SHALL BE CAPITALIZED AND ADDED TO THE OUTSTANDING PRINCIPAL AMOUNT OF THE
LOANS.
3.
PAYMENTS.
A.
THE BORROWER SHALL MAKE CASH PAYMENTS TO THE LENDER WITH RESPECT TO THE LOANS
WHEN AND AS PERMITTED BY CLAUSES 5.2(B)(I) OR 9.3(B) OF THE ACCOUNTS AGREEMENT
OR CLAUSE 7.3(A) OR 7.4(A) OF THE COFACE AGREEMENT.
B.
THE LOANS SHALL BECOME IMMEDIATELY DUE AND PAYABLE IN FULL UPON:
(I)
ANY BORROWER CHANGE IN CONTROL (AS
DEFINED IN THE COFACE AGREEMENT) OR
(II)
ANY ACCELERATION OF THE MATURITY OF THE
LOANS UNDER THE COFACE AGREEMENT,
PROVIDED THAT THE LENDER WILL NOT TAKE ANY ACTION TO RECOVER ANY SUM DUE IN
ACCORDANCE WITH THIS CLAUSE 3B. UNLESS PERMITTED BY AND IN ACCORDANCE WITH THE
SUBORDINATION DEED.
C.
UNLESS PREVIOUSLY PAID, THE LOANS SHALL BE DUE AND PAYABLE SIX MONTHS AFTER ALL
OBLIGATIONS UNDER THE COFACE AGREEMENT HAVE BEEN PAID IN FULL.
4.
SUBORDINATION. ALL OBLIGATIONS OF THE
BORROWER TO THE LENDER UNDER THIS AGREEMENT ARE SUBORDINATED TO THE BORROWER'S
OBLIGATIONS UNDER THE COFACE AGREEMENT AND ARE SUBJECT TO THE PROVISIONS OF THE
SUBORDINATION DEED BETWEEN THE BORROWER, THE LENDER, BNP PARIBAS, AS COFACE
AGENT, AND BNP PARIBAS, AS SECURITY AGENT, DATED 22 JUNE 2009, A COPY OF WHICH
IS ATTACHED HERETO AS EXHIBIT A.
THE SUBORDINATION DEED IS FOR THE BENEFIT OF
AND ENFORCEABLE BY THE LENDERS UNDER THE COFACE AGREEMENT PROVIDED THAT THE
LENDER MAY NOT REQUIRE THE BORROWER TO DO ANYTHING UNDER THIS AGREEMENT WHICH IS
INCONSISTENT WITH THE
2
OBLIGATIONS OF THE PARTIES TO THE SUBORDINATION DEED OR SEEK ANY REMEDIES FOR
THE FAILURE OF THE BORROWER TO DO ANYTHING UNDER THIS AGREEMENT THAT IS
INCONSISTENT WITH THE BORROWER'S OBLIGATIONS UNDER THE SUBORDINATION DEED OR THE
OTHER FINANCE DOCUMENTS (AS SUCH TERM IS DEFINED IN THE COFACE AGREEMENT).
5.
WARRANT. AS ADDITIONAL CONSIDERATION
FOR THE LENDER ENTERING INTO THIS AGREEMENT AND MAKING THE LOANS, ON THE DATE
HEREOF THE BORROWER IS ISSUING TO THE LENDER A WARRANT (THE "WARRANT") IN THE
FORM ATTACHED HERETO AS EXHIBIT B.
6.
REPRESENTATIONS AND WARRANTIES OF THE
BORROWER.
THE BORROWER REPRESENTS AND WARRANTS TO THE LENDER, WITH RESPECT TO
THE TRANSACTIONS CONTEMPLATED HEREBY (COLLECTIVELY, THE "TRANSACTION") AS OF THE
DATE HEREOF, AS FOLLOWS:
A.
ORGANIZATION AND AUTHORITY. THE
BORROWER HAS ALL REQUISITE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND
TO CONSUMMATE THE TRANSACTION. THE BORROWER IS DULY INCORPORATED AND VALIDLY
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE.
THE EXECUTION AND DELIVERY BY
THE BORROWER OF THIS AGREEMENT AND THE WARRANT AND THE CONSUMMATION BY THE
BORROWER OF THE TRANSACTION HAVE BEEN DULY AUTHORIZED. THIS AGREEMENT AND THE
WARRANT, WHEN DULY EXECUTED AND DELIVERED BY THE BORROWER, WILL CONSTITUTE A
LEGAL, VALID, AND BINDING OBLIGATIONS OF THE BORROWER, ENFORCEABLE AGAINST IT IN
ACCORDANCE WITH THEIR RESPECTIVE TERMS, EXCEPT AS THE ENFORCEMENT HEREOF MAY BE
LIMITED BY BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE, REORGANIZATION,
MORATORIUM, OR SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY AND GENERAL EQUITABLE PRINCIPLES WHETHER IN A PROCEEDING IN EQUITY OR