AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE THE PRODUCT OF
NEGOTIATIONS AMONG AND HAVE BEEN REVIEWED BY COUNSEL TO AGENT, LENDERS,
HOLDINGS, BORROWER, EACH ADDITIONAL BORROWER (IF ANY), EACH GUARANTOR AND THE
OTHER PARTIES HERETO, AND ARE THE PRODUCT OF ALL SUCH PARTIES.
ACCORDINGLY,
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL NOT BE CONSTRUED AGAINST AGENT
OR ANY OTHER LENDER MERELY BECAUSE OF AGENT'S OR SUCH LENDER'S INVOLVEMENT IN
THEIR PREPARATION.
1.3
ACCOUNTING PRINCIPLES.
UNLESS THE CONTEXT OTHERWISE CLEARLY
REQUIRES, ALL ACCOUNTING TERMS NOT EXPRESSLY DEFINED HEREIN SHALL BE CONSTRUED,
AND ALL FINANCIAL COMPUTATIONS REQUIRED UNDER THIS AGREEMENT SHALL BE MADE, IN
ACCORDANCE WITH GAAP, CONSISTENTLY APPLIED; PROVIDED, HOWEVER, THAT, IF GAAP
SHALL HAVE BEEN MODIFIED AFTER THE CLOSING DATE AND THE APPLICATION OF SUCH
MODIFIED GAAP SHALL HAVE A MATERIAL EFFECT ON SUCH FINANCIAL COMPUTATIONS, THEN
SUCH COMPUTATIONS SHALL BE MADE AND SUCH FINANCIAL STATEMENTS, CERTIFICATES AND
REPORTS SHALL BE PREPARED, AND ALL ACCOUNTING TERMS NOT OTHERWISE DEFINED HEREIN
SHALL BE CONSTRUED, IN ACCORDANCE WITH GAAP AS IN EFFECT PRIOR TO SUCH
MODIFICATION, UNLESS AND UNTIL MAJORITY LENDERS, HOLDINGS AND BORROWER SHALL
HAVE AGREED UPON THE TERMS OF THE APPLICATION OF SUCH MODIFIED GAAP.
SECTION 2.
THE LOANS
2.1
TERMINATION OF THE COMMITMENTS.
AS OF THE DATE OF THIS AGREEMENT,
ALL COMMITMENTS (UNDER AND AS DEFINED IN THE SECOND AMENDED AND RESTATED CREDIT
AGREEMENT) ARE HEREBY TERMINATED AND LENDERS SHALL NOT BE OBLIGATED TO MAKE ANY
FURTHER LOANS TO BORROWER.
2.2
THE LOANS, PAYDOWN AND CONVERSION.
PURSUANT TO THE SECOND AMENDED
AND RESTATED CREDIT AGREEMENT, EACH LENDER MADE LOANS (EACH A "LOAN" AND,
COLLECTIVELY, THE "LOANS") TO BORROWER AND ADDITIONAL BORROWER IN AN AGGREGATE
PRINCIPAL AMOUNT OF APPROXIMATELY $265,000,000.
ON THE CLOSING DATE, AND
PURSUANT TO THE TERMS OF THE EXCHANGE AGREEMENT AND THIS AGREEMENT (A) BORROWER
SHALL CAUSE TO BE RELEASED TO AGENT, ON BEHALF OF LENDERS, $20,000,000 IN
IMMEDIATELY AVAILABLE FUNDS, (B) BORROWER SHALL ISSUE THE NOTE, (C) LENDERS
SHALL EXCHANGE ALL OTHER AMOUNTS OWED UNDER THE ORIGINAL NOTES FOR SERIES F
PREFERRED STOCK, AND (D) LENDERS SHALL DELIVER THE WARRANTS TO HOLDINGS AND ALL
RIGHTS OF LENDERS THEREUNDER SHALL BE EXTINGUISHED.
2.3
EVIDENCE OF INDEBTEDNESS.
AS ADDITIONAL EVIDENCE OF THE
INDEBTEDNESS OF BORROWER AND ADDITIONAL BORROWER TO LENDERS RESULTING FROM THE
LOANS, BORROWER AND ADDITIONAL BORROWER SHALL EXECUTE AND DELIVER THE NOTE.
ADDITIONALLY, PAYMENTS MADE BY BORROWER AND ADDITIONAL BORROWER WITH RESPECT TO
THE NOTE SHALL BE EVIDENCED BY THE RECORDS OF AGENT AND ONE
13
OR MORE LOAN ACCOUNTS MAINTAINED BY EACH LENDER IN THE ORDINARY COURSE OF
BUSINESS.
THE LOAN ACCOUNTS AND RECORDS MAINTAINED BY AGENT AND EACH LENDER
SHALL BE CONCLUSIVE ABSENT MANIFEST ERROR OF THE AMOUNT OF THE LOANS MADE BY
LENDERS TO BORROWER AND THE INTEREST AND PAYMENTS THEREON, IF ANY.
ANY FAILURE
SO TO RECORD OR ANY ERROR IN DOING SO SHALL NOT, HOWEVER, LIMIT OR OTHERWISE
AFFECT THE OBLIGATION OF BORROWER HEREUNDER TO PAY ANY AMOUNT OWING WITH RESPECT
TO THE LOANS.
2.4
REPAYMENT PROVISIONS
(A)
PRINCIPAL