.  For the purposes of this Agreement, the
following terms have the meanings set forth below:


 


“ABRY” means ABRY Mezzanine Partners, L.P.


 


“Accounts Receivable” has the meaning set forth
in Section 6V.


 


“Accrued Amount” means, for any Note at any
time, the principal amount of such Note, plus all accrued and unpaid interest
thereon.


 


“Acquisition Agreement” means that certain
Securities Purchase Agreement, dated as of the date hereof, by and among EAG
Holdco, the Parent and SAS, as in effect on the date hereof.


 


“Affiliate” of any particular Person means any
other Person controlling, controlled by or under common control with such
particular Person, where “control” means the possession, directly or
indirectly, of the power to direct the management and policies of a Person whether
through the ownership of voting securities, contract or otherwise.


 


“Agreement” has the meaning set forth in the
preamble of this Agreement.


 


“Articles” means the Certificate of
Incorporation of the Company, as amended, modified, restated, superseded or
replaced from time to time.


 


“Board of Directors” means the board of
directors of the Parent.


 





















 


“By-laws” means the by-laws of the Company, as
amended, modified, restated, superseded or replaced from time to time.


 


“Cambridge Information Group Preferred Stock”
means the Series A Convertible Participating Preferred Stock of the Parent,
$0.01 par value per share.


 


“Capital Lease(s)” means any lease of any
property (whether real, personal or mixed) that, in conformity with GAAP,
should be accounted for as a capital lease.


 


“Change of Control” shall be deemed to occur
(a) upon the consummation of a transaction, whether in a single transaction or
in a series of related transactions, pursuant to which a Person or group (as
that term is used in Section 13(d)(3) of the Exchange Act) of Persons acquire
assets constituting all or substantially all of the assets of the Company
Group, (b) if a Person or group of Persons (other than Cambridge Information
Group, Inc.) becomes the beneficial owner (whether by merger, consolidation,
reorganization, redemption, transfer or issuance of equity securities or
otherwise) of securities of the Parent (or any surviving or resulting
corporation) representing more than 50% of the combined voting power of the
outstanding securities of the Parent (or such surviving or resulting
corporation) ordinarily having the right to vote in the election of directors,
(c) if a majority of the members of the Board of Directors are not a sufficient
number to control and direct the operations and affairs of the Parent or (d) if
the Parent ceases to be the beneficial owner (whether by merger, consolidation,
reorganization, redemption, transfer or issuance of equity securities or
otherwise) of securities of the Company (or any surviving or resulting corporation)
representing 100% of the combined voting power of the outstanding securities of
the Company (or such surviving or resulting corporation) ordinarily having the
right to vote in the election of directors.


 


“Claim” means any action, claim, lawsuit,
demand, suit, charge, complaint, inquiry, hearing, investigation, notice of a
violation or noncompliance, litigation, proceeding, arbitration, appeals or
other dispute, whether civil, criminal, administrative or otherwise.


 


“Closing” has the meaning set forth in Section
2B.


 


“Closing Date” has the meaning set forth in Section
2B.


 


“COBRA” means the requirements of Part 6 of
Subtitle B of Title I of ERISA and Section 4980B of the Code and of any similar
state Law.


 


“Code” means the Internal Revenue Code of 1986,
as amended.


 


“Commitment Fee Amount” has the meaning set
forth in Section 10A.


 


“Commitment Letter” has the meaning set forth
in Section 10D.


 


“Common Stock” means the Parent’s common stock,
par value $0.001 per share, and any shares of any class of the Parent hereafter
authorized which is not limited to a fixed sum with respect to the rights of
the holders thereof to participate in dividends or in the distribution of
assets upon any liquidation, dissolution or winding up of the Parent.


 


2





















 


“Common Stock Equivalents” means any capital or
securities (other than Options) directly or indirectly convertible into or
exchangeable for Common Stock.


 


“Company Group” means the Parent, Company and
its Subsidiaries (which, for the avoidance of doubt and unless expressly stated
otherwise, shall include (i) EAG following the acquisition thereof by the
Company or any Affiliate thereof and (ii) any Subsidiary that becomes party
hereto in accordance with Section 4I); provided that the “Company
Group” shall not include EAG for purposes of Sections 3J and 6 herein.


 


“Company Intellectual Property Rights” has the
meaning set forth in Section 6O(i).


 


“Company Software” has the meaning set forth in
Section 6O(i).


 


“Consolidated” means, as applied to the Company
and its Subsidiaries, consolidated in accordance with GAAP.


 


“Consolidated EBITDA” means, for any 12-month
period, the Consolidated earnings of the Company Group for such period before
any provision for (i) interest expense paid in cash for such period and (ii)
amounts in respect of depreciation and amortization for such period, minus (x)
income Taxes for such period paid or required to be paid in cash within one (1)
year and minus (y) distributions and one time gains during such period, plus
any non-recurring extraordinary expenses, the exclusion of which from the
calculation of operating income has not been objected to by the Company Group’s
independent auditors or the addition of which the Majority Noteholders have approved
for purposes of computing Consolidated EBITDA, all of the foregoing determined
on a Consolidated basis in accordance with GAAP; provided that for
purposes of calculating Consolidated EBITDA hereunder, any income or losses
associated with foreign exchange rates and any expenses associated with the
issuance or exercise of any stock option, warrant or similar Equity Security
issued by the Company Group shall be disregarded.


 


“Debt Security” means any note, bond, debenture
or other instrument or security evidencing Indebtedness.


 


“EAG” means European Aeronautical Group AB, a
limited liability company with its registered address STOOV, S-19587 Stockholm,
Sweden, a company duly organized and registered under the Laws of Sweden, reg.
no. 556278-5864.


 


“EAG Holdco” means Navtech (Sweden) A.B.


 


“Employee Benefit Plan” means any “employee
benefit plan” (as such term is defined in Section 3(3) of ERISA and whether or
not such plan is subject to ERISA) and any other employee benefit plan, program
or arrangement of any kind.


 


“Environmental, Health, and Safety Requirements”
means all federal, state, provincial, territorial and local or municipal Laws
concerning public health and safety, worker health and safety, occupational
health and safety, product liability, pollution, or protection or preservation
of the environment, including all those relating to the presence, use,
production, generation, handling, transportation, treatment, storage, disposal,
distribution, labeling, testing,


 


3





















 


processing, discharge, release, threatened release, control, or cleanup
of any hazardous materials, substances, or wastes, as such requirements are
enacted and in effect on the Closing Date.


 


“Equity Security” means (i) any capital
stock or other equity security, or ownership interests (including limited
liability company, partnership and joint venture interests), (ii) any
security directly or indirectly convertible into or exchangeable for any
capital stock or other equity security or security containing any profit
participation features, (iii) any warrants, options or other rights,
directly or indirectly, to subscribe for or to purchase any capital stock,
other equity security or security containing any profit participation features
or directly or indirectly to subscribe for or to purchase any security directly
or indirectly convertible into or exchangeable for any capital stock or other
equity security or security containing profit participation features, and
(iv) any stock appreciation rights, phantom stock rights or other similar
rights.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended.


 


“Event of Default” has the meaning set forth in
Section 9A.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended, or any similar Law then in force and the rules and
regulations promulgated thereunder.


 


“Fiscal Quarter” means a fiscal quarter of the
Company ending on the last day of January, April, July or October of any Fiscal
Year.


 


“Fiscal Year” means a fiscal year of the
Company ending on October 31 of any calendar year.


 


“GAAP” means United States generally accepted
accounting principles as in effect from time to time, applied on a consistent
basis.


 


“Governmental Entity” means any agency,
division, subdivision, group or office of the United States of America or
Canada, any state, province, territory or other political subdivision thereof,
or any entity exercising executive, legislative, judicial, regulatory or
administrative functions of government, including any court.


 


“Guarantee” means any guarantee of the payment
or performance of any Indebtedness or other obligation and any other
arrangement whereby credit is extended to one obligor on the basis of any
promise of such Person, whether that promise is expressed in terms of an
obligation to pay the Indebtedness of such obligor, to provide reimbursement,
or to purchase an obligation owed by such obligor, or to purchase goods and
services from such obligor pursuant to a take-or-pay contract, or to maintain the
capital, working capital, solvency or general financial condition of such
obligor, whether or not any such arrangement is listed in the balance sheet of
such Person, or referred to in a footnote thereto, but shall not include
endorsements of items for deposit or collection in the Ordinary Course of
Business; and the term “Guaranteed” shall have a correlative meaning.


 


“Increase Period” has the meaning set forth in Section
9B(iv).


 


4





















 


“Incur” means, with respect to any Indebtedness
or other Liability of any Person, to create, issue, incur (including by
conversion, exchange or otherwise), assume, guarantee or otherwise become
liable in respect of such Indebtedness or other obligation or the recording, as
required pursuant to GAAP or otherwise, of any such Indebtedness or other
obligation on the balance sheet of such Person (and “Incurrence,” “Incurred”
and “Incurring” shall have meanings correlative to the foregoing).  The accrual of interest, the accretion or amortization
of original issue discount and, the payment of interest on any Indebtedness in
the form of additional Indebtedness with the same terms, will not be deemed to
be an Incurrence of Indebtedness.


 


“Indebtedness” of a Person means at a
particular time, without duplication, (i) any indebtedness for borrowed money
or issued in substitution for or exchange of indebtedness of such Person for
borrowed money, (ii) any indebtedness evidenced by any Debt Security of such
Person, (iii) any indebtedness for the deferred purchase price of property or
services with respect to which such Person is liable, (other than trade
payables and other current Liabilities Incurred in the Ordinary Course of
Business), (iv) any commitment by which such Person assures a creditor against
loss (including contingent reimbursement obligations with respect to letters of
credit), (v) any Indebtedness of other obligation of any other Person
Guaranteed in any manner by such Person (including Guarantees in the form of an
agreement to repurchase or reimburse), (vi) such Person’s obligations under
Capital Leases, (vii) any obligation secured by a Lien on such Person’s assets
or (viii) such Person’s redemption, repurchase or similar obligations in
respect of any Equity Security that has a scheduled maturity, repurchase or
redemption date, or the holder of which could require the issuer to repurchase,
redeem (other than by reason of a Change of Control), prior to the date that is
six (6) months after the Scheduled Redemption Date (the amount of which
obligations at such time shall be the amount that such person would be required
to pay if such maturity, redemption, repurchase or similar event were to occur
at such time).


 


“Indemnitees” has the meaning set forth in Section
10B.


 


“Intellectual Property Rights” means all (i)
patents, patent applications and patent disclosures; (ii) trademarks, service
marks, trade dress, trade names, logos, slogans, corporate names, Internet
domain names and registrations and applications for registration thereof,
together with all of the goodwill associated therewith (and all translations,
adaptations, derivations and combinations of the foregoing); (iii) copyrights
(registered or unregistered) and copyrightable works and registrations and
applications for registration thereof; (iv) mask works and registrations and
applications for registration thereof; (v) software (including source code and
executable code), firmware, data, databases and documentation thereof; (vi)
trade secrets and other confidential information (including ideas, formulas,
compositions, inventions (whether patentable or unpatentable and whether or not
reduced to practice), know-how, algorithms, financial models, manufacturing and
production processes and techniques, research and development information,
customer accounts, identifying information regarding customers, drawings,
specifications, designs, plans, proposals, technical data, financial and
marketing plans and customer and supplier lists and information);
(vii) domain names, (viii) other intellectual property or proprietary
rights; and (ix) copies and tangible embodiments thereof (in whatever form or
medium).


 


“Interest Rate Trigger Event” has the meaning
set forth in Section 9B(iv).


 


5





















 


“Investment” as applied to any Person means (i)
any direct or indirect purchase or other acquisition by such Person of any Debt
Securities, Equity Securities, obligations or instruments of any other Person
and (ii) any capital contribution, loan or advance by such Person to any other
Person.


 


“Junior Securities” means any Equity Securities
or Debt Securities of any member of the Company Group other than Senior Debt.


 


“Knowledge” means, with respect to any Person,
the actual knowledge of the chief executive officer, president or chief
financial officer of such Person (after making reasonable inquiry with respect
to the particular matter in question), and shall include, with respect to the
Knowledge of the Company Group, David Strucke and Gordon Heard so long as they
are the chief executive officer, president or chief financial officer (as
applicable) of the Company or Parent.


 


“Latest Balance Sheet” has the meaning set
forth in Section 2E(a)(ii) of
the Warrant Agreement.


 


“Laws” means all constitutions, statutes, laws,
codes, ordinances, regulations, rules, orders, judgments, writs, injunctions,
acts or decrees of any Governmental Entity.


 


“Leased Real Property” means all leasehold or
subleasehold estates and other rights to use or occupy any land, buildings,
structures, improvements, fixtures or other interest in real property held by
any member of the Company Group.


 


“Leases” means all leases, subleases, licenses,
concessions and other agreements (written or oral) pursuant to which any member
of the Company Group holds or is permitted to use or occupy any Leased Real
Property, including the right to all security deposits and other amounts and
instruments deposited by or on behalf of such member of the Company Group
thereunder.


 


“Legal Requirement” means any requirement
arising under any action, Law, treaty, determination or direction of an
arbitrator or Governmental Entity.


 


“Leverage Ratio” has the meaning set forth in Section
4F(i).


 


“Liability” means any liability, loss, expense
or obligation of whatever kind or nature (whether known or unknown, whether
assert or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability or obligation for Taxes.


 


“Lien” means, with respect to any Person, any
mortgage, pledge, restriction, security interest, hypothec, encumbrance,
option, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof), any sale of receivables
with recourse against such Person, any filing or agreement to file a financing
statement as debtor under the Uniform Commercial Code or any similar statute
(other than to reflect ownership by a third party of property leased to such
Person under a lease which is not in the nature of a conditional sale or title
retention agreement), or any subordination arrangement in


 


6





















 


favor of another Person (other than any subordination arising in the
Ordinary Course of Business).


 


“Line of Credit” has the meaning set forth in Section
4F(iii).


 


“Losses” has the meaning set forth in Section
10B.


 


“Malicious Code” has the meaning set forth in Section
6O(v).


 


“Majority Noteholders” means, at any time, the
holders of a majority of the principal amount of the Notes outstanding at such
time.


 


“Material Adverse Effect” means a material and
adverse effect upon the business, operations, assets, liabilities or financial
condition of the Company Group (excluding EAG, for purposes of Sections 3J
and 6), taken as a whole.


 


“Material Contracts” has the meaning set forth
in Section 6N.


 


“90 Day Period” has the meaning set forth in Section
9B(iv).


 


“Notes” has the meaning set forth in Section
2A(i).


 


“Officer’s Certificate” means, with respect to
any Person, a certificate of such Person signed on such Person’s behalf by such
Person’s president, its chief financial officer or of any other officer of such
Person whose responsibilities extend to the subject matter of such certificate.


 


“Optional Redemption Date” means November 22,
2007.


 


“Options” means any rights, warrants or options
directly or indirectly to subscribe for or purchase Common Stock or Common
Stock Equivalents.


 


“Ordinary Course of Business” means the
ordinary course of business consistent with past custom and practice (including
with respect to quantity and frequency) of the Person in question.


 


“Parent” means Navtech, Inc., a Delaware
corporation.


 


“Parent  Guaranty” has the meaning set
forth in Section 3F.


 


“Permitted Investments” means investments in
(a) direct obligations of the United States, Canada, France, the United
Kingdom, Sweden or any other country that is a member of the European Union or
the Organization for Economic Cooperation and Development (the “OECD”) or
any agency thereof, or obligations guaranteed by the United States, Canada,
France, the United Kingdom, Sweden or any other OECD country, or any agency
thereof, in each case maturing within one year from the date of acquisition
thereof, so long as such investments are consistent with investment policies
approved by the Board of Directors, (b) commercial paper maturing within one
year from the date of creation thereof rated at least A1 or the equivalent by


 


7





















 


Standard & Poor’s Corporation or P1 or the equivalent by Moody’s
Investors Service, Inc. at the time of the acquisition thereof, (c) deposits
maturing within one year from the date of creation thereof with, including
certificates of deposit issued by, any Lender or any office located in the
United States, Canada, France, the United Kingdom, Sweden or any other OECD
country, or any other bank or trust company which at the time of the
acquisition thereof (i) is organized under the Laws of the United States (or
any state thereof), Canada, France, the United Kingdom, Sweden or any other
OECD country, (ii) has capital, surplus and undivided profits aggregating at
least $500,000,000 (as of the date of such bank’s or trust company’s most
recent financial reports) and (iii) has a short-term deposit rating of no lower
than A-1 or P-1, as such rating is set forth from time to time, by Standard
& Poor’s Corporation or Moody’s Investors Service, Inc., respectively, (d)
deposits in money market funds investing exclusively in investments described
in clauses (a), (b) or (c) hereinabove and having a rating in the highest or
second highest investment category granted thereby by a nationally recognized
credit rating agency at the time of acquisition and (e) any other short-term
investments of cash not then needed for the Company Group’s operations and made
in accordance with investment policies approved by the Board of Directors.


 


“Permitted Liens” means (i) Liens with respect
to Taxes not yet due and payable or which are being contested in compliance
with Section 4C(vi); (ii) deposits or pledges made in connection with,
or to secure payment or performance of, bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds, utilities or
similar services, workers’ compensation, unemployment insurance, old age
pensions or other social security obligations; (iii) carriers’,
warehousemen’s, mechanics’, materialmen’s, contractors’ and other like Liens
imposed by Law securing payment for amounts not yet due and payable or which
are being contested in good faith by appropriate proceedings and for which
appropriate reserves have been established in accordance with GAAP; (iv)
purchase money Liens and Liens securing rental payments under Capital Lease arrangements;
(v) judgment Liens in respect of judgments that do not constitute an Event of
Default under Section 9A; (vi) easements, zoning restrictions,
rights-of-way and similar encumbrances on real property imposed by Law or
arising in the Ordinary Course of Business; (vii) Liens described on the “Assets
Schedule”; (viii) Liens securing Senior Debt Incurred in accordance with Section
4F(i); (ix) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date hereof
prior the time such Person becomes a Subsidiary, provided that such acquisition
is permitted under this Agreement and such Lien is not created in contemplation
of such Person becoming a Subsidiary or such acquisition, (x) leases of the
properties of the Company or any Subsidiary entered into in the Ordinary Course
of Business, (xi) Liens on property that is the subject of and are incurred in
connection with the conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any
Subsidiary in the Ordinary Course of Business, (xii) bankers’ Liens,
rights of setoff and other similar Liens existing solely with respect to cash
and cash equivalents on deposit in one or more accounts maintained by the
Company or any Subsidiary, in each case granted in the Ordinary Course of
Business in favor of the bank or banks with which such accounts are maintained,
(xiii) licenses of Intellectual Property Rights granted by the Company or any
Subsidiary in the Ordinary Course of Business, (xiv) Liens in existence on the
Closing Date and set forth on the “Permitted Liens Schedule”, and (xv)
extensions, renewals and replacements of any of the foregoing.


 


8





















 


“Person” means an individual, a partnership, a
corporation, a limited or unlimited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization or any
other similar entity or organization or a Governmental Entity.


 


“Potential Event of Default” means any event or
circumstance that, with the passage of time or the giving of notice, or both,
would constitute an Event of Default.


 


“Public Reports” has the meaning set forth in Section
2F(a) of the Warrant Agreement.


 


“Purchasers” has the meaning set forth in the
preamble of this Agreement.


 


“Put Notice” has the meaning set forth in
Section 8A of this Agreement.


 


“Redemption Date” as to any Note means the date
specified in the notice of any redemption at the Company’s option or at the
holder’s option or the applicable date specified herein in the case of any
other redemption; provided, that no such date shall be the Redemption
Date for such Note for purposes of Section 7F unless the Accrued Amount
of such Note (and any required premium with respect thereto, as Section 7
or Section 9B may require), is actually paid in full on such date, and
if not so paid in full, the Redemption Date shall be the date on which such
amount is fully paid.


 


“Redemption Notice Date” has the meaning set
forth in Section 7C.


 


“Registration Rights Agreement” means that
certain Registration Rights Agreement, dated as of the Closing Date, by and
among the Parent, the Series A Investors (as defined therein) party thereto and
the Purchasers, in the form of Exhibit B to the Warrant Agreement, as
amended, modified, restated, superseded or replaced from time to time.


 


“Rule 144” means Rule 144 adopted by the SEC
under the Securities Act (as such rule may be amended from time to time) or any
similar rule or regulation hereafter adopted by the SEC.


 


“Sarbanes-Oxley Act” has the meaning set forth
in Section 2F(b) of the Warrant Agreement.


 


“SAS” means SAS AB, a limited liability company
with its registered office at SE-195 87 Stockholm, a company duly organized and
registered under the Laws of Sweden, reg. no. 556606-8499.


 


“Scheduled Redemption Date” has the meaning set
forth in Section 7A.


 


“SEC” means the Securities and Exchange
Commission and any Governmental Entity succeeding to the functions thereof.


 


“Securities Act” means the Securities Act of
1933, as amended, or any similar Law then in force and the rules and
regulations promulgated thereunder.


 


9





















 


“Senior Debt” means any Indebtedness permitted
to be incurred pursuant to the terms hereof (including in compliance with the
covenants set forth in Section 4F) and as to which the Purchasers
execute a Subordination Agreement.


 


“Subordination Agreement” has the meaning set
forth in Section 4J.


 


“Subsidiary” means, with respect to any Person,
any corporation, limited or unlimited liability company, partnership,
association or other business entity of which (i) if a corporation or an
unlimited liability company, a majority of the total voting power of capital
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a
majority of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by any Person or one or
more Subsidiaries of that Person or a combination thereof.  For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a limited liability
company, partnership, association or other business entity if such Person or
Persons shall be allocated a majority of limited liability company,
partnership, association or other business entity gains or losses or shall be
or control any managing director or general partner of such limited liability
company, partnership, association or other business entity.  Unless otherwise specified, “Subsidiary”
means a Subsidiary of the Company; provided that EAG shall not be deemed
a “Subsidiary” for purposes of Sections 3J and  6 herein.


 


“Subsidiary  Guaranty” has the meaning
set forth in Section 3F.


 


“Tax” or “Taxes” means federal, state,
provincial, county, local, foreign or other income, gross receipts, ad valorem,
franchise, profits, goods and services, sales or use, transfer, registration,
excise, utility, environmental, communications, real or personal property,
capital stock, income, license, payroll, wage or other withholding, employment,
unemployment, social security, severance, stamp, occupation, alternative or
add-on minimum, estimated and other taxes of any kind whatsoever (including
deficiencies, penalties, additions to tax, and interest on or in respect of, or
in lieu of or for non-collection of, such taxes) whether disputed or not and
including any obligations to indemnify or otherwise assume or succeed to the
Tax Liability of any other Person.


 


“Tax Return” means any return, declaration,
report, claim for refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any amendment
thereof.


 


“Tranche A Notes” has the meaning set forth in Section
2A(i).


 


“Tranche B Notes” has the meaning set forth in Section
2A(i).


 


“Transaction Agreements” means this Agreement,
the Notes, the Warrant Agreement, the Warrants, the Registration Rights
Agreement, the Parent Guaranty, the Subsidiary Guaranty and all other agreements, certificates and
instruments executed and delivered in favor of any holders of the Notes by the
Parent or the Company or any of its Subsidiaries or any other Person in
connection with this Agreement.


 


10





















 


“Triggering Event” has the meaning set forth in
Section 8A.


 


“Triggering Event Value” means, with respect to
any share of Underlying Common Stock, the amount to which a holder of such
share of Underlying Common Stock would be entitled upon a liquidation of the
Parent, assuming that (a) all Options and Common Stock Equivalents that are
then in the money at the valuation described in clause (b)(i) below are
exercised, converted or exchanged in full, and (b) the aggregate amount to be
distributed upon such liquidation is an amount equal to the sum of (i) the
aggregate amount that a willing, fully-informed purchaser would pay a willing,
fully-informed seller or sellers for 100% of the outstanding Equity Securities
of the Parent in a single purchase, as determined by an independent appraiser
experienced in valuing companies such as the Parent jointly selected by the
Parent and the holders of a majority of the Underlying Common Stock and (ii)
the aggregate amount of the exercise price or other consideration payable upon
the exercise, conversion or exchange of all such in-the-money Options and
Common Stock Equivalents.  The determination
of the appraiser described in clause (b)(i) above shall be made without
the application of any discount for any holder’s minority position or lack of
liquidity and shall be final and binding upon the parties, and the fees and
expenses of such appraiser shall be borne by the Parent.


 


“Underlying Common Stock” means (i) the Common
Stock issued or issuable upon exercise of the Warrants, and (ii) any Common
Stock issued or issuable with respect to the securities referred to in clause
(i) above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.  For purposes of the
Transaction Agreements, any Person who holds any Warrants shall be deemed to be
the holder of the Underlying Common Stock issuable upon the exercise of such
Warrants regardless of any restriction or limitation on the exercise of such
Warrants and such Underlying Common Stock shall be deemed to be in existence
and outstanding, and such Person shall be entitled to exercise the rights of a
holder of such Underlying Common Stock hereunder.  All Underlying Common Stock held by Persons
who are Affiliates of each other shall be aggregated for purposes of meeting
any threshold tests under any Transaction Agreement.


 


“Warrants” has the meaning set forth in the
Warrant Agreement.


 


“Wholly-Owned Subsidiary” means, with respect
to any Person, a Subsidiary of which all of the outstanding capital or other
ownership interests are owned by such Person or another Wholly-Owned Subsidiary
of such Person.


 


Section 2.               Authorization and Closing.


 


2A.          Authorization, Purchase and Sale of
the Notes.


 


(i)            The
Company has duly authorized the issuance and sale, pursuant to the terms of
this Agreement, of its 9.0% Senior Subordinated Notes due 2011 in an aggregate
principal amount of $6.0 million and containing the terms and conditions and in
substantially the form set forth in Exhibit D attached hereto (the “Tranche
A Notes”) and its 12.5% Senior Subordinated Notes due 2011 in an aggregate
principal amount of $15.0 million and containing the terms and conditions and
in substantially the form set


 


11





















 


forth in Exhibit E attached hereto (the “Tranche B Notes”
and, together with the Tranche A Notes, the “Notes”).


 


(ii)           Subject
to the terms and conditions of this Agreement, at the Closing, the Company
shall issue and sell to each Purchaser and each Purchaser shall purchase from
the Company:  (i) a Tranche A Note
in the principal amount set forth opposite such Purchaser’s name on Annex 1
attached hereto under the heading “Tranche A Notes” and (ii) a
Tranche B Note in the principal amount set forth opposite such Purchaser’s name
on Annex 1 attached hereto under the heading “Tranche B Notes”.


 


2B.          The Closing.  The closing of the issuance, sale and
purchase of the Notes (the “Closing”) under this Agreement shall take
place at the offices of Kirkland & Ellis LLP, located at Citigroup Center,
153 East 53rd Street, New York, New York 10022 commencing at
9:00 a.m. local time on November 22, 2005 or on such other date as the
parties hereto may mutually determine in writing (the “Closing Date”).  At the Closing, the Company shall deliver to
each Purchaser the Notes to be purchased by such Purchaser, dated the date of
the Closing and registered in such Purchaser’s or its nominee’s name, in each
case against payment by such Purchaser to the Company by wire transfer of
immediately available funds of the aggregate principal amount of such Notes.


 


Section 3.               Conditions of Each Purchaser’s
Obligations at the Closing.  The
obligation of each Purchaser to purchase and pay for the Notes to be sold to
such Purchaser at the Closing shall be subject to the fulfillment at or prior
to the Closing of each of the following conditions, any and all of which may be
waived in whole or in part in writing by such Purchaser to the extent permitted
by applicable Law:


 


3A.          Representations and Warranties.  The representations and warranties contained
in Section 6 (i) that are not qualified as to materiality shall be true
and correct in all material respects and (ii) that are qualified as to
materiality shall be true and correct in all respects, in each case at and as
of the Closing as though then made and as though the Closing Date was
substituted for the date of this Agreement throughout such representations and
warranties (except to the extent that such representations and warranties
expressly relate to an earlier date).


 


3B.          Compliance with Covenants.  Each member of the Company Group shall have
duly performed or complied with, in all material respects, all of the
covenants, obligations and conditions required to be performed or complied with
by it under the terms of the Transaction Agreements on, prior to, or at the
Closing and shall be in compliance with, in all material respects, all of the
covenants, obligations and conditions to be complied with under the terms
thereof at the Closing.


 


3C.          Consents and Approvals.  Each member of the Company Group shall have
made all filings and shall have obtained and delivered to each Purchaser all
permits, authorizations, consents and approvals of any Governmental Entity
and/or third party required to be obtained by such member of the Company Group
to consummate the transactions contemplated to be consummated at the Closing by
this Agreement and the other Transaction Agreements.


 


12





















 


3D.          [Reserved].


 


3E.           Registration Rights Agreement.  The Registration Rights Agreement shall have
been executed and delivered by each party thereto and shall be in full force
and effect.


 


3F.           Parent Guaranty and Subsidiary
Guaranty.  The (i) Parent Guaranty,
dated as of the Closing Date, by and among the Parent and the Purchasers and
containing the terms and conditions and in substantially the form set forth in Exhibit
G-1 attached hereto (the “Parent Guaranty”) and (ii) Subsidiary
Guaranty, dated as of the Closing Date, by and among the Purchasers and each
Subsidiary party thereto and containing the terms and conditions and in
substantially the form set forth in Exhibit G-2 attached hereto (the “Subsidiary
Guaranty”) shall have been executed and delivered by each party thereto
and shall be in full force and effect.


 


3G.          Sale of Notes and Warrants to Each
Other Purchaser.  Contemporaneously
with the Closing, (i) the Company shall issue and sell to each other Purchaser
the Notes to be purchased by such other Purchaser under this Agreement and (ii)
the Parent shall issue to each Purchaser the Warrants to be issued to such
Purchaser under the Warrant Agreement.


 


3H.          Consummation of EAG Acquisition.  The conditions set forth in the Acquisition
Agreement shall have been satisfied (without giving effect to any waiver
thereof that has not been consented to by the Purchasers), and Navtech (Sweden)
A.B. shall have consummated (or shall consummate simultaneously with the
Closing) the acquisition of the shares of capital stock of EAG on the terms set
forth in the Acquisition Agreement.


 


3I.            Equity Investment.  The Persons set forth on the attached Schedule
3I shall have purchased (or shall purchase simultaneously with the Closing)
the Cambridge Information Group Preferred Stock in the amounts set forth on the
attached Schedule 3I for an aggregate purchase price of not less than
$3.5 million on terms and pursuant to documentation in form and substance
reasonably satisfactory to the Purchasers, and the proceeds of such shares
shall be used by the Company in connection with the acquisition of EAG.


 


3J.           No Material Adverse Effect.  No fact, event, circumstance, change,
development or occurrence shall have occurred which has had or could reasonably
be expected to have a Material Adverse Effect.


 


3K.          Closing Documents.  The Company shall have delivered to each
Purchaser all of the following documents:


 


(i)            an
Officer’s Certificate of the Company, dated the Closing Date, stating that each
of the conditions specified above in Section 3A through Section 3C,
Section 3H, Section 3I, and Section 3J is satisfied in all
respects;


 


(ii)           copies
of all filings, permits, authorizations, consents and approvals of any
Governmental Entity and/or third party (if any) required in connection with the
consummation at the Closing of the transactions contemplated by this Agreement
and the other Transaction Agreements;


 


13





















 


(iii)          a
certificate of each of the Parent’s and the Company’s secretary or assistant
secretary, dated the Closing Date, certifying as to the constating documents,
by-laws and resolutions attached thereto and other corporate proceedings
relating to the authorization, execution and delivery of the Transaction
Agreements; and


 


(iv)          such
other documents relating to the transactions contemplated by this Agreement or
the other Transaction Agreements as any Purchaser or its special counsel may
reasonably request.


 


3L.           Proceedings.  All corporate and other proceedings taken or
required to be taken by any member of the Company Group in connection with the
transactions contemplated hereby and by the other Transaction Agreements to be
consummated at or prior to the Closing and all documents incident thereto shall
be reasonably satisfactory in form and substance to each Purchaser and its
special counsel.


 


3M.         Company Counsel Opinions.  Each Purchaser shall have received an
executed copy of an opinion of Choate, Hall & Stewart LLP and of Cassels
Brock & Blackwell LLP, each dated the Closing Date.


 


3N.          Commitment Fees; Closing Expenses.  The Company shall have paid the Commitment
Fee Amount payable at the Closing and reimbursed each Purchaser for the
reasonable fees and expenses incurred by such Purchaser as of the Closing Date,
in each case as provided in Section 10A.


 


Section 4.               Covenants.  Except as otherwise set forth herein, the
covenants set forth in this Section 4 shall remain in full force so long
as any Note remains outstanding.


 


4A.          [Reserved.]


 


4B.          Restrictive Covenants.  The Company will not, and will not permit its
Subsidiaries to, take any of the following actions without the prior
authorization and approval of the Majority Noteholders:


 


(i)            sell,
lease or otherwise dispose of, (a) more than five percent of the consolidated
assets of the Company Group in the aggregate during any Fiscal Year or (b) more
than ten percent of the consolidated assets of the Company Group in the
aggregate (in each case computed on the basis of book value, determined in
accordance with GAAP consistently applied, or fair value, as reasonably
determined in good faith by the Board of Directors), unless the net proceeds
of such sale, lease or disposition are used to repay Senior Debt or, subject to
applicable Subordination Agreements, to redeem Notes pursuant to Section 7A
or 7B; provided, that the Company Group may sell, lease or
otherwise dispose of (A) obsolete or worn out property or assets, whether now
owned or hereafter acquired, in the Ordinary Course of Business, (B) inventory
in the Ordinary Course of Business, (C) property of any member of the Company
Group to any other member of the Company Group which is a Wholly Owned
Subsidiary, (D) property of the Company or any Subsidiary to the extent
permitted by Sections 4B(ii) and 4B(iv), (E) non-exclusive
licenses of Intellectual Property Rights in the Ordinary Course of Business


 


14





















 


and (F) property of the Company Group to holders of Senior Debt to the
extent required under the Senior Debt Documents;


 


(ii)           directly
or indirectly declare or pay any dividends or interest or make any
distributions upon, or redeem, repurchase or otherwise acquire, any Junior
Securities of any member of the Company Group, except for:  (1) deferred purchase price payments to SAS
in accordance with the Acquisition Agreement, (2) distributions or redemptions
paid by a Wholly-Owned Subsidiary of the Company to the Company or another
Wholly-Owned Subsidiary of the Company, (3) redemptions of the Notes, Warrants
or Underlying Common Stock in accordance with the Transaction Agreements, (4)
dividends paid by the Parent to holders of series A preferred stock of the
Parent at a rate not to exceed 5% per annum, (5) distributions by the Company
to the Parent to enable the Parent to pay the dividends referred to in clause
(4) of this paragraph and miscellaneous expenses in an aggregate amount that,
together with the aggregate amount of all payments described in clause (4),
does not exceed $250,000 during any Fiscal Year, (6) dividends with respect to
the capital stock of any member of the Company Group payable solely in
additional shares of capital stock of the same type and (7) redemptions or
repurchases of Equity Securities of Parent which do not require any member of
the Company Group to transfer any consideration (whether cash or otherwise)
other than nominal consideration in connection with such redemption or repurchase,
or which are effected through a cashless exercise, in each case made pursuant
to and in accordance with stock option plans or other benefit plans approved by
the Board of Directors for management or employees of the Company Group upon
the termination of employment of a director, officer or employee of the Company
Group, so long as, in each case described in clause (4) and (5) above, both before and after giving effect
to such payment, no Event of Default or Potential Event of Default is in
existence; provided that, with respect to redemptions or repurchases of Equity
Securities of the Company made pursuant to clause (7) above, any amounts paid
by any member of the Company Group in connection with such redemptions or
repurchases shall be deemed to have been paid from the proceeds of Indebtedness
Incurred by the Company in order to finance such redemptions or repurchases for
purposes of Section 4F(i);


 


(iii)          make
any Guarantee for the benefit of, or
Investment in, any Person (including any Guarantee by the Company or any if its
Subsidiaries of any Indebtedness of Parent), except for (1) reasonable advances by members of the
Company Group to employees of the Company Group in the Ordinary Course of
Business, (2) Permitted
Investments, (3) Investments in any Wholly-Owned Subsidiary of the
Company, (4) any Guarantee of the Notes or any Indebtedness of another
member of the Company Group (other than the Parent) incurred in compliance with
Section 4F(i); (5) operating deposit accounts in institutions
described in clause (c) of the definition of Permitted Investment, (6) hedging
agreements entered into in the Ordinary Course of Business with respect to the
Company’s or any Subsidiary’s financial planning and not for speculative
purposes, (7) Investments consisting of security deposits with utilities and
other like Persons made in the Ordinary Course of Business,
(8) Investments consummated to finance an acquisition permitted under Section
4B(vii) and (9) additional Investments up to but not exceeding $100,000 in
the aggregate in any Fiscal Year;


 


15





















 


(iv)          merge,
amalgamate or consolidate with any Person (other than (1) to the extent
permitted under Section 4B(vii), so long as the rights, obligations and
responsibilities of the Company or applicable Subsidiary continue in the
newly-formed entity, (2) in a merger, amalgamation or consolidation involving
only Wholly-Owned Subsidiaries of the Company or (3) in a merger, amalgamation
or consolidation in which the rights, obligations and responsibilities of the
Company or applicable Subsidiary continue in the newly-formed entity);


 


(v)           except
to the extent expressly permitted under this Section 4B, establish or acquire
any Subsidiary, other than a Wholly-Owned Subsidiary of the Company, or cause
or permit any Subsidiary to cease to be a Wholly-Owned Subsidiary of the
Company;


 


(vi)          enter
into, amend, modify or supplement, any agreement, transaction, commitment or
arrangement with any of such Person’s Affiliates (other than the Company or
another Subsidiary), except (1) in the Ordinary Course of Business and on
arms-length terms with persons other than Robert Snyder and his Affiliates and
(2) arrangements solely between or among members of the Company Group;


 


(vii)         acquire
or enter into an agreement to acquire, or permit any Subsidiary to acquire or
enter into an agreement to acquire, any interest in any company or business
(whether by a purchase of assets, purchase of stock, merger, amalgamation,
consolidation or otherwise) or enter into any joint venture, in each case
involving an aggregate consideration (including the assumption of Liabilities)
exceeding $4.0 million in the aggregate during any Fiscal Year (including in
the calculation of the amount of any acquisitions for the purpose of this Section
4B(vii), the amount of any acquisitions made by Parent in accordance with Section
3.3(v) of the Parent Guaranty during such Fiscal Year);


 


(viii)        engage
to any material extent in any business other than businesses of the type conducted
by the Company and the Subsidiaries on the date of this Agreement and
businesses reasonably related thereto;


 


(ix)           become
subject to (including by way of amendment to or modification of) any agreement
or instrument which by its terms would (under any circumstances) restrict (1)
the right of any member of the Company Group to make loans or advances or pay
interest to, transfer property to, or repay any amounts owed to any other
member of the Company Group or any Purchaser or (2) the ability of any member
of the Company Group to perform the material provisions of this Agreement or
any of the other Transaction Agreements (including provisions relating to the
redemption of the Notes and repayment of the principal amount of, and interest
on, the Notes); provided that the foregoing shall not apply to
(A) restrictions and conditions imposed by Law, the Transaction Agreements
or the Acquisition Agreement, (B) customary restrictions and conditions
contained in agreements relating to the sale or disposition of a Subsidiary
pending such sale or disposition, provided such restrictions and conditions
apply only to the Subsidiary that is to be sold or disposed and such sale or
disposition is permitted hereunder, (C) restrictions or conditions imposed
by the lender(s) under any agreement


 


16





















 


governing any Senior Debt and (D) customary provisions in leases
and other contracts restricting the assignment thereof;


 


(x)            in
the case of the Company only, effect a recapitalization or reorganization in
any form of transaction into a limited liability company, a partnership or any
other non-corporate entity, or otherwise become, an entity that is treated as a
partnership for federal income tax purposes;


 


(xi)           change
its fiscal year;


 


(xii)          Incur
any Senior Debt that is subordinated to other Senior Debt, other than
second-lien senior Indebtedness having customary terms for Indebtedness of such
type and that is subordinated only to first-lien Indebtedness that is Incurred
contemporaneously with such second-lien Indebtedness or that refinances or
replaces such first-lien Indebtedness; or


 


(xiii)         grant
or permit any Lien on any of its assets, other than Permitted Liens.


 


4C.          Affirmative Covenants.  The Company will, and will cause its Subsidiaries
to, take all of the following actions, unless otherwise waived with the prior
authorization and approval of the Majority Noteholders:


 


(i)            maintain
and keep their respective properties in good repair, working order and
condition (other than ordinary wear and tear), so that the business carried on
in connection therewith may be properly conducted at all times, provided that
this Section 4C(i) shall not prevent the Company or any Subsidiary from
discontinuing the operation and the maintenance of any of its properties if
such discontinuance is desirable in the conduct of its business and the Company
has concluded that such discontinuance could not reasonably be expected to have
a Material Adverse Effect;


 


(ii)           apply
for and maintain with financially sound and reputable insurance companies
adequate insurance covering risks of such types and in such amounts as are
customary for companies of similar size engaged in similar lines of business;


 


(iii)          at
all times maintain and preserve the Company’s corporate existence;


 


(iv)          except
to the extent permitted under Section 4B, the Company will at all times
maintain and preserve the corporate or limited liability company existence of
each Subsidiary and all rights and franchises of the Company and its
Subsidiaries unless, in the good faith judgment of the Company, the termination
of or failure to maintain and preserve such Subsidiary’s corporate or limited
liability company existence, or such rights or franchises, could not reasonably
be expected to have a Material Adverse Effect;


 


(v)           pay
and discharge when payable all amounts owed by the Company to the holders of
Notes and perform and comply with every covenant, term and


 


17





















 


condition applicable to the Notes, in each case in accordance with the
terms of this Agreement and the other Transaction Agreements;


 


(vi)          pay
and discharge all Taxes imposed by Governmental Entities upon its properties or
upon the income or profits therefrom, to the extent such Taxes have become due
and payable and before they have become delinquent, provided that neither the
Company nor any Subsidiary need pay any such Taxes if (i) the amount,
applicability or validity thereof is contested by the Company or such
Subsidiary on a timely basis in good faith and in appropriate proceedings, and
the Company or a Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of the Company or such Subsidiary or (ii) the
nonpayment of all such Taxes in the aggregate could not reasonably be expected
to have a Material Adverse Effect; and


 


(vii)         comply
with all applicable Laws of all Governmental Entities, in each case to the
extent that failure to so comply could not reasonably be expected to have a
Material Adverse Effect.


 


4D.          Financial Statements and Other
Information.  So long as any Notes
remain outstanding, the Company shall deliver, whether or not the Parent is
then required to file reports with the SEC pursuant to the terms of the
Exchange Act, to each holder of Notes:


 


(i)            as
soon as available but in any event within 45 days after the end of each
calendar month in each Fiscal Year, unaudited consolidating and consolidated
statements of income, cash flows and stockholders’ equity of the Company Group
for such month and for the period from the beginning of the Fiscal Year to the
end of such month, and unaudited consolidating and consolidated balance sheets
of the Company Group as of the end of such month, setting forth in each case
comparisons to the Company Group’s annual budget and to the corresponding
period in the preceding Fiscal Year, and all such items shall (a) be prepared
in accordance with GAAP, subject to the absence of footnote disclosures and to
normal year-end adjustments, (b) in the case of such items delivered at any
time prior to the second anniversary of the Closing Date, include separate
statements for each of the Company Group and EAG and (c) be certified on the
Parent’s behalf by an authorized officer of the Parent;


 


(ii)           as
soon as available but in any event within 45 days after the end of each Fiscal
Quarter in each Fiscal Year, unaudited consolidating and consolidated
statements of income, cash flows and stockholders’ equity of the Company Group
for such Fiscal Quarter and for the period from the beginning of the Fiscal
Year to the end of such Fiscal Quarter, and unaudited consolidated balance
sheets of the Company Group as of the end of Fiscal Quarter, setting forth in
each case comparisons to the Company Group’s annual budget and to the
corresponding period in the preceding Fiscal Year, and all such items shall (a)
be prepared in accordance with GAAP, subject to the absence of footnote
disclosures and to normal year-end adjustments, (b) in the case of such items
delivered at any time prior to the second anniversary of the Closing Date,
include separate statements for each of the Company Group and EAG, (c) be
certified on the Parent’s behalf by an authorized officer of the Parent and
(d) accompanied by a compliance certificate executed on the Parent’s behalf
by an authorized officer of the


 


18





















 


Parent (x) certifying compliance with the provisions of Section
4F(i) as of each Incurrence of Indebtedness during such Fiscal Quarter and
(y) certifying and demonstrating in reasonable detail compliance with the
provisions of Section 4F(ii) as of the end of such Fiscal Quarter; provided
that delivery within the time period specified hereinabove of copies of the
Parent’s Quarterly Report on Form 10-QSB prepared in compliance with the
requirements of such Form 10-QSB and filed with the SEC shall be deemed to
satisfy the requirements of this paragraph (ii); provided further that,
notwithstanding the foregoing proviso, the Company shall be required to provide
to the Purchasers the certificates described in clauses (c) and (d) above.


 


(iii)          within
90 days after the end of each Fiscal Year, unaudited consolidating and audited
consolidated statements of income, cash flows and stockholders’ equity of the
Company Group for such Fiscal Year, and unaudited consolidating and audited
consolidated balance sheets of the Company Group as of the end of such Fiscal
Year, setting forth in each case comparisons to the Company’s annual budget and
to the preceding Fiscal Year, and all such items shall (a) be prepared in
accordance with GAAP, (b) in the case of such items delivered at any time prior
to the second anniversary of the Closing Date, include separate statements for
each of the Company Group and EAG and (c) be accompanied by (1) with respect
to the consolidated portions of such statements, an opinion containing no
material exceptions or qualifications (except for qualifications regarding
specified contingent Liabilities) by Deloitte & Touche, LLP or other
independent accounting firm of recognized national standing and (2) a copy
of such firm’s annual management letter to the Parent; provided that
delivery within the time period specified hereinabove of copies of the Parent’s
Annual Report on Form 10-KSB prepared in compliance with the requirements of
such Form 10-KSB and filed with the SEC shall be deemed to satisfy the
requirements of this paragraph (iii); provided further that,
notwithstanding the foregoing proviso, the Company shall be required to provide
to the Purchasers the documents described in clause (c) above.


 


(iv)          promptly
upon receipt thereof, any additional reports, management letters or other
detailed information concerning significant aspects of any member of the
Company Group’s operations or financial affairs given to any member of the
Company Group by its independent accountants (and not otherwise contained in
other materials provided hereunder);


 


(v)           at
least 5 days but not more than 90 days prior to the beginning of each Fiscal
Year, an annual budget prepared on a monthly basis for the Company Group for
such Fiscal Year (displaying anticipated statements of income and cash flows
and balance sheets), and promptly upon preparation thereof, any other
significant budgets prepared by the Company Group and any revisions of such annual
or other budgets, in each case in substantially the same form and containing
substantially the types of information as delivered to the Purchasers prior to
the Closing, and in the case of such budgets or revisions thereof delivered at
any time prior to the second anniversary of the Closing Date, including
separate budgets or revisions thereof for each of the Company Group and EAG,
and within 30 days after any monthly period in which there is a material
adverse deviation from the annual budget, an Officer’s Certificate explaining
the


 


19





















 


deviation and what actions the Company Group has taken and proposes to
take with respect thereto;


 


(vi)          at
any time that the ABRY Director (as defined in the Warrant Agreement) is not a
member of the Board of Directors, promptly following the transmission thereof,
copies of all financial statements, proxy statements, reports and any other
general written communications which the Parent sends to its stockholders
generally or Board of Directors and copies of all prospectuses and disclosure
documents, if any, which it files, or any of its officers or managers file with
respect to the Company Group, with the SEC or
with any securities exchange on which any of its securities are then listed,
and copies of all press releases and other statements made available generally
by the Parent to the public concerning material developments in the Company
Group’s businesses; and


 


(vii)         as
promptly as practicable, such other information and financial data concerning
any member of the Company Group as any such holder may reasonably request.


 


Documents required to be delivered pursuant to this Section
4D may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date on which the Company delivers such documents
electronically.  Each of the financial
statements referred to in subparagraph (i), (ii) and (iii) shall be prepared in
accordance with GAAP and shall fairly present in all material respects the financial
position of the companies being reported upon as of the dates and for the
periods stated therein, subject in the case of the unaudited financial
statements to changes resulting from normal year-end adjustments.


 


4E.           Use of Proceeds.  The Company shall, and shall cause each other
member of the Company Group to, use the proceeds from the sale of the Notes and
the Warrants only to consummate the acquisition of EAG and to pay related fees
and expenses incurred in connection with this Agreement, the other Transaction
Agreements, and the transactions contemplated hereby and thereby.


 


4F.           Financial Covenants.  So long as any Note remains outstanding:


 


(i)            Leverage
Ratio.  Subject to Section 4F(iii),
the Company shall not, and shall not permit any other member of the Company
Group to, Incur any Indebtedness after the date hereof if, after giving effect
to the Incurrence of such Indebtedness, the ratio of (x) the aggregate
outstanding amount of Indebtedness of the Company Group determined on a
consolidated basis (including, for the purposes of this Section 4F, and
without duplication, the Accrued Amount of the Notes then outstanding and any
contingent or deferred purchase price payable by any member of the Company
Group pursuant to the Acquisition Agreement) to (y) Consolidated EBITDA
for the four Fiscal Quarters ending on the last day of the
then-most-recently-ended Fiscal Quarter (or, for purposes of Section 4F(ii),
ending on the last day of the Fiscal Quarter in question) (the “Leverage
Ratio” at such time) would be greater than (a) for any Incurrence of
Indebtedness in the Fiscal Year ending October 31, 2006, 3.0 to 1.0, (b) for
any Incurrence of Indebtedness in the Fiscal Year ending October 31, 2007, 2.25
to 1.0, and


 


20





















 


(c) for any Incurrence in the Fiscal Year ending October 31, 2008 or
thereafter, 1.75 to 1.0.


 


(ii)           Maximum
Leverage Ratio.  The Company shall
not permit the Leverage Ratio for the last day of any Fiscal Quarter to exceed
the maximum Leverage Ratio specified below for such Fiscal Quarter:


 


	
  Fiscal
  Quarter ending:

  	
   

  	
  Leverage
  Ratio

  
	
  January 31, 2006

  	
   

  	
  7.0 to 1.0

  
	
  April 30, 2006

  	
   

  	
  6.35 to 1.0

  
	
  July 31, 2006

  	
   

  	
  5.65 to 1.0

  
	
  October 31, 2006

  	
   

  	
  4.9 to 1.0

  
	
  January 31, 2007

  	
   

  	
  4.5 to 1.0

  
	
  April 30, 2007

  	
   

  	
  4.2 to 1.0

  
	
  July 31, 2007

  	
   

  	
  3.9 to 1.0

  
	
  October 31, 2007

  	
   

  	
  3.3 to 1.0

  
	
  January 31, 2008
  and thereafter

  	
   

  	
  2.5 to 1.0

  



 


(iii)          Notwithstanding
the provisions of Section 4F(i) above, at any time the Incurrence of
Indebtedness by any member of the Company Group would violate the provisions of
Section 4F(i) above, the Company may Incur Indebtedness pursuant to a
single line of credit or similar facility constituting Senior Debt (such
facility, the “Line of Credit”) up to an amount not to exceed $250,000,
including in the calculation of such $250,000 limit, all amounts then
outstanding under such Line of Credit; provided that, after giving effect to
the Incurrence of such Indebtedness under the Line of Credit, the Leverage
Ratio would not exceed the maximum Leverage Ratio permitted by Section  4F(ii)
for the then most recently ended Fiscal Quarter.  Any Indebtedness outstanding under the Line
of Credit shall be deemed to be outstanding for all purposes under this Section
4F.  For the avoidance of doubt, the
Company may not have more than one Line of Credit outstanding at any given
time.


 


(iv)          For
purposes of calculating Consolidated EBITDA or the Leverage Ratio under this
Agreement:


 


(a)           any
Person that is a Subsidiary of the Parent on the date of determination (or
would become a Subsidiary of the Parent on such date of determination in
connection with the matter that requires the determination of such Consolidated
EBITDA) will be deemed to have been a Subsidiary of the Parent at all times
during the relevant Fiscal Quarter period;


 


(b)           any
Person that is not a Subsidiary of the Parent on such date of determination (or
would cease to be a Subsidiary of the Parent on such date of determination in
connection with the matter that requires the determination of such Consolidated
EBITDA) will be deemed not to have been a Subsidiary of the Parent at any time
during the relevant Fiscal Quarter period; and


 


21





















 


(c)           any
member of the Company Group shall have in any manner (x) acquired an operating
business (including through an acquisition of an operating business or the
commencement of activities constituting such an operating business) or (y)
disposed of an operating business (including by way of a sale of assets or the
termination or discontinuance of activities constituting such an operating
business) during the relevant Fiscal Quarter period or after the end of such
period and on or prior to the relevant date of determination, such calculation
will be made on a pro forma basis
as if, in the case of an acquisition of or the commencement of activities
constituting such operating business, all such transactions had been
consummated on the first day of such four Fiscal Quarter period and, in the
case of a sale of assets or termination or discontinuance of activities
constituting such operating business, all such transactions had been
consummated prior to the first day of such period.


 


4G.          [Reserved].


 


4H.          [Reserved].


 


4I.            Joinder of Additional
Subsidiaries.  At any time following
the Closing, if the Company establishes or acquires a new Subsidiary, the
Company shall cause such Subsidiary to execute and deliver to the Purchasers a
joinder to the Subsidiary Guaranty, in form and substance reasonably
satisfactory to the Purchasers.


 


4J.           Subordination Agreements.  So long as any Notes remain outstanding, if
the Company at any time after the Closing authorizes the Incurrence of Senior
Debt in accordance with and as permitted under the terms of this Agreement, the
holders of Notes then outstanding shall negotiate in good faith and enter into
a subordination agreement with respect to such Senior Debt (each such
agreement, a “Subordination Agreement”) in form and substance reasonably
satisfactory to such holders of Notes.


 


Section 5.               Nature of Restricted Securities;
Transfer of Restricted Securities; General Transfer Procedure.


 


5A.          General Provisions.


 


(i)            Each
Purchaser acknowledges and agrees that the Notes it is purchasing are
characterized as “restricted securities” under the federal securities Laws inasmuch
as they are being acquired from the Company in a transaction not involving a
public offering and that under such Laws such securities may be resold without
registration under the Securities Act only in certain limited circumstances as
set forth in this Section 5.  In
the absence of an effective registration statement covering such securities or
an available exemption from registration under the Securities Act, the Notes
must be held indefinitely.  In this
connection, such Purchaser represents that it is familiar with Rule 144, as
presently in effect, and understands the resale limitations imposed thereby and
by the Securities Act, including the Rule 144 condition that current
information about the Parent be available to the public.


 


(ii)           The
Notes are transferable only pursuant to (a) public offerings registered under
the Securities Act, (b) Rule 144 or Rule 144A adopted by the SEC under


 


22





















 


the Securities Act or any similar rule or regulation hereafter adopted
by the SEC if the exemption from registration under such rule is available and
(c) any other legally available means of transfer.


 


5B.          Legend
Removal.  If the Notes become
eligible for sale pursuant to Rule 144(k) adopted by the SEC under the
Securities Act (as such rule may be amended from time to time) or any similar
rule or regulation hereafter adopted by the SEC or an effective registration
statement under the Securities Act, the Company shall, upon the request of the
holder of such securities, remove the legend set forth in Section 10C(ii)
of this Agreement from the certificates for such securities.


 


Section 6.               Representations
and Warranties of the Company.  As a
material inducement to the Purchasers to enter into this Agreement and purchase
the Notes hereunder, the Company hereby represents and warrants to each of the
Purchasers that the statements contained in this Section 6 are correct
and complete as of the date hereof (or as of the date as of which they are
made, in the case of any representation or warranty which specifically relates
to an earlier date) and will be correct and complete as of the Closing Date.


 


6A.          Organization
and Power.  The Company is a
corporation duly organized, validly existing and in good standing under the
Laws of the Province of Ontario, Canada and is qualified to do business in
every jurisdiction in which the failure to so qualify might reasonably be
expected to have a Material Adverse Effect. 
The Company has the corporate power and authority and all material
licenses, permits and authorizations necessary to own and operate its
properties, to carry on its businesses as now conducted and presently proposed
to be conducted, except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.  The copies of the Articles and By-laws which
have been furnished to Kirkland & Ellis LLP reflect all amendments made
thereto at any time prior to the date of this Agreement and are true, correct
and complete.  The minute books
(containing the records of meetings of the stockholders, the board of
directors, and any committees of the board of directors), the stock certificate
books, and the stock record books for each member of the Company Group are
correct and complete in all material respects. 
No member of the Company Group is in default under or in violation of
any provision of its formation documents or by-laws in any material respect.


 


6B.          Capital
Stock and Related Matters.  All of
the issued and outstanding Equity Securities of the Company are owned by the
Parent, free and clear of any Lien (other than Permitted Liens), and not
subject to any option or right to purchase any such shares.


 


6C.          Subsidiaries;
Investments.  Except as set forth on
the attached “Subsidiary Schedule”, and except for the acquisition of
securities of EAG as contemplated by the Acquisition Agreement, no member of
the Company Group owns or holds any Equity Securities in any other Person or
any rights to acquire any such Equity Securities other than Permitted
Investments.  Each Subsidiary is duly
organized, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation.  Each
Subsidiary possesses all requisite corporate power and authority and all
licenses, permits and authorizations necessary to own, pledge, mortgage or
otherwise encumber and operate its properties, to lease the property it
operates under lease and to carry on its businesses as now being conducted and
as presently proposed to be conducted and is qualified to do business in every
jurisdiction in which its ownership or lease


 


23





















 


of property or the
conduct of business requires it to qualify, except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.  Except as set forth on the
attached “Subsidiary Schedule,” all of the outstanding Equity Securities
of each Subsidiary are validly issued, fully paid and nonassessable, and all
such shares are owned by a member of the Company Group, free and clear of any
Lien and not subject to any option or right to purchase any such shares, other
than Permitted Liens.


 


6D.          Authorization;
Non-contravention.  The execution, delivery
and performance of this Agreement and the other Transaction Agreements to which
the Company or any Subsidiary is a party and the issuance of the Notes have
been duly authorized by applicable member of the Company Group.  This Agreement and the other Transaction
Agreements to which the Company or any Subsidiary is a party each constitutes a
valid and binding obligation of the Company and such Subsidiaries, enforceable
against the Company and such Subsidiaries in accordance with their respective
terms, except as may be limited by the equitable remedies of specific
performance, other equitable remedies or principles or Laws governing
creditors’ rights generally.  Neither the
execution and the delivery of this Agreement or any other Transaction Agreement
nor the consummation of the transactions contemplated hereby or thereby
(including the issuance of the Notes), (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any Government Entity to which the Company or any Subsidiary is
subject, except to the extent that such violation could not reasonably be
expected to have a Material Adverse Effect, or any provision of the
constitutive documents or by-laws of the Company or any Subsidiary, or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, or create in any party the right to accelerate, terminate, or
cancel, any material and written agreement, contract, lease, license or instrument
to which the Company or any Subsidiary is a party or by which it is bound or to
which any of its assets is subject (or result in the imposition of any Lien
upon any of its assets, other than Permitted Liens).  No member of the Company Group is required to
give any notice to, make any filing with, or obtain any authorization, consent,
or approval of any Government Entity or any other Person for it to consummate
the transactions contemplated by this Agreement or any other Transaction
Agreement, except for such as have been made or obtained and except as may be
required by applicable Laws.


 


6E.           Absence
of Undisclosed Liabilities.  No
member of the Company Group has any known Liability other than Liabilities set
forth on the Latest Balance Sheet or arising in the Ordinary Course of Business
since the date thereof, except for Liabilities for transaction costs and
expenses in connection with the Acquisition Agreement, the Transaction
Agreements and the transactions contemplated thereby.


 


6F.           No
Material Adverse Change.  Except as
set forth on the “No Material Adverse Effect Schedule” or as disclosed
in the Public Reports, since July 31, 2005, there has been no Material
Adverse Effect.  As of the date of this
Agreement, no Event of Default or Potential Event of Default has occurred and
is continuing.


 


6G.          Absence
of Certain Developments.  Except as
expressly contemplated by this Agreement or as set forth on the attached “Developments
Schedule,” since the date of the Latest Balance Sheet, no member of the
Company Group has operated its business or engaged in


 


24





















 


any material
transaction other than in the Ordinary Course of Business, except for the
Acquisition Agreement, the Transaction Agreements and the transactions contemplated
thereby.


 


6H.          Tax
Matters.  Each member of the Company
Group has filed all material Tax Returns required to be filed under applicable
Laws, and has paid all Taxes imposed by Governmental Entities upon its
properties or upon the income or profits therefrom, to the extent such Taxes
have become due and payable and before they have become delinquent, except to
the extent that (i) the amount, applicability or validity thereof is contested
by a member of the Company Group on a timely basis in good faith and in
appropriate proceedings, and such member of the Company Group has established
adequate reserves therefor in accordance with GAAP on the books of such member
of the Company Group, or (ii) the nonpayment of all such Taxes in the aggregate
could not reasonably be expected to have a Material Adverse Effect.  To the Company’s Knowledge, there are no
Liens for Taxes (other than Permitted Liens) upon any of the assets of any
member of the Company Group.  Each member
of the Company Group has withheld and paid over to the appropriate taxing
authority all Taxes which it is or was required to withhold from amounts paid
or owing to any employee, stockholder, creditor or other third party.


 


6I.            Litigation,
etc.  Except as set forth on the
attached “Litigation Schedule,” or as described in Item 103 of any
Public Reports, there are no Claims pending or, to the Company’s Knowledge
(which, for purposes of this Section 6I, shall not require or include any
inquiry), threatened against or affecting any member of the Company Group at
law or in equity, or before or by any Governmental Entity (including any Claim
with respect to the transactions contemplated by this Agreement and the other
Transaction Agreements), that could reasonably be expected to have or result in
a Material Adverse Effect.  No member of
the Company Group is subject to any judgment, order or decree of any court or
other Governmental Entity (other than any such item that is not in effect as of
the Closing Date and that could not reasonably be expected to have a Material
Adverse Effect).


 


6J.           Brokerage.  Except as set forth on the attached “Brokerage
Schedule,” there are no claims for brokerage commissions, finders’ fees or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement binding upon any member of the
Company Group.  The Company Group shall
pay, and hold each Purchaser harmless against, any Liability (including
attorneys fees and out-of-pocket expenses) arising in connection with any such
claim.


 


6K.          Compliance
with Laws.  No member of the Company
Group has violated or is in violation of any Law, and no member of the Company
Group has received written notice of any such violation from a Government
Entity, which violation could reasonably be expected to have a Material Adverse
Effect.


 


6L.           Assets.  Except as set forth on the attached “Assets
Schedule” or as described in the Public Reports, each member of the Company
Group has good and sufficient title to, or a valid leasehold interest in, the
material properties and assets (other than real property) used by it, located
on its premises or shown on the Latest Balance Sheet or acquired by them
thereafter, free and clear of all Liens, except for properties and assets
(other than real property) sold or otherwise disposed of in the Ordinary Course
of Business since the date of the Latest Balance Sheet and except for Permitted
Liens.  Each member of the Company Group


 


25





















 


owns, or has a
valid leasehold interest in, all assets necessary for the conduct of its
business as presently conducted and as presently proposed to be conducted,
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


6M.         Real
Property.


 


(i)            Leased
Real Property.  The Company has made
available to Purchasers a true and complete copy of each written Lease
document.  Except as set forth in the
“Real Property Schedule”, with respect to each of such written Leases: (a) the
consummation of the transactions contemplated by this Agreement do not require
the consent of any other party to such Lease, and will not result in a breach
of or default under such Lease; (b) such member of the Company Group’s
possession and quiet enjoyment of the Leased Real Property under such Lease has
not been disturbed, and to the Company’s actual knowledge, there are no
material disputes with respect to such Lease; (c) the other party to such Lease
is not an Affiliate of, and otherwise does not have any economic interest in,
any member of the Company Group; and (d) no member of the Company Group has
collaterally assigned or granted any other security interest in such Lease or
any interest therein.


 


(ii)           Company
Real Property.  The Leased Real
Property comprise all of the real property used in, or otherwise related to,
the business of the Company Group.


 


6N.          Contracts
and Commitments.All of the contracts, agreements and instruments required
to be set forth as an exhibit to the Public Reports (the “Material Contracts”)
are valid, binding and enforceable in accordance with their respective terms,
except as enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other Laws affecting creditors’ rights generally
and except insofar as the availability of equitable remedies may be limited by
applicable Laws.  Each member of the
Company Group has performed all material obligations required to be performed
by it under the Material Contracts to which it is a party and is not in material
default under or in material breach of nor has Knowledge of any claim of
material default or material breach under any such contract; no event has
occurred which with the passage of time or the giving of notice or both would
result in a material default, breach or event of noncompliance by any member of
the Company Group under any Material Contract to which it is a party.  The Company has no actual knowledge of any
breach or anticipated breach by the other party to any Material Contract to
which any member of the Company Group is a party.


 


6O.          Intellectual
Property Rights.


 


(i)            The
attached “Intellectual Property Schedule” contains a complete and
accurate list as of the Closing Date of (1) all of the following owned or
exclusively licensed by any member of the Company Group: (a) patented or
registered Intellectual Property Rights, (b) pending patent applications and
applications for registration of any Intellectual Property Rights, and (c)
material trade names and material unregistered trademarks or service marks; and
(2) all material computer software owned or distributed by any member of the
Company Group (“Company Software”). 
The Company Group owns all right, title and interest in and to, or has
the right to use pursuant to an agreement


 


26





















 


set forth on the “Intellectual Property Schedule”, all
Intellectual Property Rights used in, or to the Company’s Knowledge necessary
for, the operation of the businesses of the Company Group as now conducted and
presently proposed to be conducted or which are purported to be owned by the
Company Group, free and clear of all Liens (together with all other
Intellectual Property Rights owned by the Company Group, the “Company
Intellectual Property Rights”). 
Except as set forth on the “Intellectual Property Schedule”, the
Company Group has not licensed any Company Intellectual Property Rights to any
Person except on a non-exclusive basis in the Ordinary Course of Business.  The Company Group has delivered to the
Purchasers true, correct and complete copies of the customer agreements with
the Company Group’s current top twenty five customers (determined by aggregate
revenue paid to the Company Group by the customer as of July 31, 2005).


 


(ii)           The
Company Software is not subject to any “copyleft” or other obligation or
condition (including any obligation or condition under any “open source”
license such as the GNU Public License, Lesser GNU Public License, or Mozilla
Public License) that purports to (x) require, or condition the use or
distribution of such software, on the disclosure, licensing, or distribution of
any source code for any portion of such software or (y) otherwise impose any
limitation, restriction, or condition on the right or ability of any member of
the Company Group to use, license or distribute any software owned or
distributed by any member of the Company Group.


 


(iii)          Except
as set forth on the “Intellectual Property Schedule”, (a) there are no
currently pending or threatened or unresolved Claims against any member of the
Company Group that were either made within the past six (6) years or are
presently pending contesting the validity, use, ownership or enforceability of
any Company Intellectual Property Rights owned by any member of the Company
Group, and, to the Company’s Knowledge, there is no reasonable basis for such
Claim, (b) to the Company’s Knowledge, the Company Group has not infringed,
misappropriated or otherwise conflicted with, and the operation of the
businesses of the Company Group as now conducted and presently proposed to be
conducted do not and will not infringe, misappropriate, or conflict with, any
Intellectual Property Rights of any other Persons, and the Company Group has
not received any notices regarding any of the foregoing (including any demands
or offers to license any Intellectual Property Rights from any Person), and the
Company Group is not aware of any facts or circumstances that indicate a
likelihood of any of the foregoing, and (c) to the Company’s Knowledge, no
Person has infringed, misappropriated or otherwise conflicted with any of the
Company Intellectual Property Rights. 
The Company Group has taken all reasonably necessary action to maintain
and protect all of the Company Intellectual Property Rights.  All Company Intellectual Property Rights
shall be owned or available for use by the member(s) of the Company Group, as
applicable, immediately after the Closing on terms and conditions substantially
similar to those under which such member(s) of the Company Group owned or used
such Intellectual Property Rights immediately prior to Closing.


 


(iv)          Except as
set forth on the “Intellectual Property Schedule”, (a) only the object
code relating to any Company Software has been disclosed to any third party
(except to a source code escrow agent for the benefit of customers in the
Ordinary


 


27





















 


Course of Business);and (b) no Person has asserted any right to access
any source code for any Company Software, including, without limitation, pursuant
to a source code escrow agreement.  No
source code licensed to any Person as disclosed on the “Intellectual
Property Schedule” is material to the current businesses of the Company
Group.


 


(v)           To the
Company’s Knowledge, all products of the Company Group (and all parts thereof)
are free of any disabling codes or instructions and any “back door,” “time
bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other software
routines or hardware components that permit unauthorized access or the unauthorized
disablement or erasure of such product (or parts thereof) or data or other
software of users of the Company Group’s products or the software owned,
distributed or maintained by the Company Group (collectively, “Malicious
Code”) and the Company Group uses commercially reasonable efforts to insure
that its products are free of such Malicious Code.  The Company Group is in possession of the
source and object code for all software owned by the Company and, to the extent
necessary for the conduct of the businesses of the Company Group as now
conducted and presently proposed to be conducted, for all third party software
incorporated into any Company Group products, and copies of all other material
related thereto, except for those materials where Company Group’s failure to
possess such materials would not be reasonably expected to have a Material
Adverse Effect.


 


(vi)          Except as
set forth on the “Intellectual Property Schedule,” all past and present
employees of, and consultants to, the Company Group have entered into
agreements pursuant to which such employee or consultant agrees to protect the
confidential information of the Company Group and assign (and/or, with respect
to consultants, grant a perpetual license sufficient to enable the Company
Group to conduct their businesses as now conducted and presently proposed to be
conducted) to the Company Group, as applicable, all Intellectual Property
Rights authored, developed or otherwise created by such employee or consultant
in the course of his or her relationship with the Company Group, without any
restrictions or obligations on the use of any such Intellectual Property Rights
assigned to any member of the Company Group, and/or with respect to such
Intellectual Property Rights licensed to any member of the Company Group,
subject only to commercially reasonable and customary restrictions and
obligations.


 


(vii)         The
Company Group is in compliance with any privacy policies or similar policies,
programs or other notices and all applicable Laws that concern the Company
Group’s use, disclosure, retention or protection of personal information.


 


6P.           Insurance.  The attached “Insurance Schedule”
lists each insurance policy maintained by the Company Group with respect to
their properties, assets and businesses (other than insurance relating to
employee benefits) on the Closing Date, and each such policy is in full force
and effect as of such date.  No member of
the Company Group is in default with respect to its obligations under any
insurance policy maintained by it, except to the extent that such default could
not reasonably be expected to have a Material Adverse Effect.


 


28





















 


6Q.          Employee
Benefits.


 


(i)            No member
of the Company Group has any obligation to contribute to (or any other
Liability, including current or potential withdrawal liability, with respect
to) any “multi-employer plan” (as defined in Section 3(37) of ERISA and whether
or not such plan is subject to ERISA), or any “defined benefit plan” (as
defined in Section 3(35) of ERISA), whether or not terminated.


 


(ii)           No member
of the Company Group maintains or has any obligation to contribute to (or any
other Liability with respect to) any plan or arrangement whether or not
terminated, which provides medical, health, life insurance, dental, sickness,
accident, disability, retirement, savings or other welfare-type benefits for
current or future retired or terminated employees (except for limited continued
medical benefit coverage required to be provided under COBRA).


 


(iii)          Except
as set forth on the “Employee Benefits Schedule” or as described in the
Public Reports, on the Closing Date no member of the Company Group maintains,
contributes to or have any Liability under (or with respect to) any employee
plan which is a “defined contribution plan” (as defined in Section 3(34) of
ERISA and whether or not such plan is subject to ERISA), whether or not
terminated.


 


(iv)          Except as
set forth on the “Employee Benefits Schedule” or described in the Public
Reports, on the Closing Date no member of the Company Group maintains,
contributes to or has any Liability under (or with respect to) any Employee
Benefit Plan providing benefits to current or former employees, including any
bonus plan, plan for deferred compensation, employee health or other welfare
benefit plan or other arrangement, whether or not terminated.


 


(v)           The
Employee Benefit Plans of the Company Group and all related trusts, insurance
contracts and funds have been maintained, funded and administered in accordance
with their terms and have complied in form and in operation in all material
respects with the applicable requirements of ERISA, the Code and other
applicable Laws.  The requirements of
COBRA have been met in all material respects with respect to each Employee
Benefit Plan which is an “employee welfare benefit plan” (as such term is
defined in Section 3(1) of ERISA) which is subject to COBRA.


 


(vi)          Each of the
Employee Benefit Plans which is intended to be qualified under Section 401(a)
of the Code has received a favorable determination from the Internal Revenue
Service that such Employee Benefit Plan is qualified under Section 401(a) of
the Code, and there are no circumstances which could reasonably be expected to
adversely affect the qualified status of any such Employee Benefit Plan.  All such Employee Benefit Plan have been or
will be timely amended for the requirements of the Tax legislation commonly
known as “GUST” and have been or will be submitted to the Internal Revenue
Service for a favorable determination letter within the remedial amendment
period prescribed by GUST.


 


29





















 


6R.          Employees.  With respect to the business of the Company
Group:


 


(i)            to the
Knowledge of the Company, no executive (other than Derek Dawson) of the Company
Group (1) has any present intention to terminate his or her employment, or (2)
is a party to any confidentiality, non-competition, proprietary rights or other
such agreement between such executive and any Person that would be material to
the performance of such executive’s employment duties, or the ability of any
member of the Company Group to conduct the business of such member;


 


(ii)           except as
set forth on the attached “Employees Schedule” no labor organization or
group of employees has filed any application for certification or
representation petition or made any written or oral demand for recognition;


 


(iii)          to
the Knowledge of the Company (which, for purposes of this Section 6R,
shall not require or include any inquiry), no union organizing or
decertification efforts are underway or threatened and no other question
concerning representation exists; and


 


(iv)          no labor
strike, work stoppage, slowdown, or other material labor dispute has occurred,
and none is underway or, to the Knowledge of the Company (which, for purposes
of this Section 6R, shall not require or include any inquiry),
threatened.


 


6S.           Environmental
and Safety Matters.


 


(i)            The
Company Group is in compliance with Environmental, Health, and Safety
Requirements, except for such non-compliance as could not reasonably be
expected to have a Material Adverse Effect.


 


(ii)           The
Company Group has not received any written notice, report or other information
in writing regarding (a) any actual or alleged material violation by any member
of the Company Group of Environmental, Health, and Safety Requirements, or (b)
any material liabilities (whether accrued, absolute, contingent, unliquidated
or otherwise), including any investigatory, remedial or corrective obligations,
relating to the Company Group or their facilities arising under Environmental,
Health, and Safety Requirements, except for such non-compliance as could not
reasonably be expected to have a Material Adverse Effect.


 


6T.          Affiliated
Transactions.  Except as set forth on
the attached “Affiliated Transactions Schedule” and except as described
in the Public Reports, as of the Closing Date, no officer, director or
Affiliate of any member of the Company Group is a party to any material written
agreement, contract, commitment or transaction with any member of the Company
Group or has any material interest in any property used by any member of the
Company Group.


 


6U.          Customers
and Suppliers.


 


(i)            The “Customers
Schedule” lists the 20 largest customers of the Company Group (on a
consolidated basis) for each of the two most recent Fiscal Years


 


30





















 


and sets forth opposite the name of each such customer the percentage
of consolidated net sales attributable to such customer.


 


(ii)           The “Suppliers
Schedule” lists the 10 largest suppliers of the Company Group (on a
consolidated basis) for each of the two most recent Fiscal Years and sets forth
opposite the name of each such supplier the amount of pre-tax expenditures
attributable to such supplier during the periods specified in the Suppliers
Schedule.


 


(iii)          Since
the date of the Latest Balance Sheet, no supplier listed on the “Suppliers
Schedule” has indicated in writing that it shall stop, or materially decrease
the rate of, supplying materials, products or services to the Company Group,
and (except as disclosed on the Customer Schedule) no customer listed on the “Customer
Schedule” has indicated in writing that it shall stop, or materially
decrease the rate of, buying materials, products or services from the Company
Group.


 


6V.          Accounts
Receivable.  Except as set forth on
the attached “Accounts Receivable Schedule”, all accounts receivable and
other receivables, billed and unbilled, and all negotiable instruments, or
other instruments and chattel paper, as are payable to the Company Group
(collectively, the “Accounts Receivable”) have arisen in the Ordinary
Course of Business in bona fide transactions.


 


6W.         Governmental
Consents.  No material permit,
consent, approval or authorization of, or declaration to or filing with, any
Governmental Entity is required in connection with the execution, delivery and
performance by each member of the Company Group of this Agreement and the other
Transaction Agreements to which such member of the Company Group is a party,
except for such as have been obtained and except for filings required by
applicable securities Laws.


 


6X.          Representations
and Warranties of SAS in the Acquisition Agreement.  To the Company’s actual knowledge, the
representations and warranties of SAS contained in Article 2 of the Acquisition
Agreement are true and correct as of the date hereof.


 


6Y.          Disclosure.  This Agreement, the other Transaction
Agreements and the exhibits, schedules, certificates and other documents
prepared by or on behalf of the Company and delivered on or before the date
hereof to any Purchaser in connection with the transactions contemplated hereby
and thereby, taken as a whole, do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements contained therein, in the light of circumstances under which they
were made, not misleading; provided, that with respect to projected financial
information, the Company represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.  There is no fact known to the Company that
could reasonably be expected to have a Material Adverse Effect that has not
been set forth herein or in the Public Reports, other documents, certificates
and other writings delivered to the Purchasers by or on behalf of the Company
specifically for use in connection with the transactions contemplated by the
Transaction Agreements.


 


31





















 


Section 7.               Redemption
of the Notes


 


7A.          Mandatory
Redemption.  On the sixth anniversary
of the Closing Date (the “Scheduled Redemption Date”), the Company shall
redeem all outstanding Notes at a price for each Note equal to its Accrued
Amount.


 


7B.          Optional
Redemption.


 


(i)            On or
after the Closing Date and prior to the second anniversary thereof, the Company
may redeem the Tranche A Notes at any time in whole, or from time to time in
part, in aggregate principal amounts of not less than $500,000 and in increments
of $100,000, at a redemption price equal to the Accrued Amount as of the date
of such redemption of the Tranche A Notes to be redeemed.  At any time following the Optional Redemption
Date, the Company may redeem, in whole and not in part, all Tranche A Notes
then outstanding (together with all Tranche B Notes then outstanding, pursuant
to Section 7B(ii)), at a price for each Tranche A Note equal to the
Accrued Amount for such Tranche A Note multiplied by the applicable percentage
set forth in Section 7B(ii) below for the date of redemption.


 


(ii)           No Tranche
B Note may be redeemed at the election of the Company prior to the Optional
Redemption Date.  At any time following
the Optional Redemption Date, the Company may redeem, in whole and not in part,
all Tranche B Notes then outstanding (together with all Tranche A Notes then
outstanding, pursuant to Section 7B(i)), at a price for each Tranche B
Note equal to the Accrued Amount for such Tranche B Note multiplied by the
applicable percentage below for the date of redemption:


 


	
  Date
  of Redemption

  	
   

  	
  Percentage
  of Accrued Amount

  
	
  After the
  second, and up to and including the third, anniversary of the Closing Date

  	
   

  	
  105%

  
	
  After the third,
  and up to and including the fourth, anniversary of the Closing Date

  	
   

  	
  103%

  
	
  After the
  fourth, and up to and including the fifth, anniversary of the Closing Date

  	
   

  	
  101%

  
	
  Thereafter

  	
   

  	
  100%

  



 


7C.          Special
Redemptions.


 


(i)            If a
Change of Control occurs or the Company or the Parent obtains knowledge that a
Change of Control is proposed to occur, the Company shall give prompt written
notice of such actual or proposed Change of Control describing in reasonable
detail the material terms and date of consummation thereof to each holder of
Notes, but in any event such notice shall not be given later than thirty days
prior to the occurrence of such Change of Control, and the Company shall give
each holder of Notes prompt written notice of any material change in the terms
or timing of such transaction.  Any holder
of Notes may require the Company to redeem all or any portion of the Notes
owned by such holder at a price for each Note equal to (a) 110% of the Accrued
Amount


 


32





















 


thereof as of the date of such redemption of the Notes to be
redeemed,  if the Change of Control
occurs at any time prior to and including the second anniversary of the Closing
Date and (b) the Accrued Amount thereof as of the date of such redemption for
each Note to be redeemed, multiplied by the applicable percentage set forth in Section
7B(ii) above for the date upon which such Change of Control occurs
(regardless of the date upon which such redemption occurs), by giving written
notice to the Company of such election prior to the later of (x) 21 days after
receipt of the Company notice and (y) five days prior to the consummation of
the Change of Control (the “Redemption Notice Date”).  The Company shall give prompt written notice
of any such election to all other holders of Notes within five days after the
receipt thereof, and each such holder shall have until the later of (a) such
date which is as soon as practicable following the occurrence of the Change of
Control or (b) ten days after receipt of such second notice to request
redemption pursuant to this Section 7C(i) (by giving written notice to
the Company) of all or any portion of the Notes owned by such holder.


 


(ii)           Upon
receipt of such election(s), the Company shall be obligated to redeem the Notes
specified therein on the occurrence of the Change of Control.  If any proposed Change of Control does not
occur, all requests for redemption in connection therewith shall be
automatically rescinded, or if there has been a material change in the terms or
the timing of the transaction, any holder of Notes may rescind such holder’s request
for redemption by giving written notice of such rescission to the Company.


 


(iii)          Redemptions
made pursuant to this Section 7C shall not relieve the Company of its
obligation to redeem Notes that remain outstanding on the Scheduled Redemption
Date pursuant to Section 7A above.


 


7D.          Redemption
Payments.  For each Note which is to
be redeemed pursuant to this Agreement, the Company shall be obligated on the
Redemption Date to pay to the holder thereof (upon surrender by such holder at
the Company’s principal office of the instrument evidencing such Note) an
amount in immediately available funds as determined under this Section 7.


 


7E.           Notice
of Redemption.  The Company shall
give written notice of any redemption of any Notes pursuant to Section 7B
to each record holder thereof not more than 60 days nor less than 5 days prior
to the date on which such redemption is to be made.


 


7F.           Interest
After Redemption Date.  No Note shall
be entitled to any interest accruing after the Redemption Date for such
Note.  On such date, all rights of the
holder of such Note shall cease, and such Note shall no longer be deemed to be
outstanding.


 


7G.          Tax
Gross-Up.  All payments to be made by
the Company under this Agreement or any Note shall be made without set-off or
counterclaim and without deduction for or on account of any present or future
Tax (excluding capital Taxes and Taxes imposed on or measured by the net income
of the holder of a Note by the jurisdictions under the Laws of which such
holder is organized or carries on business or any political subdivisions
thereof) unless the Company is compelled by law to make payments subject to
such Tax.  In such event, the Company
shall:


 


33





















 


(i)            pay to
the holder of the Note, for the account of such holder, such additional amounts
as may be necessary to ensure that the holder of the Note receives a net amount
equal to the full amount which would have been receivable under this Agreement
or any Note had the payment not been made subject to such Tax; and


 


(ii)           send to
the holder of the Note such certificates or certified copies of receipts as
such holder shall reasonably require as proof of the payment by the Company of
any such Taxes payable by the Company.


 


7H.          Tax
Gross-Up Adjustments.  The Company
shall not be required to pay any additional amounts pursuant to Section 7G
after an assignment of a Note by a Purchaser if immediately before the
assignment, the Purchaser was not entitled to receive amounts under Section
7G.


 


Section 8.               Put
Right.


 


8A.          Put
Events.  At any time after
(i) the occurrence of an Event of Default (without cure or waiver by the
holders of a majority of the Underlying Common Stock or of the Majority
Noteholders) of a type described in Sections 9A(i), 9A(ii), 9A(viii),
9A(x) and for so long as such Event of Default is continuing, or upon
the occurrence of a Change of Control, or (ii) the first anniversary of
the occurrence of any Event of Default (without cure or waiver by the holders
of a majority of the Underlying Common Stock or of the Majority Noteholders)
other than those described in Sections 9A(i), 9A(ii), 9A(viii)
or 9A(x) (collectively, a “Triggering Event”), any holder of
Warrants or Underlying Common Stock (collectively, the “Put Securities”)
shall have the option to require the Company to purchase all of the Put
Securities then outstanding held by such holder at a purchase price equal to
the price specified in Section 8E for the Put Securities.  Such option may be exercised by written
notice (a “Put Notice”) to the Company to that effect given at any time
prior to (x) 20 business days after such holder receives written notice from
the Company of the occurrence of such Event of Default or Change of Control, in
the case of an Event of Default described in clause (i) above or a Change of
Control, or (y) 20 business days after the latter of the first anniversary of
the occurrence of such Event of Default and the date upon which such holder
receives written notice from the Company of the occurrence of such Event of
Default, in the case of any Event of Default not described in clause (i) above.


 


8B.          Obligation
After Notice.  Upon receipt of such
Put Notice, the Company shall be obligated to purchase the Put Securities
specified in such Put Notice on the date that is 15 business days after the
receipt of such Put Notice (the “Put Closing Date”).


 


8C.          Closing.  The closing for any payment of the Put Price
due to any holder of Put Securities under this Section 8 shall occur at the
offices of Choate, Hall & Stewart, LLP, 2 International Place, Boston,
Massachusetts 02110, or at such other place as the Company and such holder may
agree.  The payment of the Put Price
which is due to any holder of any Put Securities pursuant to this Section 8
shall be paid by the Company, against delivery of the certificates evidencing
such Put Securities, in immediately available funds.


 


34





















 


8D.          Prohibitions
on Payment.  Notwithstanding anything
to the contrary in this Section 8, if payment of the Put Price pursuant to this
Section 8 is prohibited due to applicable restrictions contained in (1)
applicable Law or (2) agreements governing Senior Debt of the Company Group,
the Company shall (x) use commercially reasonable efforts to obtain financing
for such payment and use commercially reasonable efforts to obtain all
necessary consents and waivers to permit such payment, (y) pay in immediately
available funds the largest portion of such payment (pro rata to each of the
holders of Put Securities from whom the Company are then obligated to purchase
any Put Securities in proportion to the Put Securities to be purchased from
each holder) on the Put Closing Date that the Company is able to pay without
causing a violation and (z) pay the remaining amount of the Put Price as soon
as reasonably practicable after it is no longer prohibited from making such
payment.


 


8E.           Put
Price.  The “Put Price” for
any Underlying Common Stock pursuant to this Section 8 shall be the Triggering
Event Value for such Underlying Common Stock. 
“Put Price” for any Warrant pursuant to this Section 8 shall be
the aggregate Triggering Event Value of the Underlying Common Stock issuable
upon the exercise of such Warrant reduced by the aggregate exercise price
payable pursuant to such Warrant to purchase such Underlying Common Stock.


 


Section 9.               Events
of Default.


 


9A.          Definition.  An “Event of Default” shall have
occurred if at any time following the Closing:


 


(i)            the
Company defaults in the payment in full in cash of any principal, or, with
respect to any redemption of the Notes as and when required under Section 7,
the portion of the Accrued Amount consisting of interest, on any Note when the
same becomes due and payable, whether at maturity or at a date fixed for
redemption or by declaration or otherwise;


 


(ii)           any member
of the Company Group fails to pay when due any other amount owing hereunder or
pursuant to any other Transaction Agreement, if such failure continues for more
than five (5) Business Days after the same becomes due and payable;


 


(iii)          any
member of the Company Group is in default in the payment of any principal of or
premium or make-whole amount or interest on any Indebtedness that is
outstanding in an aggregate amount for all such defaults exceeding $500,000,
beyond any grace period provided with respect thereto;


 


(iv)          any member
of the Company Group breaches or otherwise fails to perform or observe in any
material respect any covenant or agreement set forth in Section 4B
or 4F of this Agreement or Section 3.3 of the Parent Guaranty;


 


(v)           any member
of the Company Group breaches or otherwise fails to perform or observe in any
material respect any other obligation, covenant or agreement set forth in any
Transaction Agreement, other than those covenants and agreements set forth in Section 4B,
or 4F of this Agreement or Section 3.3 of the Parent Guaranty, which


 


35





















 


shall be governed by the terms of Section 9A(iv) and other than
an event described in clause (i) or (ii) above, if such breach or failure is
not cured within 45 days from the date of such breach or failure;


 


(vi)          any
representation, warranty or certification made in writing by any member of the
Company Group in any Transaction Agreement (i) that is not qualified as to
materiality proves to have been false or incorrect in any material respect as
of the date made or (ii) that is qualified as to materiality proves to have
been false or incorrect in any respect as of the date made;


 


(vii)         any
(A) default which results in the acceleration of any Indebtedness of any member
of the Company Group where the principal amount of such Indebtedness, when
added to the principal amount of all other Indebtedness (other than the Notes)
of the Company Group then in default and accelerated or past due, exceeds
$500,000, or (B) final judgment or judgments for the payment of more than
$1,000,000 in the aggregate (net of any portion of such judgment or judgments
paid by any member of the Company Group’s insurance carrier) is or are entered against
any member of the Company Group and such judgment or judgments is or are not
discharged or dismissed or stayed pending appeal within 90 days after entry;


 


(viii)        (A)
any member of the Company Group makes an assignment for the benefit of
creditors or admits in writing its inability to pay its debts generally as they
become due; or (B) an order, judgment or decree is entered adjudicating
any member of the Company Group is insolvent; or any order for relief with
respect to any member of the Company Group is entered under the Federal
Bankruptcy Code, the Bankruptcy and
Insolvency Act (Canada), the Companies’
Creditors Arrangement Act (Canada), or the Winding-Up and Restructuring Act (Canada)
(including the appointing of a receiver, interim receiver, receiver and
manager, liquidator, assignee, trustee, custodian, sequestrator, administrator,
agent or similar official of any member of the Company Group, or of any
substantial part of their respective properties); or (C) any member of the
Company Group petitions or applies to any tribunal for the appointment of a
custodian, trustee, receiver, interim receiver, receiver and manager or
liquidator of any member of the Company Group or of any substantial part of the
assets of any member of the Company Group, or commences any proceeding (other
than a proceeding for the voluntary liquidation and dissolution of a Subsidiary
of the Company) relating to any member of the Company Group under any
bankruptcy, reorganization, winding-up, composition, rescheduling, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction; or (D) any holder of a Lien takes possession, foreclosure,
seizure, retention, sale or other disposition of, or a receiver, interim
receiver, receiver and manager, administrator or other similar officer is
appointed for, all or substantially all of the properties, assets or revenues
of any member of the Company Group; or (E) any such petition or
application is filed, or any such proceeding is commenced, against any member
of the Company Group, and either (1) the Company or any Subsidiary of the
Company, as the case may be, by any act indicates its approval thereof, consent
thereto or acquiescence therein, (2) with respect to clause (D) above,
such petition, application or proceeding is not dismissed within 60 days or
(3) with respect to clause (E) above, such proceeding is not dismissed
within 60 days;


 


36





















 


(ix)           EAG or EAG
Holdco fails to execute and deliver to the Purchasers a joinder to the
Subsidiary Guaranty, in form and substance reasonably satisfactory to the
Purchasers, on or prior to the close of business on the 14th day after the
Closing Date; or


 


(x)            EAG or
EAG Holdco fails to execute and deliver to the Purchasers a joinder to the
Subsidiary Guaranty, in form and substance reasonably satisfactory to the
Purchasers, on or prior to the close of business on the 180th day after the
Closing Date.


 


9B.          Consequences
of Events of Default Under the Notes.


 


(i)            If an
Event of Default of a type described in Section 9A(i) or 9A(ii) has occurred
and is continuing, any holder of Notes then outstanding may, upon delivery of
written notice to the Company (so long as the Majority Noteholders have
consented thereto in writing), require that each Note held by such holder be
immediately redeemed by the Company at a price equal to the Accrued Amount of
such Note multiplied by (x) 105%, if such notice is given on or prior to the
third anniversary of the Closing, or (y) the percentage set forth in Section
7B(ii) for the date of such notice if such notice is given after the third
anniversary of the Closing.  The Company
shall redeem all Notes as to which rights under this Section 9B(i) have been
exercised, within five (5) days after its receipt of such notice.


 


(ii)           If an
Event of Default of a type described in any of Sections 9A(iii) through 9A(vii)
has occurred and is continuing, any holder of Notes then outstanding may
require at any time after the first anniversary of the occurrence of such Event
of Default, by written notice delivered to the Company after such anniversary
(so long as the Majority Noteholders have consented thereto in writing), that
each Note held by such holder be immediately redeemed by the Company at a price
equal to the Accrued Amount of such Note multiplied by (x) 105%, if such notice
is given on or prior to the third anniversary of the Closing, or (y) the
percentage set forth in Section 7B(ii) for the date of such notice if such
notice is given after the third anniversary of the Closing.  The Company shall redeem all Notes as to
which rights under this Section 9B(ii) have been exercised, within five (5)
days after its receipt of such notice.


 


(iii)          If
an Event of Default of a type described in Sections 9A(viii) or 9A(x)
has occurred, the Company shall immediately redeem all Notes at a price for
each Note equal to the Accrued Amount thereof multiplied by (x) 105%, if such
Event of Default occurs on or prior to the third anniversary of the Closing, or
(y) the percentage set forth in Section 7B(ii) for the date upon which
such Event of Default occurs, if such Event of Default occurs after the third
anniversary of the Closing.


 


(iv)          If an Event
of Default of a type described in Sections 9A(i), 9A(ii) or
9A(ix) or a breach of Section 4F(ii) (in any case, an “Interest Rate
Trigger Event”) occurs, then the interest rate on each outstanding Note shall
increase immediately by an increment of 200 basis points, and such increase
will continue until the next day upon which no Increase Period (whether for
such Interest Rate Trigger Event or any other Interest Rate Trigger Event) is
continuing, subject to subsequent increases pursuant to


 


37





















 


this Section 9B(iv);
provided that such interest rate shall not be increased by more than 200 basis
points in the aggregate at any given time. 
As used in this Section 9B(iv):


 


(A)          the “Increase
Period” for an Event of Default of a type described in Section 9A(i)
or 9A(ii) will commence on the date upon which such Event of Default
occurs and will end on the earlier of (x) the last day of the 90-Day Period (as
defined below) during which such Event of Default is cured and (y) the date
upon which such Event of Default is waived in writing by Majority Noteholders;


 


(B)           a “90-Day
Period” for an Event of Default of a type described in Section 9A(i)
or 9A(ii) means any 90-day period that ends on the day that is 90 days
(or on a day that is an integral multiple of 90 days) after the date upon which
such Event of Default occurs;(1)


 


(C)           the “Increase
Period” for an Event of Default of a type described in Section 9A(ix)
will commence on the date upon which such Event of Default occurs and will end
on the earlier of (x) the date upon which such Event of Default is cured and
(y) the date upon which such Event of Default is waived in writing by Majority
Noteholders; and


 


(D)          the “Increase
Period” for a breach of Section 4F(ii) will commence on the date
upon which such breach occurs and will end on the earlier of (x) the date upon
which the Company delivers to the Noteholders the items described in Section
4D(ii) for the next succeeding Fiscal Quarter as of the end of which the
Consolidated EBITDA (for the period of four consecutive Fiscal Quarters ending
on the last day of such Fiscal Quarter) is not less than the applicable amount
set forth in Section 4F(ii) and (y) the date upon which such Event of
Default is waived in writing by Majority Noteholders.


 


(v)           If any
Event of Default exists, each holder of Notes shall also have any other rights
which such holder is entitled to at any time under any other Transaction
Agreement, any other contract or agreement and any other rights which such
holder may have pursuant to applicable Law.


 


(vi)          In the case
of a purchase or redemption pursuant to Section 7C or this Section 9B,
if the funds of the Company legally available for redemption of Notes on any
Redemption Date are insufficient to redeem the Notes (plus any premium payable
thereon) to be redeemed on such date, those funds which are legally available
shall be used to redeem the maximum possible number of Notes (plus any premium
payable thereon) pro rata among the holders of the Notes to be redeemed based
upon the number


 










(1)           e.g., if an Event of
Default of a type described in Section 9A(i) or 9A(ii) is cured
on the 10th day after such Event of Default occurs, then the Increase Period
for such Event of Default will end on the 90th day after the date upon which
such Event of Default occurred; and if an Event of Default of a type described
in Section 9A(i) or 9A(ii) is cured on the 150th day after such
Event of Default occurs, then the Increase Period for such Event of Default
will end on the 180th day after the date upon which such Event of Default
occurred; in each case, unless such Event of Default is earlier waived in
writing by Majority Noteholders.


 


38





















 


of Notes held by
each such holder.  Notwithstanding the
provisions of the first sentence of this Section 9B(vi), at any time thereafter
when additional funds of the Company are legally available for the redemption
of Notes, such funds shall immediately be used to redeem the Notes (plus any
premium payable thereon) which the Company have become obligated to redeem on
any Redemption Date but which it has not redeemed.


 


(vii)         At
any time after any Notes have been declared due and payable pursuant to Section
9B, the Majority Noteholders, by written notice to the Company, may rescind
and annul any such declaration and its consequences.  No rescission and annulment under this
paragraph will extend to or affect any subsequent Event of Default or Potential
Event of Default or impair any right consequent thereon.


 


Section 10.             Miscellaneous.


 


10A.        Commitment
Fees; Expenses.


 


(i)            On the
Closing Date, the Company shall pay to each Purchaser a commitment fee in an
amount equal to 2% of the aggregate principal amount of the Notes purchased by
such Purchaser under this Agreement at the Closing (the “Commitment Fee
Amount”).


 


(ii)           Each
member of the Company Group agrees, jointly and severally, to pay, and hold the
Purchasers harmless against any Liability for the payment of (a) the reasonable
and documented fees and expenses incurred by the Purchasers and their legal,
accounting and other advisors arising in connection with their due diligence
review of the Company Group (including EAG), the negotiation and execution of
the Commitment Letter (and exhibits and annexes attached thereto), this
Agreement and each of the other Transaction Agreements and the consummation of
the transactions contemplated hereby and thereby, in an amount not to exceed
$250,000, and (b) the reasonable and documented fees and expenses incurred with
respect to any restatements, amendments or waivers (whether or not the same become
effective) under or in respect of this Agreement or any other Transaction
Agreement.  Each member of the Company
Group shall pay, and hold each Purchaser and each holder of Notes, Warrants and
Underlying Common Stock harmless against Liability for the payment of, (1)
stamp and other similar taxes (but excluding any income taxes of Purchasers)
which may be payable in respect of the execution and delivery of this Agreement
or the issuance, delivery or acquisition of any Notes or Put Securities, and
(2) the fees and out-of-pocket expenses incurred with respect to the
enforcement of the rights granted under this Agreement or any other Transaction
Agreement, and (3) the reasonable fees and expenses incurred by each Purchaser
in making any filing with any Governmental Entity with respect to its
investment in the Company or in any other filing with any Governmental Entity
with respect to the Company which mentions such Purchaser.


 


39





















 


10B.        Remedies;
Survival of Representations, Warranties and Covenants; Indemnification.


 


(i)            Each
holder of Notes, Warrants and Underlying Common Stock shall have all rights and
remedies set forth in this Agreement and the other Transaction Agreements for
the benefit of each such holder and all rights and remedies which such holders
have been granted at any time under any other agreement or contract and all of
the rights which such holders have under any Law.  Any Person having any rights under any provision
of this Agreement or any other Transaction Agreement shall be entitled to
enforce such rights specifically, to recover damages by reason of any breach of
any provision of this Agreement or any other Transaction Agreement and to
exercise all other rights granted by Law. 
The following indemnification provisions are in addition to, and not in
derogation of, any statutory, equitable, or common law remedy any holder of
Notes, Warrants or Underlying Common Stock may have for breach of
representation, warranty or covenant with respect to any member of the Company
Group, or the transactions contemplated by this Agreement or by the other
Transaction Agreements.  The
representations and warranties set forth in this Agreement shall survive the
Closing.


 


(ii)           In
consideration of each Purchaser’s execution and delivery of this Agreement and
acquiring the Notes hereunder and in addition to all of the Company’s other
obligations under this Agreement and the other Transaction Agreements, the
Company agrees to indemnify on an after-tax basis and defend, protect and hold
harmless each Purchaser and its Affiliates and each of their respective
directors, officers, employees, agents, counsel and attorneys-in-fact
(including those retained in connection with the transactions contemplated by
this Agreement), successors and assigns (collectively, the “Indemnitees”)
from and against any and all actual Claims, costs, damages, deficiencies,
expenses (including interest, court costs, fees of attorneys, accountants and
other experts or other expenses of litigation or other proceedings or of any
Claim, default or assessment), fees, fines, liabilities, losses and penalties
(hereinafter individually, a “Loss” and collectively, “Losses”)
which, directly or indirectly, arise out of, result from or relate to
(irrespective of whether any such Indemnitee is a party to the action for which
indemnification hereunder is sought) the execution, delivery, enforcement,
performance and administration of this Agreement and any other Transaction
Agreements, or the transactions contemplated hereby and thereby (including,
without limitation, so-called work-outs and/or restructurings and all
amendments, waivers and consents hereunder or thereunder, whether or not
effected), and with respect to any investigation, litigation or proceeding (including
any insolvency proceeding or appellate proceeding) related to this Agreement or
the Notes or transactions contemplated hereby or the use of the proceeds
thereof, whether or not any Indemnitee is a party thereto; provided,
that the Company shall have no obligation hereunder to any Indemnitee with
respect to Losses to the extent arising from the bad faith, gross negligence or
willful misconduct of such Indemnitee (or any of its officers, directors,
employees, counsel, agents or attorneys-in-fact) as determined by a court of
competent jurisdiction in a final order not subject to further appeal.


 


40





















 


10C.        Purchaser’s
Representations; Legends.


 


(i)            Purchaser’s
Representations.


 


(a)           Authorization.  Each Purchaser hereby represents that it has
full power and authority to enter into this Agreement and the other Transaction
Agreements, and this Agreement and the other Transaction Agreements constitute
its valid and legally binding obligations, enforceable in accordance with their
respective terms.


 


(b)           Disclosure
of Information.  Each Purchaser
hereby represents that it has received and reviewed the information about the
Company Group that it has requested and represents that it has had ample
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Notes and Warrants and the
business, properties, prospects and financial condition of the Company Group
that it has requested.  The foregoing,
however, does not limit or modify the representations and warranties in Section
6 or the right of the Purchasers to rely thereon.


 


(c)           Investment
Experience.  Each Purchaser hereby
represents that it is able to fend for itself, can bear the economic risk of
its investment and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Notes, Warrants and Underlying Common Stock.  Such Purchaser also represents it has not
been organized for the purpose of acquiring the Notes, Warrants or Underlying
Common Stock.


 


(d)           Investment
Intent; Own Account.  Each Purchaser
hereby severally represents that it is acquiring the Notes, Warrants and
Underlying Common Stock purchased hereunder or acquired pursuant hereto as
principal for its own account, not as nominee or agent, with the present
intention of holding such securities for purposes of investment, and that it
has no intention of selling such securities in violation of any applicable United
States securities Laws; provided that nothing contained herein shall
prevent any Purchaser and subsequent holders of Notes, Warrants or Underlying
Common Stock from transferring such securities to its Affiliates or any other
Person in compliance with the provisions of Section 5 of this
Agreement.  Each Purchaser further
represents that such Purchaser does not have any contract, undertaking or
agreement with any Person to sell, transfer or grant participations to such
Person or to any other Person with respect to the Notes, Warrants and
Underlying Common Stock.  Each Purchaser
understands that the Notes, Warrants and Underlying Common Stock have not been
registered under the Securities Act and may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither such
registration nor such an exemption is required by law, and that, subject to the
Registration Rights Agreement, the Parent and the Company are not required to
register the Warrants or the Notes.


 


(e)           Brokerage.  There are no claims for brokerage
commissions, finders’ fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or agreement
binding upon any Purchaser.


 


41





















 


The Purchasers shall pay, and hold each member of the Company Group
harmless against, any Liability (including attorneys fees and out-of-pocket
expenses) arising in connection with any such claim.


 


(f)            Each
Purchaser hereby represents that at least one of the following statements is an
accurate representation as to each source of funds (a “Source”) to be used by
such Purchaser to pay the purchase price of the Notes to be purchased by such
Purchaser hereunder:


 


(1)           the Source
is an “insurance company general account” as defined in Section V(e) of
Prohibited Transaction Exemption (“PTE”) 95-60 (issued July 12, 1995) and,
except as such Purchaser has disclosed to the Company in writing pursuant to
this Section (1), the amount of reserves and liabilities for the general
account contract(s) held by or on behalf of any employee benefit plan or group
of plans maintained by the same employer or employee organization do not exceed
10% of the total reserves and liabilities of the general account (exclusive of
separate account liabilities) plus surplus as set forth in the NAIC Annual
Statement filed with the state of domicile of the insurer; or


 


(2)           the Source
is a separate account of an insurance company maintained by such Purchaser in
which an employee benefit plan (or its related trust) has an interest, which
separate account is maintained solely in connection with such Purchaser’s fixed
contractual obligations under which the amounts payable, or credited, to such
plan and to any participant or beneficiary of such plan (including any
annuitant) are not affected in any manner by the investment performance of the
separate account; or


 


(3)           the Source
is either (A) an insurance company pooled separate account, within the meaning
of PTE 90-1 (issued January 29, 1990), or (B) a bank collective investment
fund, within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as
such Purchaser has disclosed to the Company in writing pursuant to this Section
(3), no employee benefit plan or group of plans maintained by the same employer
or employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment fund; or


 


(4)           the Source
constitutes assets of an “investment fund” (within the meaning of Part V of the
QPAM Exemption) managed by a “qualified professional asset manager” or “QPAM”
(within the meaning of Part V of the QPAM Exemption), no employee benefit
plan’s assets that are included in such investment fund, when combined with the
assets of all other employee benefit plans established or maintained by the
same employer or by an affiliate (within the meaning of Section V(c)(1) of the
QPAM Exemption) of such employer or by the same employee organization and
managed by such QPAM, exceed 20% of the total client assets managed by such
QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied,
neither the QPAM nor a person controlling or controlled by the QPAM (applying
the definition of “control” in Section V(e) of


 


42





















 


the QPAM Exemption) owns a 5% or more interest in the Company and (A)
the identity of such QPAM and (B) the names of all employee benefit plans whose
assets are included in such investment fund have been disclosed to the Company
in writing pursuant to this Section (4); or


 


(5)           the Source
is a governmental plan; or


 


(6)           the Source
is one or more employee benefit plans, or a separate account or trust fund
comprised of one or more employee benefit plans, each of which has been
identified to the Company in writing pursuant to this Section (6); or


 


(7)           the Source
does not include assets of any employee benefit plan, other than a plan exempt
from the coverage of ERISA.


 


As used in this Section 10(c)(i)(f), the terms
“employee benefit plan”, “governmental plan”, “party in interest” and “separate
account” shall have the respective meanings assigned to such terms in Section 3
of ERISA, and the term “QPAM Exemption” means PTE 84-14 (issued March 13,
1984).


 


(ii)           Legends.  Each certificate or instrument representing
Notes, Warrants and Underlying Common Stock shall be imprinted with a legend in
substantially the following form, as applicable:


 


“THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS.  THE SECURITIES
REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A
FORM REASONABLY ACCEPTABLE TO THE ISSUER OF SUCH SECURITIES (THE “COMPANY”),
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES
LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.


 


THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS
INSTRUMENT IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE NOTE PURCHASE
AGREEMENT, DATED AS OF NOVEMBER 22, 2005, AMONG THE COMPANY AND THE OTHER
PARTIES REFERRED TO THEREIN, AS AMENDED AND MODIFIED FROM TIME TO TIME, AND THE
COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER.  A COPY OF SUCH CONDITIONS


 


43





















 


SHALL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO
THE HOLDER HEREOF UPON WRITTEN REQUEST.


 


10D.        Entire Agreement.  This Agreement, the other Transaction
Agreements and the other agreements and instruments referred to herein and
therein contain the entire agreement between the parties hereto and supersede
any prior understandings, agreements or representations by or between the
parties hereto, written or oral, which may have related to the subject matter
hereof in any way, including that certain Commitment Letter by and between the
Company and ABRY dated as of September 21, 2005 (the “Commitment Letter”).


 


10E.         Successors
and Assigns.  Except as otherwise
expressly provided herein or therein, all covenants and agreements contained in
this Agreement or any other Transaction Agreement by or on behalf of any of the
parties hereto shall bind and inure to the benefit of the respective successors
and assigns of the parties hereto whether so expressed or not.  In addition, and whether or not any express
assignment has been made, the provisions of this Agreement or any other Transaction
Agreement which are for any Purchaser’s benefit as a purchaser or holder of
Notes, Warrants or Underlying Common Stock are also for the benefit of, and
enforceable by, any subsequent holder of such Notes, Warrants or Underlying
Common Stock and such subsequent holder shall be deemed a “Purchaser”
hereunder in all respects.  No member of
the Company Group may assign its rights under this Agreement without the prior
written consent of the Majority Noteholders and the holders of a majority of
the Underlying Common Stock.


 


10F.         Counterparts.  This Agreement and any other Transaction
Agreement may be executed simultaneously in two or more counterparts, any one
of which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same agreement.


 


10G.        Descriptive
Headings; Interpretation.  Section
headings used in this Agreement or in any other Transaction Agreement are for
convenience only and are not to affect the construction of, or to be taken into
consideration in interpreting, such agreement. 
The use of the word “including” or any variation or derivative thereof
in this Agreement or in any other Transaction Agreement is by way of example
rather than by limitation.  All
references in this Agreement to “dollars” or “$” shall be to United States
dollars and all references to “Section”, “subsection” or “clause” shall be
references to this Agreement.


 


10H.        Notices;
Business Days.  All notices, demands
or other communications to be given or delivered under or by reason of the
provisions of this Agreement or any other Transaction Agreement shall be in
writing and shall be deemed to have been received when delivered personally to
the recipient or when sent by facsimile followed by delivery by reputable
overnight courier service (charges prepaid), one day after being sent to the
recipient by reputable overnight courier service (charges prepaid) or five days
after being mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. 
Any notice, demand or other communication hereunder may be given by any
other means (including telecopy or electronic mail), but shall not be deemed to
have been duly given unless and until it is actually received by the intended
recipient.  Such notices, demands and
other communications shall be sent to (i) each Purchaser at the address
indicated for such Purchaser on Annex 1 attached hereto,


 


44





















 


(ii) any other holder of Notes, Warrants or Underlying
Common Stock at the address set forth in the Company’s records and (iii) the
Company at the address indicated below:


 


	
  175 Columbia St.
  West,

  Suite 102

  Waterloo, Ontario

  Canada N2L 5Z5

  Attention: David Strucke

  Facsimile: 1-519-747-5282

  
	
   

  
	
  with a copy
  (which shall not constitute notice to the Company) to: 

  

  Choate, Hall & Stewart LLP

  Two International Place

  Boston, MA 02110

  Attention: Fred Callori, Esq.

  Facsimile: 1-617-248-4000

  



 


or to such other address, to the attention of such other Person and/or
with such other copy or copies as the recipient party has specified by prior
written notice to the sending party.  If
any time period for giving notice or taking action expires on a day which is a
Saturday, Sunday or legal holiday in the Province of Ontario, Canada or the
Commonwealth of Massachusetts (any other day being a “business day”), such time
period shall automatically be extended to, the next business day immediately
following such Saturday, Sunday or legal holiday.


 


10I.          Consent
to Amendments and Waivers.  Except as
otherwise provided herein, no modification, amendment or waiver of any
provision of this Agreement shall be effective against the Company Group or the
holders of the Notes unless such modification, amendment or waiver is approved
in writing by (i) the Company, (ii) the Majority Noteholders and (iii) with
respect to any provision which survives the repayment of the Notes and which is
not otherwise covered by the terms of the Warrant Agreement, the holders of a
majority of the Underlying Common Stock. 
Notwithstanding the foregoing, without the consent of any other Person,
the Company may amend this Agreement to change the addresses for notice to any
Person at such Person’s request.  No
other course of dealing between the Company and any holder of Notes, Warrants
or Underlying Common Stock or any delay in exercising any rights, power or
remedy under this Agreement or any of the other Transaction Agreements shall
operate as a waiver of any rights of any such holder.


 


10J.         Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable Law, but if any provision of this Agreement or any other
Transaction Agreement is held to be prohibited by or invalid under applicable
Law, such provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of this Agreement or such
other Transaction Agreement.


 


10K.        Construction.  The parties hereto have participated jointly
in the negotiation and drafting of this Agreement and the other Transaction
Agreements.  In the event


 


45





















 


an ambiguity or question of intent or interpretation
arises, this Agreement and the other Transaction Agreements shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement or any other Transaction Agreement.  Nothing in the schedules attached hereto
shall be deemed adequate to disclose an exception to a representation or
warranty made herein unless the schedule attached hereto identifies the
exception with particularity and describes the relevant facts in detail.  Without limiting the generality of the
foregoing, the mere listing (or inclusion of a copy) of a document or other
item shall not be deemed adequate to disclose an exception to a representation
or warranty made herein (unless the representation or warranty has to do with
the existence of the document or other item itself or the content of such
document or other item).  The parties hereto intend that
each representation, warranty, and covenant contained herein shall have
independent significance.  If any party
hereto has breached any representation, warranty, or covenant contained herein
in any respect, the fact that there exists another representation, warranty, or
covenant relating to the same subject matter (regardless of the relative levels
of specificity) which such party has not breached shall not detract from or
mitigate the fact that such party is in breach of the first representation,
warranty, or covenant.


 


10L.         Incorporation
of Annexes, Schedules and Exhibits. 
The annexes, schedules and exhibits identified in this Agreement are
incorporated herein by reference and made a part hereof.


 


10M.       Registered
Holders; Ownership.  As used in this
Agreement and each of the other Transaction Agreements, references to a
“holder” of Notes, Warrants or Underlying Common Stock shall mean the
registered holder of such Notes, Warrants or Underlying Common Stock as set
forth in the Company’s records.  For
purposes of this Agreement and each of the other Transaction Agreements, all
holdings of Notes, Warrants or Underlying Common Stock by Persons who are
Affiliates of each other shall be aggregated for purposes of meeting any
threshold tests under this Agreement and each of the other Transaction
Agreements.


 


10N.        GOVERNING
LAW.  TO THE EXTENT APPLICABLE,  THE
CORPORATE LAW OF THE STATE OF DELAWARE SHALL GOVERN ALL ISSUES AND QUESTIONS
CONCERNING THE RELATIVE RIGHTS AND OBLIGATIONS OF COMPANY AND ITS
SECURITYHOLDERS.  ALL OTHER ISSUES AND
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION
OF THIS AGREEMENT AND ANY OF THE OTHER TRANSACTION AGREEMENTS AND THE ANNEXES,
EXHIBITS AND SCHEDULES HERETO AND THERETO SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS
(WHETHER OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
COMMONWEALTH OF MASSACHUSETTS.  IN
FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE COMMONWEALTH OF
MASSACHUSETTS SHALL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS
AGREEMENT AND EACH OF


 


46





















 


THE OTHER TRANSACTION AGREEMENTS (AND
ALL ANNEXES, SCHEDULES AND EXHIBITS HERETO AND THERETO), EVEN THOUGH UNDER THAT
JURISDICTION’S CHOICE OF
LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION
WOULD ORDINARILY APPLY.


 


10O.        JURISDICTION
AND VENUE.  ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY
HERETO WITH RESPECT TO THIS AGREEMENT OR ANY OTHER TRANSACTION AGREEMENT SHALL
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN BOSTON,
MASSACHUSETTS.  BY EXECUTING AND
DELIVERING THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS TO WHICH THEY
ARE A PARTY, THE COMPANY AND EACH HOLDER OF NOTES, WARRANTS AND UNDERLYING
COMMON STOCK, ACCEPTS THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS,
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER TRANSACTION AGREEMENTS.  THE COMPANY AND EACH HOLDER OF NOTES,
WARRANTS AND UNDERLYING COMMON STOCK HEREBY WAIVE ANY CLAIM THAT MASSACHUSETTS
IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE.


 


10P.         WAIVER
OF RIGHT TO JURY TRIAL.  THE COMPANY
AND EACH HOLDER OF NOTES, WARRANTS AND UNDERLYING COMMON STOCK HEREBY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY in any litigation in any
court with respect to, in connection with, or arising out of this Agreement or
any of the other Transaction Agreements or the validity, protection,
interpretation, collection or enforcement hereof or thereof.  EACH PARTY HERETO AGREES THAT THIS SECTION
10P IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND EACH OF THE
OTHER TRANSACTION AGREEMENTS AND ACKNOWLEDGES THAT EACH OTHER PARTY HERETO
WOULD NOT HAVE ENTERED INTO THIS AGREEMENT OR MADE AN INVESTMENT HEREUNDER IF
THIS SECTION 10P WERE NOT PART OF THIS AGREEMENT AND THE OTHER
TRANSACTION AGREEMENTS.


 


10Q.        Confidentiality.  For the purposes of this Section,
“Confidential Information” means information delivered to any Purchaser by or
on behalf of the Company or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement or the other
Transaction Agreements that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified in a tangible manner when
received by such Purchaser as being confidential information of the Company or
such Subsidiary, provided that such term does not include information that (a)
was publicly known or otherwise known to such Purchaser or any of its
Representatives prior to the time of such disclosure, (b) subsequently becomes
publicly known through no act or omission by such Purchaser or any person
acting on such Purchaser’s behalf, (c) otherwise becomes known to such
Purchaser or any of its Representatives other than through disclosure by the
Company or any Subsidiary or (d) without limiting clause (a) above, constitutes
financial statements delivered to such Purchaser under this Agreement that are
otherwise publicly available.  Each
Purchaser will maintain the


 


47





















 


confidentiality of such Confidential Information in
accordance with procedures adopted by such Purchaser in good faith to protect
confidential information of third parties delivered to such Purchaser, provided
that such Purchaser may deliver or disclose Confidential Information to (i) its
directors, officers, limited partners and other investors, trustees, employees,
agents, attorneys and affiliates, (ii) its financial advisors and other
professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section 10Q (the
Persons described in clauses (i) and (ii) being such Purchaser’s “Representatives”),
(iii) any other holder of any Note or Underlying Common Stock, (iv) any
institutional investor to which it sells or considers selling any Note and/or
Underlying Common Stock or any part thereof or any participation therein (if
such Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 10Q), (v) any Person
from which it considers purchasing any security of the Company or any
Subsidiary (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 10Q),
(vi) any Federal or state regulatory authority having jurisdiction over such
Purchaser or any of its Representatives, (vii) any nationally recognized rating
agency that requires access to information about such Purchaser’s investment
portfolio, or (viii) any other Person to which such delivery or disclosure such
Purchaser’s deems in good faith to be necessary or appropriate (w) to effect
compliance with any law, rule, regulation or order applicable to such Purchaser
or any of its Representatives, (x) in response to any subpoena or other legal
process or (y) in the enforcement or for the protection of such Purchaser’s
rights and remedies under any Transaction Agreement.  Each holder of a Note, by its acceptance of a
Note, will be deemed to have agreed to be bound by and to be entitled to the
benefits of this Section 10Q as though it were a party to this Agreement.


 


10R.        Consideration
for Notes.  The Purchasers and the
Company acknowledge and agree that the fair market value of the Tranche A Notes
on the Closing Date is $5,800,000, and the fair market value of the Tranche B
Notes on the Closing Date is $14,500,000. 
Each Purchaser and the Company shall file their respective federal,
state, provincial, territorial and local Tax returns in a manner which is
consistent with such valuation and allocation and shall not take any contrary
position with any Taxing authority.


 


48





















 


IN WITNESS WHEREOF, the parties have executed this
Note Purchase Agreement as of the date first written above.


 


 


	
   

  	
  COMPANY:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NAVTECH SYSTEMS
  SUPPORT INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PURCHASERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  ABRY MEZZANINE
  PARTNERS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  ABRY MEZZANINE
  INVESTORS, L.P.,

  
	
   

  	
   

  	
  Its General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  ABRY MEZZANINE
  HOLDINGS LLC,

  
	
   

  	
   

  	
  Its General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ABRY INVESTMENT
  PARTNERSHIP, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  ABRY Investment
  GP, LLC

  
	
   

  	
   

  	
  Its General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
								



 





















 


ANNEX 1

SCHEDULE OF PURCHASERS


 


	
  Names
  and Addresses

  	
   

  	
  Tranche
  A Notes

  	
   

  	
  Tranche
  B 

  Notes

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ABRY Mezzanine Partners, L.P.

  111 Huntington Avenue

  30th Floor

  Boston, MA 02199

  Attention: John Hunt

  Facsimile: (617) 859-8797



  	
   

  	
  $

  	
  5,973,371.43

  	
   

  	
  $

  	
  14,933,428.57

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  with a copy (which shall not constitute notice to
  the Purchaser) to:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kirkland & Ellis LLP

  Citigroup Center

  153 East 53rd Street

  New York, NY 10022

  Attention: John Kuehn, Esq.

  Facsimile: (212) 446-6460

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ABRY Investment Partnership, L.P.

  111 Huntington Avenue

  30th Floor

  Boston, MA 02199

  Attention: John Hunt

  Facsimile: (617) 859 8797



  	
   

  	
  $

  	
  26,628.57

  	
   

  	
  $

  	
  66,571.43

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  with a copy (which shall not constitute notice to
  the Purchaser) to:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kirkland & Ellis LLP

  Citigroup Center

  153 East 53rd Street

  New York, NY 10022

  Attention: John Kuehn, Esq.

  Facsimile: (212) 446-6460

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  6,000,000

  	
   

  	
  $

  	
  15,000,000

  	
   

  



 


Annex 1