2007 TRANCHE B NOTE-B, A
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FEE IN THE AMOUNT EQUAL 50 BASIS POINTS OF THE PRINCIPAL AMOUNT OF THE 2007
TRANCHE B NOTE-B.
IN ADDITION, THE COMPANY WILL REIMBURSE THE PURCHASERS FOR
THE REASONABLE AND DOCUMENTED FEES AND EXPENSES OF THEIR LEGAL COUNSEL IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE FIRST AMENDMENT AND THE NEW
DOCUMENTS.
9.
CONDITIONS TO EFFECTIVENESS OF SECOND AMENDMENT.
THIS SECOND
AMENDMENT SHALL BE EFFECTIVE UPON THE FIRST DATE UPON WHICH THE FOLLOWING
CONDITIONS SHALL HAVE BEEN SATISFIED TO THE PURCHASERS' REASONABLE SATISFACTION:
(I)
RECEIPT BY THE PURCHASERS OF THIS SECOND AMENDMENT DULY EXECUTED
BY THE COMPANY AND PARENT, AND RECEIPT BY THE PURCHASERS OF AN ACKNOWLEDGEMENT
OF CONTINUING GUARANTY AND CONSENT BY THE MEMBERS OF THE COMPANY GROUP OTHER
THAN THE COMPANY, SUBSTANTIALLY IN THE FORM OF THE ATTACHED EXHIBIT C;
(II)
RECEIPT BY THE PURCHASERS OF AN EXECUTED OPINION OF GOWLINGS
LAFLEUR HENDERSON LLP, DATED THE DATE HEREOF AND IN FORM AND SUBSTANCE
REASONABLY ACCEPTABLE TO THE PURCHASERS;
(III)
RECEIPT OF AN AGREEMENT OF THE SERIES A INVESTORS (AS THAT TERM
IS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) THAT THE 2007 WARRANTS
CONSTITUTE ABRY WARRANTS FOR PURPOSES OF THE REGISTRATION RIGHTS AGREEMENT, IN
FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE PURCHASERS,
(IV)
RECEIPT BY THE PURCHASERS OF A CERTIFICATE OF THE SECRETARY OR AN
ASSISTANT SECRETARY OF THE COMPANY AND PARENT CERTIFYING (I) THAT ATTACHED
THERETO IS A TRUE AND COMPLETE COPY OF THE RESOLUTIONS ADOPTED BY THE BOARD OF
DIRECTORS OF THE COMPANY AND PARENT, AUTHORIZING THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS SECOND AMENDMENT AND THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY, AND (II) AS TO THE INCUMBENCY AND GENUINENESS OF THE
SIGNATURE OF EACH OFFICER OF THE COMPANY AND PARENT EXECUTING THIS SECOND
AMENDMENT OR ANY OF THE OTHER DOCUMENTS, INSTRUMENTS AND AGREEMENTS EXECUTED IN
CONNECTION HEREWITH;
(V)
THE COMPANY SHALL HAVE PAID IN FULL THE SECOND AMENDMENT CLOSING
FEE; AND
(VI)
RECEIPT BY THE PURCHASERS OF SUCH OTHER DOCUMENTS, INSTRUMENTS AND
AGREEMENTS AS THE PURCHASERS OR THEIR SPECIAL COUNSEL MAY REQUEST IN CONNECTION
HEREWITH.
10.
MISCELLANEOUS.
THE COMPANY AND THE PURCHASERS AGREE THAT (I) THIS
SECOND AMENDMENT AND THE 2007 TRANCHE B NOTES AND THE 2007 WARRANTS TO BE ISSUED
AS PROVIDED IN SECTION 1 OF THIS SECOND AMENDMENT CONSTITUTE TRANSACTION
AGREEMENTS, INCLUDING FOR PURPOSES OF SECTION 10 OF THE NOTE PURCHASE AGREEMENT,
AND (II) THE 2007 TRANCHE B NOTES CONSTITUTE NOTES FOR THE PURPOSES OF THE NOTE
PURCHASE AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS.
THE PURCHASERS AND THE
COMPANY AGREE THAT THE TRANSACTION AGREEMENTS ARE HEREBY DEEMED AMENDED IN ALL
RESPECTS AS MAY BE NECESSARY IN ORDER TO GIVE EFFECT TO THE
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FOREGOING SENTENCE.
ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS SECOND AMENDMENT AND THE
ANNEXES, EXHIBITS AND SCHEDULES HERETO 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