THE FINANCIAL COVENANTS, STANDARDS OR TERMS IN THIS
AGREEMENT.
"ACCOUNTING CHANGES" MEANS CHANGES SUBSEQUENT TO THE CLOSING DATE:
(A) IN ACCOUNTING PRINCIPLES REQUIRED BY GAAP AND IMPLEMENTED BY THE COMPANY;
(B) IN ACCOUNTING PRINCIPLES RECOMMENDED BY THE COMPANY'S CERTIFIED PUBLIC
ACCOUNTANTS AND IMPLEMENTED BY THE COMPANY; AND (C) IN CARRYING VALUE OF THE
COMPANY'S OR ANY OF ITS SUBSIDIARIES' ASSETS, LIABILITIES OR EQUITY ACCOUNTS
RESULTING FROM (I) THE APPLICATION OF PURCHASE ACCOUNTING PRINCIPLES (A.P.B. 16
AND/OR 17 AND EITF 88-16 AND FASB 109) TO THE PURCHASE AND SALE OF THE NOTE OR
THE OTHER TRANSACTIONS DESCRIBED IN THE INVESTMENT DOCUMENTS, OR (II) AS THE
RESULT OF ANY OTHER ADJUSTMENTS THAT, IN EACH CASE, WERE APPLICABLE TO, BUT NOT
INCLUDED IN, THE PRO FORMA BALANCE SHEET.
ALL SUCH ADJUSTMENTS RESULTING FROM
EXPENDITURES MADE SUBSEQUENT TO THE CLOSING DATE (INCLUDING, BUT NOT LIMITED TO,
CAPITALIZATION OF COSTS AND EXPENSES OR PAYMENT OF PRE-CLOSING DATE LIABILITIES)
SHALL BE TREATED AS EXPENSES IN THE PERIOD THE EXPENDITURES ARE MADE.
1.03
KNOWLEDGE OF THE COMPANY.
ALL REFERENCES TO THE
KNOWLEDGE OF THE COMPANY OR ANY OTHER GROUP MEMBER OR TO FACTS KNOWN BY THE
COMPANY OR ANY OTHER GROUP MEMBER SHALL MEAN ACTUAL KNOWLEDGE OR NOTICE OF ANY
DIRECTOR OR EXECUTIVE OFFICER OF THE COMPANY, ANY OTHER GROUP MEMBER OR ANY
DIVISION OF THE COMPANY OR ANY OTHER GROUP MEMBER OR KNOWLEDGE WHICH SUCH PERSON
COULD REASONABLY HAVE ACQUIRED THROUGH THE EXERCISE OF DUE INQUIRY.
ARTICLE 2
PURCHASE AND SALE OF THE NOTE
2.01
PURCHASE AND SALE OF THE NOTE.
SUBJECT TO THE TERMS
AND CONDITIONS HEREIN SET FORTH, THE COMPANY AGREES THAT IT WILL ISSUE AND SELL
TO WMF, AND WMF AGREES THAT IT WILL ACQUIRE FROM THE COMPANY ON THE CLOSING
DATE, THE NOTE APPROPRIATELY COMPLETED IN CONFORMITY HEREWITH.
THE PURCHASE
PRICE OF THE NOTE SHALL BE THIRTY MILLION DOLLARS ($30,000,000.00).
2.02
FEES.
CONCURRENTLY WITH THE EXECUTION HEREOF, THE
COMPANY SHALL (A) PAY TO WHITNEY MEZZANINE MANAGEMENT COMPANY, LLC
A PLACEMENT
FEE OF $375,000 AND (B) REIMBURSE THE REASONABLE OUT-OF-POCKET EXPENSES
(INCLUDING, FEES, CHARGES AND DISBURSEMENTS OF COUNSEL AND CONSULTANTS) OF THE
PURCHASER INCURRED IN CONNECTION WITH (I) THE NEGOTIATION AND EXECUTION AND
DELIVERY OF THIS AGREEMENT AND THE OTHER INVESTMENT DOCUMENTS AND THEIR DUE
DILIGENCE INVESTIGATION, AND (II) THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND THE OTHER INVESTMENT DOCUMENTS, WHICH PAYMENTS SHALL BE MADE BY
WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT OR ACCOUNTS
DESIGNATED BY WMF.
UPON THE INITIAL RELEASE DATE WITH RESPECT TO THE
TRANSACTION, THE COMPANY SHALL PAY TO WHITNEY MEZZANINE MANAGEMENT COMPANY, LLC
AN ADDITIONAL FEE OF $375,000.
16
2.03
CLOSING.
THE PURCHASE AND ISSUANCE OF THE NOTE
SHALL TAKE PLACE AT THE CLOSING (THE "CLOSING") TO BE HELD AT THE OFFICES OF
GIBSON, DUNN & CRUTCHER LLP, 200 PARK AVENUE, NEW YORK, NEW YORK AT 10:00 A.M.
EASTERN STANDARD TIME, ON JANUARY 14, 2004 (THE "CLOSING DATE") OR SUCH OTHER
DATE OR TIME AS IS MUTUALLY AGREED BY THE PARTIES HERETO.
AT THE CLOSING,