TO WHICH, AMONG OTHER THINGS, THE BANK OF
NEW YORK WAS APPOINTED COLLATERAL AGENT FOR THE BENEFIT OF THE HOLDERS OF THE
CONVERTIBLE SENIOR SECURED NOTES AND FOR HOLDERS OF ADDITIONAL, FUTURE
INDEBTEDNESS OF BORROWER.
C.
BORROWER HAS PREVIOUSLY ENTERED INTO THAT CERTAIN CREDIT
AGREEMENT, DATED AS OF MARCH 27, 2008, AMONG BORROWER, THE SUBSIDIARY GUARANTORS
PARTY THERETO, THE LENDERS PARTY THERETO, JEFFERIES FINANCE LLC, AS SYNDICATION
AGENT, AND JEFFERIES FINANCE LLC, AS LEAD ARRANGER, DOCUMENTATION AGENT, BOOK
MANAGER, AND ADMINISTRATIVE AGENT, AND THE BANK OF NEW YORK, AS COLLATERAL AGENT
FOR THE SECURED PARTIES THEREUNDER (AS AMENDED, SUPPLEMENTED OR OTHERWISE
MODIFIED FROM TIME TO TIME, THE "EXISTING CREDIT AGREEMENT");
D.
IT IS THE INTENT OF THE PARTIES HERETO THAT THIS AGREEMENT (I) NOT
CONSTITUTE A NOVATION OF THE OBLIGATIONS AND LIABILITIES EXISTING UNDER THE
EXISTING CREDIT AGREEMENT, AND (II) AMEND AND RESTATE THE EXISTING CREDIT
AGREEMENT;
E.
BORROWER HAS REQUESTED THAT THE LENDERS AMEND AND RESTATE THE
EXISTING CREDIT AGREEMENT;
F.
THE COLLATERAL TRUST AGREEMENT CONTEMPLATED THAT BORROWER WOULD
ENTER INTO A "LOAN AGREEMENT" IN ORDER TO BORROW UP TO $40,000,000 IN AN
AGGREGATE PRINCIPAL AMOUNT OF WORKING CAPITAL LOANS PURSUANT TO A LOAN AGREEMENT
TO BE ENTERED AMONG BORROWER, ONE OR MORE SUBSIDIARY GUARANTORS AND ONE OR MORE
LENDERS, AND THAT THE OBLIGATIONS UNDER SUCH "LOAN AGREEMENT" WOULD BE SECURED
BY THE GRANT TO THE COLLATERAL AGENT FOR THE BENEFIT OF THE LENDERS UNDER SUCH
"LOAN AGREEMENT" OF A FIRST PRIORITY LIEN ON THE
PLEDGED COLLATERAL PURSUANT TO THE COLLATERAL DOCUMENTS THAT WILL RANK PRIOR TO
THE LIEN ON THE PLEDGED COLLATERAL SECURING THE CONVERTIBLE SENIOR SECURED NOTES
PURSUANT TO, AND SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN, THE
COLLATERAL TRUST AGREEMENT.
G.
THIS AGREEMENT IS THE "LOAN AGREEMENT" REFERRED TO IN THE
COLLATERAL TRUST AGREEMENT AND THE "WORKING CAPITAL FACILITY" REFERRED TO IN THE
CONVERTIBLE INDENTURE, AND THE OBLIGATIONS HEREUNDER (INCLUDING THE GUARANTEED
OBLIGATIONS) CONSTITUTE FIRST PRIORITY LIEN OBLIGATIONS (AS DEFINED IN THE
COLLATERAL TRUST AGREEMENT) SECURED ON A FIRST PRIORITY BASIS BY THE PLEDGED
COLLATERAL PURSUANT TO THE COLLATERAL DOCUMENTS.
H.
BORROWER HAS REQUESTED THAT THE LENDERS PROVIDE A REVOLVING CREDIT
FACILITY, AND THE LENDERS HAVE INDICATED THEIR WILLINGNESS TO LEND ON THE TERMS
AND CONDITIONS SET FORTH HEREIN.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and in the other Loan Documents, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01
Defined Terms.
As used in this Agreement, the following
terms shall have the meanings specified below:
"Acknowledgment to the Collateral Agent from Bank" shall have the meaning
assigned to such term in Section 5.19(b).
"Administrative Agent" shall have the meaning assigned to such term in the
preamble hereto and includes each other person appointed as the successor
administrative agent pursuant to Article X.
"Administrative Agent Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire in