PERIOD EXCEEDS THE
RATIO CORRESPONDING TO SUCH QUARTERLY TEST PERIOD IN THE TABLE SET FORTH BELOW:
Quarterly Test Period:
If the Total Debt
Ratio is Greater Than:
Then the Total Debt
Ratio Fee Installment
Amount Shall Be:
Ending on September 30, 2005
1.25:1.00
$
1,000,000
Ending on December 31, 2005 and ending on the final day of each Quarterly Test
Period thereafter
1.25:1.00
$
500,000
If an installment of the Total Debt Ratio Fee is due in accordance with the
foregoing table, such installment shall be added to the principal amount due to
Purchaser under this Agreement and Convertible Note subject to the terms of
Section 6P of the Agreement as amended hereby.
6.
AMENDMENT FEE.
THE COMPANY SHALL PAY TO PURCHASER $250,000 FOR
THE NONREFUNDABLE AMENDMENT FEE (THE "SEVENTH AMENDMENT FEE"), WHICH SHALL BE
ADDED TO THE PRINCIPAL AMOUNT DUE TO PURCHASER UNDER THE AGREEMENT AND
CONVERTIBLE NOTE SUBJECT TO THE TERMS OF SECTION 6P OF THE AGREEMENT AS AMENDED
HEREBY.
7.
CONSENT TO CAPITALSOURCE EIGHTH AMENDMENT.
THE PURCHASER
CONSENTS TO THE EXECUTION AND DELIVERY BY THE COMPANY OF THE CAPITALSOURCE
EIGHTH AMENDMENT AND AFFIRMS THAT THE PROVISIONS OF THE CAPITALSOURCE EIGHTH
AMENDMENT DO NOT CONSTITUTE A BREACH OR EVENT OF DEFAULT UNDER THE AGREEMENT OR
THE CONVERTIBLE NOTES AND THAT THE AMORTIZING ADVANCE AMOUNT CONSTITUTES SENIOR
INDEBTEDNESS.
8.
BLOCKAGE.
NOTWITHSTANDING ANY PROVISION SET FORTH IN SECTION 6P
OF THE AGREEMENT OR ANY OTHER PROVISION OF THE AGREEMENT OR ANY OTHER INVESTMENT
DOCUMENT:
(A)
UNTIL THE DATE UPON WHICH THE OBLIGATIONS (AS DEFINED IN THE
SENIOR CREDIT AGREEMENT) OWED TO THE AGENT AND LENDERS UNDER THE SENIOR CREDIT
AGREEMENT HAVE BEEN IRREVOCABLY REPAID IN FULL IN CASH, THE COMPANY MAY NOT MAKE
AND THE PURCHASER OR ANY SUCCESSOR IN INTEREST MAY NOT RECEIVE OR RETAIN ANY
PAYMENT OR DISTRIBUTION (IN CASH, IN KIND, IN PROPERTIES OR SECURITIES, BY
SET-OFF OR OTHERWISE, EXCEPT THAT THE HOLDERS OF THE SUBORDINATED DEBT MAY
ACCRUE PAYMENT-IN-KIND INTEREST AND FEES) IN RESPECT OF THE SUBORDINATED DEBT;
PROVIDED, HOWEVER, THAT IF: (I) THE AGENT AND LENDERS UNDER THE SENIOR CREDIT
AGREEMENT EXTEND THE LAST DAY OF THE TERM LOAN TERM (AS DEFINED IN THE SENIOR
CREDIT AGREEMENT AS IN EFFECT ON THE DATE HEREOF) OR THE REVOLVING FACILITY TERM
(AS DEFINED IN THE SENIOR CREDIT AGREEMENT AS IN EFFECT ON THE DATE HEREOF)
BEYOND THE MATURITY DATE (AS DEFINED IN THE SECOND AMENDED NOTE) AND (II) NO
EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING UNDER SECTION VIII(A) OF THE
SENIOR CREDIT AGREEMENT AS IN EFFECT ON THE DATE HEREOF, THEN, AS OF THE
MATURITY DATE, THIS SECTION 8(A) SHALL NO
3
LONGER HAVE ANY EFFECT AND THE PROVISIONS OF SECTION 6P AS IN EFFECT AS OF THE
DATE OF THE SIXTH AMENDMENT SHALL GOVERN THE RIGHTS OF THE PURCHASER.
(B)
FROM THE DATE HEREOF THROUGH AUGUST 15, 2005, PROVIDED THAT
OBLIGATIONS UNDER THE SENIOR CREDIT AGREEMENT REMAIN OUTSTANDING, THE PURCHASER
OR ANY SUCCESSOR IN INTEREST MAY NOT EXERCISE ANY REMEDIES OR COMMENCE ANY