ACTION OR PROCEEDING TO RECOVER ANY AMOUNTS DUE OR TO BECOME DUE WITH RESPECT TO
THE SUBORDINATED DEBT.
ON AND AFTER AUGUST 16, 2005, THE PURCHASER SHALL BE
ENTITLED TO EXERCISE THE COLLECTION OR ENFORCEMENT RIGHTS AND REMEDIES IT MAY
HAVE (IF ANY) UNDER SECTION 6P(IV) OF THE AGREEMENT, SUBJECT IN ALL RESPECTS TO
THE PROHIBITIONS ON PAYMENTS AND DISTRIBUTIONS DESCRIBED IN THE FOREGOING
SUBSECTION (A), WHICH SHALL REMAIN IN PLACE AS SET FORTH THEREIN, AND SUBJECT TO
ANY OTHER APPLICABLE RESTRICTIONS SET FORTH IN THE AGREEMENT; PROVIDED, THAT IN
NO EVENT SHALL THE PURCHASER BE ENTITLED TO ISSUE TO THE AGENT UNDER THE SENIOR
CREDIT AGREEMENT ANY WRITTEN NOTICE OF ITS INTENT TO EXERCISE ANY RIGHTS OR
REMEDIES UNDER THE AGREEMENT, APPLICABLE LAW OR OTHERWISE AT ANY TIME PRIOR TO
AUGUST 16, 2005 (IN FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, THE
PURCHASER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AMENDMENT, THE
CAPITALSOURCE EIGHTH AMENDMENT, OR ANY INSTRUMENT, AGREEMENT OR DOCUMENT
EXECUTED IN CONNECTION HEREWITH OR THEREWITH, SHALL BE DEEMED TO (X) LIMIT OR
IMPAIR THE AGENT'S RIGHT TO ISSUE A BLOCKAGE NOTICE (AS DEFINED IN THE
AGREEMENT) AND/OR (Y) COMMENCE THE COUNTING OF THE 179 DAY STANDSTILL PERIOD
REFERENCED IN SUBSECTION 6P(IV) OF THE AGREEMENT).
9.
AMENDMENT TO SECOND AMENDED NOTE.
SECTION 4(A)(II) CLAUSE (II)
OF THE SECOND AMENDED NOTE IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY AS
FOLLOWS:
any interest due and payable on any Interest Payment Date occurring after
December 31, 2003, up to but not including the Maturity Date, or any interest
accrued thereon; provided that the Company pays to the Registered Holder in cash
on each Interest Payment Date occurring on or after September 30, 2004, the
amount of interest that has accrued and become payable through such date
pursuant to Section 2 hereof to the extent and only if permitted under Section
7.11 of the Revolving Credit and Term Loan Agreement dated as of January 10,
2002, between CapitalSource Finance LLC and the Company, as amended;
10.
INTEREST. FROM AND AFTER THE DATE HEREOF, UNTIL PAYMENT IN FULL OF
ALL AMOUNTS DUE UNDER THIS AGREEMENT AND THE CONVERTIBLE NOTE, INTEREST ON ALL
OUTSTANDING AMOUNTS SHALL ACCRUE MONTHLY AT THE RATE OF 15% PER ANNUM SUBJECT TO
THE TERMS OF SECTION 6P OF THE AGREEMENT AS AMENDED HEREBY.
11.
BINDING ON SUCCESSORS AND ASSIGNS.
ALL THE TERMS AND PROVISIONS
OF THIS AMENDMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES
HERETO, THEIR RESPECTIVE SUCCESSORS, ASSIGNS AND LEGAL REPRESENTATIVES.
WHENEVER IN THIS AMENDMENT ANY OF THE PARTIES HERETO IS REFERRED TO, SUCH
REFERENCE SHALL BE DEEMED TO INCLUDE THE SUCCESSORS AND ASSIGNS OF SUCH PARTY.
4
12.
FURTHER ASSURANCES.
EACH OF THE COMPANY AND THE PURCHASER, AS THE
CASE MAY BE, SHALL DULY EXECUTE AND DELIVER, OR CAUSE TO BE EXECUTED AND
DELIVERED, SUCH FURTHER INSTRUMENTS AND PERFORM OR CAUSE TO BE PERFORMED SUCH
FURTHER ACTS AS MAY BE NECESSARY OR PROPER IN THE REASONABLE OPINION OF THE