SKY LAWS, RESULT IN A VIOLATION OF ANY
LAW, RULE, REGULATION, ORDER, JUDGMENT OR DECREE (INCLUDING, WITHOUT LIMITATION,
FEDERAL AND STATE SECURITIES LAWS AND REGULATIONS) APPLICABLE TO A QUADRANGLE
8
PARTY OR BY WHICH ANY OF THEIR PROPERTIES OR ASSETS ARE BOUND OR AFFECTED,
EXCEPT IN THE CASE OF CLAUSES (B) OR (C), WHERE SUCH CONFLICTS OR VIOLATIONS
WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON THEIR ABILITY TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
SECTION 3.4
CREDIT FACILITY.
THE CREDIT
FACILITY IS A VALID AND BINDING AGREEMENT OF ACQUISITION LLC AND QMFL AND IS IN
FULL FORCE WITH RESPECT TO SUCH PARTIES AND NEITHER ACQUISITION LLC NOR QMFL IS
IN DEFAULT OR BREACH IN ANY MATERIAL RESPECT UNDER THE TERMS OF THE CREDIT
FACILITY (EXCEPT ANY DEFAULT OR BREACH CAUSED BY THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY).
ACQUISITION LLC AND QMFL ARE THE ONLY
LENDERS UNDER THE CREDIT FACILITY, AND AS OF THE DATE OF THIS AGREEMENT, EACH
HOLDS THE AMOUNT OF PRINCIPAL DEBT SET FORTH UNDER ITS NAME ON THE SIGNATURE
PAGES HERETO.
THERE ARE NO OUTSTANDING AGREEMENTS, ARRANGEMENTS OR
UNDERSTANDINGS UNDER WHICH ACQUISITION LLC OR QMFL MAY BE OBLIGATED TO TRANSFER
ANY COMMITTED SUMS, PRINCIPAL DEBT OR OTHER OBLIGATIONS.
AS OF OR PRIOR TO THE
DATE OF THIS AGREEMENT, NEITHER ACQUISITION LLC NOR QMFL HAS SOLD, ASSIGNED OR
TRANSFERRED ANY CLAIMS WITH RESPECT TO THE CREDIT FACILITY, EXCEPT THAT IN
FEBRUARY OF 2004 ACQUISITION LLC ASSIGNED TO QMFL, AND QMFL ASSUMED FROM
ACQUISITION LLC, ONE-THIRD OF THE TOTAL COMMITTED SUMS (AS DEFINED IN THE CREDIT
FACILITY) AND PRINCIPAL DEBT (AS DEFINED IN THE CREDIT FACILITY), TOGETHER WITH
ONE-THIRD OF THE OTHER OBLIGATIONS (AS DEFINED IN THE CREDIT FACILITY).
SECTION 3.5
OWNERSHIP OF COMMON STOCK.
ACQUISITION INC. OWNS (AND WILL CONTINUOUSLY OWN THROUGH THE TIME OF THE
CLOSING) OF RECORD AND BENEFICIALLY 85,291,497 SHARES OF COMMON STOCK (SUBJECT
TO ADJUSTMENT AS A RESULT OF THE REVERSE STOCK SPLIT) (AND ACQUISITION INC. HAS
NOT SOLD, ASSIGNED OR TRANSFERRED ANY CLAIMS WITH RESPECT TO SUCH SHARES OF
COMMON STOCK, AND THROUGH THE TIME OF THE CLOSING WILL NOT SELL, ASSIGN OR
TRANSFER ANY CLAIMS WITH RESPECT TO SUCH SHARES OF COMMON STOCK); PROVIDED, THAT
ACQUISITION INC. SHALL BE ENTITLED TO TRANSFER ANY SUCH SHARES OF COMMON STOCK
TO AN AFFILIATE, TO THE EXTENT SUCH AFFILIATE AGREES IN WRITING, REASONABLY
ACCEPTABLE TO POI, TO BE BOUND BY ALL OF THE PROVISIONS APPLICABLE HEREUNDER OR
UNDER THE EQUITY STANDSTILL AGREEMENT TO ACQUISITION INC.
SECTION 3.6
LIENS. THE CREDIT FACILITY IS
NOT SUBJECT TO ANY LIEN.
THE EXECUTION AND DELIVERY OF, AND THE PERFORMANCE BY
THE QUADRANGLE PARTIES OF THEIR OBLIGATIONS UNDER, THIS AGREEMENT WILL NOT
RESULT IN THE CREATION OF ANY LIEN UPON THE CREDIT FACILITY.
SECTION 3.7
INVESTMENT REPRESENTATIONS.
THE QUADRANGLE PARTIES UNDERSTAND THAT THE NEW SHARES TO BE ISSUED TO
ACQUISITION LLC AND QMFL PURSUANT TO THIS AGREEMENT WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT BASED ON AN EXEMPTION FROM REGISTRATION PROVIDED BY SECTION
4(2) OF