debtors and debtors in possession
under the Bankruptcy Code; and
WHEREAS, the Lenders are willing to make available to the Borrowers Postpetition
(as defined below) loans in an amount up to $30,000,000 upon the terms and
subject to the conditions set forth herein, and to consider providing an
additional $45,000,000 as described herein; and
WHEREAS, each of the Borrowers has agreed to secure its obligations to the
Administrative Agent and the Lenders hereunder with, inter alia, security
interests in, and liens on, all of its property and assets, whether real or
personal, tangible or intangible, now existing or hereafter acquired or arising,
with certain exceptions, all as more fully provided herein; and
WHEREAS, capitalized terms used in this Agreement shall have the meanings
ascribed to them in Annex A and, for purposes of this Agreement and the other
Loan Documents, the rules of construction set forth in Annex A shall govern. All
Annexes, Schedules, Exhibits and other attachments (collectively, "Appendices")
hereto, or expressly identified in this Agreement, are incorporated herein by
reference, and taken together with this Agreement, shall constitute but a single
agreement. These Recitals shall be construed as part of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
parties hereto agree as follows:
1.
AMOUNT AND TERMS OF CREDIT
1.1
CREDIT FACILITIES.
(A)
LOAN.
(I)
SUBJECT TO THE TERMS AND CONDITIONS HEREOF, EACH LENDER AGREES TO
MAKE TO THE BORROWERS, JOINTLY AND SEVERALLY, TERM LOANS (COLLECTIVELY, THE
"LOAN" OR THE "LOANS") IN AN AMOUNT EQUAL TO SUCH LENDER'S PRO RATA SHARE OF THE
FOLLOWING AMOUNTS: (I) ON THE CLOSING DATE, A TERM LOAN IN THE AGGREGATE
PRINCIPAL AMOUNT EQUAL TO $30,000,000 (THE "STAGE 1 LOAN"), AND (II) IN THE SOLE
DISCRETION OF THE LENDERS, ON THE STAGE 2 CLOSING DATE, A TERM LOAN IN THE
AGGREGATE PRINCIPAL AMOUNT OF UP TO $45,000,000 (THE "STAGE 2 LOAN"). THE LOANS
SHALL BE EVIDENCED BY PROMISSORY NOTES SUBSTANTIALLY IN THE FORM OF EXHIBIT A
(EACH A "NOTE" AND COLLECTIVELY THE "NOTES"). EACH NOTE SHALL REPRESENT THE
JOINT AND SEVERAL OBLIGATION OF EACH BORROWER TO PAY THE AMOUNT OF THE
APPLICABLE LENDER'S LOAN, TOGETHER WITH INTEREST THEREON AS PRESCRIBED IN
SECTION 1.5. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN ANY
OTHER LOAN DOCUMENT, THE COMMITMENTS SHALL TERMINATE UPON THE FUNDING OF THE
STAGE 1 LOAN PURSUANT TO SECTION 2.1.
(II)
THE AGGREGATE OUTSTANDING PRINCIPAL BALANCE OF THE LOAN SHALL BE
DUE AND PAYABLE IN FULL IN IMMEDIATELY AVAILABLE FUNDS ON THE MATURITY DATE, IF
NOT SOONER PAID IN FULL. NO PAYMENT WITH RESPECT TO THE LOAN MAY BE REBORROWED.
(III)
EACH PAYMENT OF PRINCIPAL WITH RESPECT TO THE LOAN SHALL BE PAID
TO THE ADMINISTRATIVE AGENT FOR THE RATABLE BENEFIT OF EACH LENDER, RATABLY IN
PROPORTION TO EACH SUCH LENDER'S RESPECTIVE COMMITMENT.
1.2
PREPAYMENTS.
(A)
VOLUNTARY PREPAYMENTS. BORROWERS MAY AT ANY TIME ON AT LEAST THREE
(3) BUSINESS DAYS PRIOR WRITTEN NOTICE TO THE