{"id":41331,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/subordinated-note-restructuring-agreement-boots-amp-amp-coots.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"subordinated-note-restructuring-agreement-boots-amp-amp-coots","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/subordinated-note-restructuring-agreement-boots-amp-amp-coots.html","title":{"rendered":"Subordinated Note Restructuring Agreement – Boots & Coots International Well Control Inc. and Prudential Insurance Co. of America"},"content":{"rendered":"EXECUTION COPY\n\n\n BOOTS & COOTS INTERNATIONAL WELL CONTROL, INC.\n 777 POST OAK BOULEVARD, SUITE 800\n HOUSTON, TEXAS 77056\n\n SUBORDINATED NOTE RESTRUCTURING AGREEMENT\n -----------------------------------------\n\nAs of December 28, 2000\n\nThe Prudential Insurance Company of America\nc\/o Prudential Capital Group\nFour Gateway Center\n100 Mulberry Street\nNewark, New Jersey 07102-4069\n\nLadies and Gentlemen:\n\n This Subordinated Note Restructuring Agreement (this \"RESTRUCTURING\nAGREEMENT\") is entered into between the undersigned, Boots & Coots International\nWell Control, Inc., a Delaware corporation (the \"COMPANY\") and you.\n\n WHEREAS, the Company and you have entered into a Subordinated Note and\nWarrant Purchase Agreement dated as of July 23, 1998 (the \"PURCHASE AGREEMENT\"),\npursuant to which the Company issued to you its 11.28% senior subordinated notes\nin the aggregate principal amount of $30,000,000 to mature July 23, 2006 (the\n\"11.28% NOTES\") in exchange for payment of 100% of the aggregate principal\namount thereof (the \"PURCHASE PRICE\");\n\n WHEREAS, pursuant to the Purchase Agreement, the Company issued and sold to\nyou a warrant evidencing rights to purchase an aggregate of 3,165,396 shares of\ncommon stock, par value $0.0000l per share of the Company (the \"COMMON STOCK\")\nat an initial exercise price per share of $6.70 (the \"ORIGINAL WARRANT\" and,\ntogether with the 11.28% Notes, the \"PREEXISTING OBLIGATIONS\");\n\n WHEREAS, the Company and you desire to restructure the Company's\nobligations under the Purchase Agreement and the Preexisting Obligations by\nexecuting and delivering this Restructuring Agreement, and thereby terminating\nthe Purchase Agreement and waiving any all past and present defaults by the\nCompany thereunder; and\n\n WHEREAS, pursuant to this Restructuring Agreement, you agree to cancel and\nterminate the 11.28% Notes and the Warrant in consideration for the Company's\ndeliveries and obligations hereunder, including, but not limited to, payment in\nfull of the Closing Payments, and the issuance to you of the Replacement Notes,\nthe Replacement Warrant, the New Warrant, and the Preferred Stock (all as\ndefined herein).\n\n\n\n NOW, THEREFORE, in consideration of the foregoing, the Company hereby\nagrees with you as follows:\n\n\n1. CASH PAYMENTS.\n\n 1.1 CLOSING PAYMENT. On the date of closing, which shall be December\n28, 2000 (the \"CLOSING DATE\" or \"DATE OF CLOSING\"), the Company will pay you the\nsum of $12,000,000 in immediately available funds plus the Expenses Cash Payment\n(as defined in Section 12.2 hereof)(the \"CLOSING PAYMENT\"), by wire transfer to\nthe following account:\n\n Bank of New York\n New York, NY\n Account Name: Prudential Managed Account\n ABA #021-000-018\n Acct. # 890-0304-391\n\n\n 1.2 CREDIT FACILITY PAYMENT. If and when the Company enters into a new\ncredit facility or commercial financing arrangement or amends and restates its\nexisting credit facility with a commercial lender the Company will on the\nclosing date thereof (the \"CREDIT FACILITY PAYMENT DATE\"), pay you the sum of\n$500,000 in immediately available funds (the \"CREDIT FACILITY PAYMENT\"), by wire\ntransfer to the following account or to such other account which you shall\ndesignate by notice to the Company:\n\n Bank of New York\n New York, NY\n Account Name: Prudential Managed Account\n ABA #021-000-018\n Acct. # 890-0304-391\n\n\n2. AUTHORIZATION OF ISSUE OF SECURITIES.\n\n 2.1 AUTHORIZATION OF ISSUE OF NOTES. The Company will authorize the\nissue of its senior subordinated notes in the aggregate principal amount of\n$7,000,000 plus the Expenses Note Amount (as defined in Section 12.2 herein), to\nbe dated the Closing Date, to mature December 28, 2005, to bear interest at\n12.00% per annum, compounded quarterly, on the unpaid balance thereof from the\ndate thereof until the principal thereof shall have become due and payable and\non overdue payments at the respective rates specified therein; such subordinated\nnotes shall be substantially in the form of Exhibit A attached hereto. The term\n\"NOTES\" as used herein shall include each such senior subordinated note\ndelivered pursuant to any provision of this Restructuring Agreement and each\nsuch senior subordinated note delivered in substitution or exchange for any\nother Note pursuant to any such provision. Capitalized terms used herein and\nnot otherwise defined have the meanings specified in Section 11.\n\n 2.2 AUTHORIZATION OF ISSUE OF PREFERRED STOCK. (a) The Company will\nauthorize the issue of $5,000,000 aggregate face value of Series E Cumulative\nSenior Preferred Stock, par value $0.00001 per share (the \"SERIES E STOCK\") and\n$8,000,000 aggregate face value of Series G Cumulative Convertible Preferred\nStock, par value $0.00001 per share (the \"SERIES G STOCK\"). The Company will\nalso authorize the issue of up to 60,775 of Series F Cumulative Senior Preferred\n\n\n 2\n\nStock, which shall be issuable in exchange for Series E Stock and Series E PIK\nShares (as defined below) beginning five years from the date of issuance of the\nSeries E Stock (the \"SERIES F STOCK\" and, when issued, together with the Series\nE Stock, Series E PIK Shares, Series G Stock and Series G PIK Shares, the\n\"PREFERRED STOCK\").\n\n (b) Subject to the terms, conditions and adjustments set forth in\nthe Certificate of Designation of the rights and preferences relating to the\nSeries E Stock (the \"SERIES E DESIGNATION\"); as substantially set forth in the\nform of Exhibit B: the Series E Stock will bear a cumulative dividend at 10%\nper annum, compounded semi-annually. The dividend may be paid in the form of\ncash or, for a period of two years from the date of issuance, in whole or in\npart in additional shares of Series E Stock having, for each such dividend\npayment, an aggregate face value equal to the cash value of such dividend to be\npaid in shares (such shares, \"SERIES E PIK SHARES\"). When issued, such Series E\nPIK Shares shall have all of the rights, privileges and obligations of the\nSeries E Stock. Three years from the date of issuance, the cumulative dividend\non the Series E Stock (including the Series E PIK Shares) shall increase to 12%\nper annum, compounded semi-annually. The Series E Stock may be redeemed (i)\nwithin one year from the date of issuance, inclusive, at the Company's option,\nat a price of 83.33% of the Adjusted Face Value (as defined in the Series E\nDesignation) of such shares plus all accrued and unpaid dividends, and (ii) from\none year from the date of issuance, at the Company's option, at a price equal to\nthe Adjusted Face Value of such shares; provided, that for purposes of each such\n --------\nredemption, Series E PIK Shares must also be redeemed at the Adjusted Face Value\nof such shares, and provided, further, that beginning five years from the date\n -------- -------\nof issuance of such Series E Stock, the Company must notify holders of Series E\nStock of any intent to redeem any such shares in writing no later than 30 days\nprior to the proposed closing of such redemption. The Series E Stock shall rank\npari passu with the Company's Series A Cumulative Senior Preferred Stock (the\n\"SERIES A STOCK\") and the Series F Stock, and any other series of stock\nauthorized and issued by the Board of Directors as pari passu with the Series E\nStock.\n\n (c) Subject to the terms, conditions and adjustments set\nforth in the Certificate of Designation of the rights and preferences relating\nto the Series F Stock; as substantially set forth in the form of Exhibit C: the\nSeries F Stock will bear a cumulative dividend at 12% per annum, compounded\nsemi-annually. The Series F Stock may be converted at any time into shares of\nCommon Stock at a conversion price equal to 85% of the average, for 90 trading\ndays preceding the date of notice to the Company of such conversion, of the high\nand low trading prices of the Common Stock on any national securities exchange\nor national automatic quotation system where the Common Stock is listed for\ntrading, or if no such listing is in effect, the fair market value per share as\ndetermined in good faith by the Board of Directors. The Series F Stock shall\nrank pari passu with the Series A Stock and the Series E Stock, and any other\nseries of stock authorized and issued by the Board of Directors as pari passu\nwith the Series F Stock.\n\n\n 3\n\n (d) Subject to the terms, conditions and adjustments set forth in\nthe Certificate of Designation of the rights and preferences relating to the\nSeries G Stock; as substantially set forth in the form of Exhibit D: the Series\nG Stock will bear a cumulative dividend at 10% per annum, compounded\nsemi-annually. The dividend may be paid in the form of cash or, for a period of\ntwo years from the date of issuance, in whole or in part in additional shares of\nSeries G Stock having, for each such dividend payment, an aggregate face value\nequal to the cash value of such dividend to be paid in shares (such shares,\n\"SERIES G PIK SHARES\"). When issued, such Series G PIK Shares shall have all of\nthe rights, privileges and obligations of the Series G Stock. The Series G\nStock may be converted, at any time beginning September 3, 2001, into shares of\nCommon Stock at a conversion price of $1.19 per share, subject to adjustment in\nthe event of stock split, stock dividend, recapitalization, reorganization or\nother similar event. The Series G Stock shall rank pari passu with the\nCompany's 10% Junior Redeemable Convertible Preferred Stock (the \"10% STOCK\"),\nSeries C Convertible Junior Preferred Stock, Series D Cumulative Junior\nPreferred Stock, Series H Stock, and any other series of stock authorized and\nissued by the Board of Directors as pari passu with the Series G Stock.\n\n 2.3 AUTHORIZATION OF AMENDMENT OF ORIGINAL WARRANT AND ISSUE OF NEW\nWARRANTS. The Company will also authorize the (a) amendment and restatement of\nthe Original Warrant to reduce the exercise price thereof to $0.625 per share\nand to cause such warrant to conform in all respects to Exhibit E hereto and (b)\nissuance of its Common Stock Purchase Warrants (such amended Original Warrant\nand any such Common Stock Purchase Warrants which have been issued pursuant to\nthis Restructuring Agreement, and any such Common Stock Purchase Warrants which\nmay be issued in substitution or exchange therefor, herein collectively called\nthe \"WARRANTS\") evidencing rights to purchase from the Company an aggregate of\n8,800,000 shares of Common Stock, at an exercise price per share of $0.625, at\nany time or from time to time, and prior to 5:00 p.m., New York City time, on\nthe later of (i) July 23, 2008 and (ii) six months after the date the Notes are\nfully retired, all subject to the terms, conditions and adjustments set forth in\nsuch warrants; such Common Stock Purchase Warrant shall be substantially in the\nform of Exhibit F attached hereto.\n\n3. TRANSFER OF SECURITIES.\n\n 3.1 TRANSFER. The Company hereby agrees to provide to you and, subject\nto the terms and conditions herein set forth, you agree to or accept from the\nCompany on the Closing Date:\n\n (a) the Closing Payment and, if owing, the Credit Facility\nPayment;\n\n (b) Notes in the aggregate principal amount of $7,000,000 plus the\nExpenses Note Amount, registered in your name or the name of your nominee, in\nthe denomination or denominations specified by you to the Company;\n\n (c) shares of Series E Stock in the aggregate face amount of\n$5,000,000, registered in your name or the name of your nominee in the\ndenomination or denominations specified by you to the Company;\n\n\n 4\n\n (d) shares of Series G Stock in the aggregate face amount of\n$8,000,000, registered in your name or the name of your nominee in the\ndenomination or denominations specified by you to the Company;\n\n (e) the Warrants, in the form of two Warrant certificates, one\nexercisable for the purchase from the Company of 8,800,000 shares of Common\nStock, and one exercisable for the purchase from the Company of 3,165,000 shares\nof Common Stock (the Warrants, together with the items listed in subsections\n(a), (b), (c) and (d) of this Section 3.1, the Closing Payment and, when\napplicable, the Credit Facility Payment, the \"COMPANY CLOSING DELIVERIES\"),\n\nas full and complete consideration and satisfaction of such Preexisting\nObligations. Upon receipt of the instruments and documents evidencing the\nPreexisting Obligations, subject to Section 12.2 hereto, all Preexisting\nObligations including Preexisting Obligations arising from events of default\nunder the Purchase Agreement, the Preexisting Obligations, or any document\nexecuted or delivered in connection therewith, shall be hereby and forever\nwaived by you.\n\n 3.2 CLOSING. The Company will provide you the Company Closing\nDeliveries on the Closing Date at 10:00 am New York time, at the offices of\nWeil, Gotshal & Manges LLP at 767 Fifth Avenue, New York, New York 10153.\n\n 3.3 CALL OPTION. Notwithstanding anything contained in this Purchase\nAgreement to the contrary:\n\n (a) from the date of execution of this Restructuring\nAgreement through June 30, 2001, the Company may elect to and pay you in one\npayment in immediately available funds, the sum of $18,000,000 plus the sum of\nthe Expenses Note Amount, all accrued but unpaid interest and dividends on the\nNotes, the Series E Stock and the Series G Stock as of the date thereof plus the\nface amount of any Series E PIK Shares (plus all accrued but unpaid interest and\ndividends thereon) or Series G PIK Shares (plus all accrued but unpaid interest\nand dividends thereon) issued on Series E Stock and Series G Stock,\nrespectively, minus the amount of the Credit Facility Payment if the Credit\nFacility Payment had theretofore been paid by the Company to you (the \"CALL\nOPTION PRICE\") by wire transfer to an account which you shall designate by\nnotice to the Company, in exchange for the immediate surrender to the Company\nfor cancellation and retirement:\n\n (i) the Notes;\n\n (ii) the Series E Stock;\n\n (iii)the Series E PIK Shares;\n\n (iv) the Series G Stock;\n\n (v) the Series G PIK Shares; and\n\n\n 5\n\n (vi) the Warrants.\n\n (b) from July 1, 2001 through January 2, 2002, the Company may\nelect to and pay you in one payment the Call Option Price by wire transfer to an\naccount which you shall designate by notice to the Company, in exchange for the\nimmediate surrender to the Company for cancellation and retirement:\n\n (i) the Notes;\n\n (ii) the Series E Stock;\n\n (iii)the Series E PIK Shares;\n\n (iv) the Series G Stock; and\n\n (v) the Series G PIK Shares.\n\n 3.4 ORIGINAL ISSUE DISCOUNT. The Company and you hereby acknowledge\nand agree that: (i) the fair market value of the Warrants on their date of\nissuance is equal to an amount which is less than the product of (a) one-quarter\nof one percent (0.25%) of the stated redemption price at maturity (as such term\nis defined in the Code) of the Notes and (b) the number of complete years to\nmaturity of the Notes; (ii) a portion of the purchase price of the Notes which\nis less than the product described in clause (i), above, will be allocable to\nthe Warrants pursuant to Treas. Reg. 1.1273-2(h), with the balance of the\npurchase price of the Notes allocable to the Notes; and (iii) pursuant to Treas.\nReg. 1.1273, the original issue discount on the Notes shall be considered to be\nzero. The foregoing agreement shall be applicable for all United States\nfederal, state and local tax purposes of the Company and you.\n\n4. CONDITIONS PRECEDENT. Your obligation to accept the transfer of the\nCompany Closing Deliveries and to release the Company from the Preexisting\nObligations at the Closing hereunder is subject to the fulfillment, to your\nsatisfaction, on or before the Date of Closing, of the following conditions:\n\n 4.1 CERTAIN DOCUMENTS. You shall have received the following, each\ndated the Date of Closing (unless a different date is indicated below), and each\nin form, scope and substance reasonably satisfactory to you:\n\n (a) the Notes to be acquired by you;\n\n (b) the Preferred Stock to be acquired by you;\n\n (c) the Warrants to be acquired by you;\n\n (d) certified copies of the resolutions of the Board of Directors\nof each of the Transaction Parties approving this Restructuring Agreement, the\nClosing Payment, the Credit Facility Payment, the Preferred Stock, the Warrants,\nthe Notes and each of the other Note Documents to which each is or is to be a\nparty, and certified copies of all documents evidencing other reasonably\nnecessary corporate action and governmental approvals, if any, with respect to\neach of the Note Documents to which each is a party;\n\n\n 6\n\n (e) a certificate of the Secretary or an Assistant Secretary\nof each of the Transaction Parties certifying the names and true signatures of\nthe officers of such Transaction Party authorized to sign the Restructuring\nAgreement, the Preferred Stock, the Warrants and the Note Documents to which it\nis a party and the other documents to be delivered hereunder by such Transaction\nParty;\n\n (f) certified copies of the Certificate or Articles of\nIncorporation (certified by the Secretary of State of the applicable state of\nincorporation) dated at least within ten Business Days of the Date of Closing,\nand bylaws, each as amended to date, of each of the Transaction Parties;\n\n (g) a favorable opinion of Thompson Knight Brown, Parker & Leahy, L.L.P., counsel to the Transaction Parties, substantially in the form of\nExhibit G attached hereto, and addressing such other matters incident to the\nmatters herein contemplated as you may reasonably request;\n\n (h) evidence in form and substance reasonably acceptable to you\nthat certain portions of the Senior Debt existing immediately prior to the date\nhereof under the Loan Agreement dated as of October 28, 1998 by and among the\nCompany and Comerica Bank-Texas, as agent bank (the \"Comerica Facility\") have\nbeen converted into Series H Cumulative Convertible Preferred Stock of the\nCompany (\"Series H Stock\") in form and substance reasonably satisfactory to you\nand the holder of the Senior Debt.\n\n (i) an amendment to the Registration Rights Agreement, duly\nexecuted and delivered by the Company, indicating that the shares of Common\nStock underlying the Preferred Stock and Warrants have been and are now covered\nby such agreement;\n\n (j) an amendment to the Participation Rights Agreement, duly\nexecuted and delivered by the Company and the Company's stockholders parties\nthereto, indicating that the shares of Common Stock underlying the Preferred\nStock and Warrants have been are now covered by such agreement;\n\n (k) copies of a pro forma consolidated balance sheet for the\nTransaction Parties as at the Closing Date, reflecting the restructuring\ncontemplated hereby (including issuance of the Notes hereunder and the\nconversion of the junior participation to Series H Stock), certified by an\nauthorized financial officer of the Company and good-faith management\nprojections and pro forma financial statements for the Transaction Parties for\nthe fiscal year 2001;\n\n (l) a Subordinated Guaranty Agreement, duly executed and\ndelivered by each Domestic Subsidiary of the Company;\n\n (m) such other documents, agreements or information as you may\nreasonably request.\n\n\n 7\n\n 4.2 REPRESENTATIONS AND WARRANTIES; NO DEFAULT; NO MATERIAL ADVERSE CHANGE.\nThe representations and warranties of the Company and each of the other\nTransaction Parties contained in this Restructuring Agreement and the other Note\nDocuments shall be true in all material respects on and as of the Date of\nClosing, except to the extent of changes caused by the transactions herein\ncontemplated; there shall exist on the Date of Closing no Event of Default or\nDefault; there shall exist or have occurred no condition, event or act not\notherwise disclosed to you prior to the date hereof in writing which has had a\nMaterial Adverse Effect and the Company and each of the other Transaction\nParties shall have delivered to you an Officer's Certificate, dated the Date of\nClosing, to both such effects.\n\n 4.3 PURCHASE PERMITTED BY APPLICABLE LAWS. The transfer of the Company\nClosing Deliveries to you and the release by you of the Company from the\nPreexisting Obligations on the terms and conditions herein provided shall not\nviolate any applicable law or governmental regulation (including, without\nlimitation, Section 5 of the Securities Act or Regulation U or X of the Board of\nGovernors of the Federal Reserve System) and shall not subject you to any tax,\npenalty, liability or other onerous condition under or pursuant to any\napplicable law or governmental regulation, and you shall have received such\ncertificates or other evidence as you may reasonably request to establish\ncompliance with this condition.\n\n 4.4 PROCEEDINGS. All corporate and other proceedings taken or to be taken\nin connection with the transactions contemplated hereby and all documents\nincident thereto shall be reasonably satisfactory in substance and form to you,\nand you shall have received all such counterpart originals or certified or other\ncopies of such documents as you may reasonably request.\n\n 4.5 RELATED PROCEEDINGS. All corporate and other proceedings taken or to be\ntaken in connection with the execution and delivery of, and performance under\nthe Restructuring Agreement, and all documents incident thereto, shall be\nreasonably satisfactory in substance and form to you, and you shall have\nreceived all such counterpart originals or certified or other copies of such\ndocuments as you may reasonably request.\n\n 4.6 COMPANY CLOSING DELIVERABLES. You shall have received the Closing\nPayment, the Credit Facility Payment, if accrued, the Notes, the Preferred Stock\nand the Warrants issued pursuant to this Restructuring Agreement.\n\n 4.7 PRIVATE PLACEMENT NUMBER. Private Placement numbers issued by Standard\n& Poor's CUSIP Service Bureau (in cooperation with the Securities Valuation\nOffice of the National Association of Insurance Commissioners) shall have been\nobtained for the Notes, the Preferred Stock and the Warrants.\n\n 4.8 FEES. Without limiting the provisions of Section 12.2, your special\ncounsel shall have received its reasonable fees, charges and disbursements to\nthe extent reflected in a statement of such special counsel rendered to the\nCompany at least one Business Day prior to the Closing.\n\n\n 8\n\n5. PREPAYMENTS. The Notes shall be subject to prepayment only with respect\nto the prepayments specified in Sections 3.3, 5.1 and 5.2.\n\n 5.1 OPTIONAL PREPAYMENT OF NOTES. Following redemption in full of all\noutstanding Series E Stock and Series F Stock pursuant to the terms thereof the\nCompany may, at its option, upon notice as provided in Section 5.4, prepay at\nany time all or any part of the Notes, in an aggregate principal amount of not\nless than $500,000 or integral multiples of $100,000 in excess thereof (or, if\nless, the remaining aggregate principal amount of the Notes outstanding at such\ntime), plus accrued and unpaid interest thereon to the date of such prepayment,\nprovided that if such prepayments are made from the Closing Date through\n--------\nDecember 31, 2001, such prepayment of the Notes in full (but not in part) may be\nmade for a prepayment price of 83.33% of par value plus accrued and unpaid\ninterest, and provided, further, that thereafter prepayments pursuant to this\n -------- -------\nSection 5.1 shall be made at a prepayment price of par value plus accrued and\nunpaid interest.\n\n 5.2 PARTIAL PAYMENTS PRO RATA. Upon any permitted partial prepayment of\nNotes pursuant to Section 5.1, the principal amount so prepaid shall be\nallocated to all Notes at the time outstanding (including, for the purpose of\nthis Section 5.2 only, all such Notes prepaid or otherwise retired or purchased\nor otherwise acquired by the Company or any of its Subsidiaries or Affiliates\nother than by prepayment pursuant to Section 5.1) in proportion to the\nrespective outstanding principal amounts thereof.\n\n 5.3 RETIREMENT OF NOTES. The Company shall not, and shall not permit any of\nits Subsidiaries or Affiliates to, prepay or otherwise retire in whole or in\npart prior to their stated final maturity (other than by prepayment pursuant to\nSection 5.1 or upon acceleration of such final maturity pursuant to Section\n8.1), or purchase or otherwise acquire, directly or indirectly, Notes held by\nany holder unless the Company or such Subsidiary or Affiliate shall have offered\nto prepay or otherwise retire or purchase or otherwise acquire, as the case may\nbe, the same proportion of the aggregate principal amount of Notes held by each\nother holder of Notes at the time outstanding upon the same terms and\nconditions. Any Notes so prepaid or otherwise retired or purchased or otherwise\nacquired by the Company or any of its Subsidiaries or Affiliates shall not be\ndeemed to be outstanding for any purpose under this Restructuring Agreement.\n\n 5.4 NOTICE OF PREPAYMENTS. The Company will give each holder of Notes\nwritten notice of each required or optional prepayment under Section 5.1 not\nless than 15 days prior to the date fixed for such prepayment. Each such notice\nshall specify the date fixed for such redemption, the aggregate principal amount\nof the Notes to be prepaid on such date, and the interest to be paid on the\nprepayment date with respect to such principal amount being prepaid and shall\nstate that such prepayment is to be made pursuant to Section 5.1.\n\n6. AFFIRMATIVE COVENANTS.\n\n 6.1 AFFIRMATIVE COVENANTS.\n\n\n 9\n\n So long as any Note shall remain unpaid (or, if no Note shall remain unpaid\nbut either (a) any Series E Stock shall remain outstanding or (b) any Series F\nStock, Series G Stock or Warrants shall be held by you or your affiliate: (i) if\nat the time in question the Common Stock is listed or admitted to trading on any\nnational securities exchange or is traded in the over-the-counter market and is\nsubject to bid and asked prices with respect thereto being quoted in the Nasdaq\nNational Market, then only with respect to the covenants of the Company set\nforth in Sections 6.2(i), (ii), (iii) and (x) and 6.3, or (ii) if the Common\nStock is not so listed, admitted to trading or subject to such bid and asked\nprices being so quoted, then only with respect to the covenants of the Company\nset forth in Sections 6.2, 6.3 and 6.4) the Company covenants that:\n\n 6.2 FINANCIAL STATEMENTS. The Company will deliver to each holder in\nduplicate and without cost to you:\n\n (i) as soon as practicable and in any event within 45 days after the\n end of each quarterly period (other than the last quarterly period) in each\n fiscal year, consolidated statements of income, stockholders' equity and\n cash flows of the Company and its Subsidiaries for the period from the\n beginning of the current fiscal year to the end of such quarterly period,\n and a consolidated balance sheet of the Company and its Subsidiaries as at\n the end of such quarterly period, setting forth in each case in comparative\n form figures for the corresponding period in the preceding fiscal year, all\n in reasonable detail and reasonably satisfactory in form to the Required\n Holder(s) and certified by an authorized financial officer of the Company,\n subject to changes resulting from year-end adjustment; provided, that\n --------\n delivery pursuant to clause (iii) below of copies of the Quarterly Report\n on Form l0-Q or 10-QSB, as the case may be, of the Company for such\n quarterly period filed with the Securities and Exchange Commission shall be\n deemed to satisfy the requirements of this clause (i);\n\n (ii) as soon as practicable and in any event within 90 days after the\n end of each fiscal year, consolidated statements of income and cash flows\n and a consolidated statement of stockholders' equity of the Company and its\n Subsidiaries for such year, and a consolidated balance sheet of the Company\n and its Subsidiaries as at the end of such year, setting forth in each case\n in comparative form corresponding consolidated figures from the preceding\n annual audit, all in reasonable detail and reasonably satisfactory in form\n to the Required Holder(s) and reported on by independent public accountants\n of recognized national standing selected by the Company whose report shall\n be without limitation as to the scope of the audit and reasonably\n satisfactory in substance to the Required Holder(s); provided, that\n --------\n delivery pursuant to clause (iii) below of copies of the Annual Report on\n Form 10-K or l0-KSB, as the case may be, of the Company for such fiscal\n year filed with the Securities and Exchange Commission shall be deemed to\n satisfy the requirements of this clause (ii) with respect to consolidated\n financial statements if such financial statements are included in such\n report;\n\n\n 10\n\n (iii) promptly upon transmission thereof, copies of all such financial\n statements, proxy statements, notices and reports as it shall send to its\n public stockholders and copies of all registration statements (without\n exhibits) and all reports which it files with the Securities and Exchange\n Commission (or any governmental body or agency succeeding to the functions\n of the Securities and Exchange Commission);\n\n (iv) promptly upon receipt thereof, a copy of each other report\n submitted to the Company or any Subsidiary by independent accountants in\n connection with any annual, interim or special audit made by them of the\n books of the Company or any Subsidiary;\n\n (v) as soon as practicable and in any event within five Business Days\n after obtaining Knowledge (a) of any condition or event which, in the\n opinion of management of the Company, would have a Material Adverse Effect,\n (b) that any Person has given any notice to the Company or any of its\n Subsidiaries or taken any other action with respect to a claimed default or\n event or condition of the type referred to in clause (iii) of Section 8.1,\n (c) of the institution of any litigation involving claims against the\n Company or any of its Subsidiaries equal to or greater than $100,000 with\n respect to any single cause of action or of any adverse determination in\n any court proceeding in any litigation involving a potential liability to\n the Company or any of its Subsidiaries equal to or greater than $500,000\n with respect to any single cause of action which makes the likelihood of an\n adverse determination in such litigation against the Company or such\n Subsidiary substantially more probable or (d) of any regulatory proceeding\n which may have a Material Adverse Effect, an Officer's Certificate\n specifying the nature and period of existence of any such condition or\n event, or specifying the notice given or action taken by such Person and\n the nature of any such claimed default, event or condition, or specifying\n the details of such proceeding, litigation or dispute and what action the\n Company or any of its Subsidiaries has taken, is taking or proposes to take\n with respect thereto;\n\n (vi) (a) within five Business Days after receipt, a copy of any notice\n of complete or partial withdrawal liability under Title IV of ERISA and any\n notice from the PBGC under Title IV of ERISA of an intent to terminate or\n appoint a trustee to administer any Plan, (b) if requested by any holder of\n the Notes, promptly after the filing thereof with the United States\n Secretary of Labor or the PBGC or the Internal Revenue Service, copies of\n each annual and other report with respect to each Plan or any trust created\n thereunder, (c) immediately upon becoming aware of the occurrence of any\n \"reportable event,\" as such term is defined in Section 4043 of ERISA, for\n which the disclosure requirements of Regulation Section 2615.3 promulgated\n by the PBGC have not been waived, or of any \"prohibited transaction,\" as\n such term is defined in Section 4975 of the Code, in connection with any\n Plan or any trust created thereunder, a written notice signed by an\n authorized officer of the Company or the applicable member of the\n Controlled Group specifying the nature thereof, what action the Company or\n\n\n 11\n\n the applicable member of the Controlled Group is taking or proposes to take\n with respect thereto, and, when known, any action taken by the PBGC, the\n Internal Revenue Service or the Department of Labor with respect thereto,\n (d) promptly after the filing or receiving thereof by the Company or any\n member of the Controlled Group of any notice of the institution of any\n proceedings or other actions which may result in the termination of any\n Plan, and (e) each request for waiver of the funding standards or extension\n of the amortization periods required by Sections 303 and 304 of ERISA or\n Section 412 of the Code promptly after the request is submitted by the\n Company or any member of the Controlled Group to the Secretary of the\n Treasury, the Department of Labor or the Internal Revenue Service, as the\n case may be;\n\n (vii) promptly upon delivery thereof to any bank or commercial lender\n providing a credit facility to the Company, copies of all such notices,\n reports and other materials which the Company or any Subsidiary is required\n under such credit facility to deliver to such lender;\n\n (viii) promptly upon completion thereof on an annual basis within 60\n days following each fiscal year end, a copy of each operating budget and\n projection of financial performance prepared by or for the Company or any\n of its Subsidiaries;\n\n (ix) within 10 days after the removal or resignation of, or the death\n or disability of any Executive Officer or Responsible Officer of the\n Company or any of its Subsidiaries, written notice thereof, together with\n information in reasonable detail with respect thereto; and\n\n (x) with reasonable promptness, such other information respecting the\n condition or operations, financial or otherwise, of the Company or any of\n its Subsidiaries as such holder may reasonably request.\n\n\nTogether with each delivery of financial statements required by clauses (i) and\n(ii) above, the Company will deliver to each Significant Holder an Officer's\nCertificate in the form of Exhibit H attached hereto demonstrating (with\ncomputations in reasonable detail) compliance by the Company and its\nSubsidiaries with the provisions of Sections 7.1, 7.3(a)(v), 7.3(b), 7.3(c)and\n7.3(e) and stating that there exists no Event of Default or Default, or, if any\nEvent of Default or Default exists, specifying the nature and period of\nexistence thereof and what action the Company proposes to take with respect\nthereto. Together with each delivery of financial statements required by clause\n(ii) above, the Company will deliver to each Significant Holder a certificate of\nsuch accountants stating that, in making the audit necessary for their report on\nsuch financial statements, they have obtained no knowledge of any Event of\nDefault or Default, or, if they have obtained knowledge of any Event of Default\nor Default, specifying the nature and period of existence thereof. Such\naccountants, however, shall not be liable to anyone by reason of their failure\nto obtain knowledge of any Event of Default or Default which would not be\ndisclosed in the course of an audit conducted in accordance with generally\naccepted auditing standards.\n\n\n 12\n\n The Company also covenants that immediately after obtaining Knowledge of an\nEvent of Default or Default, it will deliver to each Significant Holder an\nOfficer's Certificate specifying the nature and period of existence thereof and\nwhat action the Company proposes to take with respect thereto.\n\n 6.3 INFORMATION REQUIRED BY RULE 144A. The Company will, upon the request\nof the holder of any Security, provide such holder, and any qualified\ninstitutional buyer designated by such holder, such financial and other\ninformation as such holder may reasonably determine to be reasonably necessary\nin order to permit compliance with the information requirements of Rule 144A\nunder the Securities Act in connection with the resale of Notes or Warrants,\nexcept at such times as the Company is subject to the reporting requirements of\nSection 13 or 15(d) of the Exchange Act. For the purpose of this Section 6.3,\nthe term \"qualified institutional buyer\" shall have the meaning specified in\nRule 144A under the Securities Act.\n\n\n 6.4 INSPECTION OF PROPERTY. The Company will permit any Person designated\nby any Significant Holder in writing, at the Company's expense during the\ncontinuance of a Default or Event of Default and otherwise at such Significant\nHolder's sole cost and expense, to visit and inspect, on behalf of such holder,\nany of the properties of the Company and its Subsidiaries, to examine the\ncorporate books and financial records of the Company and its Subsidiaries and\nmake copies thereof or extracts therefrom and to discuss the affairs, finances\nand accounts of any of such corporations with the principal officers of the\nCompany and its independent public accountants, all at such reasonable times and\nas often as such holder may reasonably request; provided, that such Significant\n --------\nHolder and such other Person shall have agreed to comply with the\nconfidentiality provisions set forth in Section 12.8.\n\n 6.5 COVENANT TO SECURE NOTES EQUALLY. The Company will, if it or any\nSubsidiary shall grant or assume any Lien upon any of its property or assets,\nwhether now owned or hereafter acquired, other than Liens permitted by the\nprovisions of Section 7.3(a) (unless prior written consent to the creation or\nassumption thereof shall have been obtained pursuant to Section 12.3), make or\ncause to be made effective a provision whereby the Notes will be secured by such\nLien equally and ratably with any and all other Indebtedness thereby secured so\nlong as any such other Indebtedness shall be so secured pursuant to such\nagreements and instruments as shall be approved by the Required Holder(s), and\nthe Company will cause to be delivered to the holder of each Note an opinion of\nindependent counsel to the effect that such agreements and instruments are\nenforceable in accordance with their terms and that the Notes are equally and\nratably secured with such other Indebtedness.\n\n 6.6 TAXES, EXISTENCE, REGULATIONS, PROPERTY, ETC. The Company will at all\ntimes, except where failure or noncompliance could not reasonably be expected to\nhave a Material Adverse Effect (i) pay when due all taxes and governmental\ncharges of every kind upon it or against its income, profits or Property, unless\nand only to the extent that the same shall be contested diligently in good faith\nand adequate reserves in accordance with GAAP have been established therefor;\n(ii) do all things reasonably necessary to preserve its existence,\nqualifications, rights and franchises; (iii) comply with all applicable Legal\nRequirements (including without limitation Requirements of Environmental Law) in\n\n\n 13\n\nrespect of the conduct of its business and the ownership of its Property, and\n(iv) cause its Property to be protected, maintained and kept in good repair,\nordinary wear and tear excepted, and make all replacements and additions to such\nProperty as may be reasonably necessary to conduct its business properly and\nefficiently.\n\n 6.7 MAINTENANCE OF INSURANCE. The Company will carry and maintain, and\ncause each Subsidiary to carry and maintain, insurance (subject to customary\ndeductibles and retentions) in at least such amounts and against such\nliabilities and hazards and by such methods as customarily maintained by other\ncompanies operating similar businesses.\n\n 6.8 MAINTENANCE OF DIRECTORS' AND OFFICERS' INSURANCE. The Company will\ncarry and maintain directors' and officers' liability insurance in at least such\namounts and against such liabilities and hazards and by such methods as\ncustomarily maintained by other companies operating similar businesses which, in\nany event, shall be in at least such amounts (subject to customary deductibles\nand retentions) and against such liabilities and by such methods as are\nmaintained by the Company as of the Date of Closing.\n\n 6.9 ERISA COMPLIANCE. To the extent required under applicable statutory\nfunding requirements, the Company will fund, or will cause the applicable member\nof the Controlled Group to fund, all current service pension liabilities as they\nare incurred under the provisions of all Plans from time to time in effect, and\ncomply with all applicable provisions of ERISA, in each case, except to the\nextent that failure to do the same could not reasonably be expected to have a\nMaterial Adverse Effect. The Company covenants that it shall and shall cause\neach member of the Controlled Group to (i) make contributions to each Plan in a\ntimely manner and in an amount sufficient to comply with the contribution\nobligations under such Plan and the minimum funding standards requirements of\nERISA; (ii) prepare and file in a timely manner all notices and reports required\nunder the terms of ERISA including but not limited to annual reports; and (iii)\npay in a timely manner all required PBGC premiums, in each case, except to the\nextent that failure to do the same could not reasonably be expected to have a\nMaterial Adverse Effect.\n\n 6.10 SUBSIDIARIES.\n\n (i) At the cost and expense of the Company, the Company will cause\n each subsequently acquired or organized Domestic Subsidiary to execute and\n deliver a Subordinated Guaranty Agreement in favor of the holders of the\n Notes contemporaneously with such Domestic Subsidiary possessing or\n acquiring any tangible or intangible assets or properties.\n\n (ii) If and at any time a Subsidiary shall Guarantee or agree to\n Guarantee any term or revolving credit facility or other instrument\n evidencing indebtedness of the Company, then at the cost and expense of the\n Company, the Company will cause each such Subsidiary, to the extent it has\n not already done so, to execute and deliver a Subordinated Guaranty\n Agreement, in favor of the holder of the Notes.\n\n\n 14\n\n 6.11 MAINTENANCE OF BOOKS OF RECORD; RESERVES. The Company, both\n individually and on a consolidated basis, will keep proper books of record\n and account and set aside appropriate reserves, all in accordance with\n GAAP.\n\n\n7. NEGATIVE COVENANTS. So long as any Note shall remain unpaid the Company\ncovenants that:\n\n 7.1 FINANCIAL COVENANTS. The Company will not permit:\n\n (a) TOTAL DEBT TO EBITDA RATIO. The ratio of Total Debt to EBITDA\nfor each of the rolling twelve month periods most recently ended, commencing\nwith the twelve month period ended on the earlier of (i) the last day of the\nmonth containing the closing date of the Permitted Acquisition and (ii) December\n31, 2001, to be greater than the 3.25 to 1.\n\n (b) EBITDA TO CONSOLIDATED INTEREST EXPENSE. The ratio of\nEBITDA to Consolidated Interest Expense, for each of the rolling twelve month\nperiods most recently ended, commencing with the twelve month period ended on\nthe earlier of (i) the last day of the month containing the closing date of the\nPermitted Acquisition and (ii) December 31, 2001, to be less than 2.9 to 1.\n\n (c) YEAR-TO-DATE EBITDA LEVELS. Permit EBITDA from January\n1, 2001 to the last day of each period set forth below, to be less than the\nminimum amount set forth opposite such period below:\n\n\n Period Minimum Amount\n ------ --------------\n\n March 31, 2001 $ 350,000\n\n June 30, 2001 $1,200,000\n\n September 30, 2001 $2,500,000\n\n\n 7.2 LIMITATION ON RESTRICTED PAYMENTS. The Company will not and will\nnot permit any Subsidiary to directly or indirectly declare, order, pay, make or\nset apart any sum for any Restricted Payment.\n\n 7.3 LIENS, INDEBTEDNESS, AND OTHER RESTRICTIONS. The Company will not and\nwill not permit any Subsidiary to:\n\n\n (a) LIENS. Create, assume or suffer to exist any Lien upon any of its\nproperties or assets, whether now owned or hereafter acquired (whether or not\nprovision is made for the equal and ratable securing of the Notes in accordance\nwith the provisions of Section 6.5), except:\n ------\n\n\n 15\n\n (i) Liens on property of the Company and its Subsidiaries outstanding\n on the Date of Closing described in the letter dated as of December 28,\n 2000 from the Company to you (the \"Prudential Letter\"), including, without\n limitation, those securing the Senior Debt;\n\n (ii) Liens to secure debt financing permitted by Section 7.3(b)(ii).\n\n (iii) statutory Liens incidental to the conduct of business or the\n ownership of properties of the Company and its Subsidiaries (including\n Liens in connection with worker's compensation, unemployment insurance and\n other like laws (other than ERISA Liens), warehousemen's and mechanic's\n liens and statutory landlord's liens) and Liens to secure the performance\n of bids, tenders or purchase, construction or sales contracts, or to secure\n statutory obligations, property taxes and assessments or governmental\n charges, surety or appeal bonds or other Liens of like general nature which\n in each case are incurred in the ordinary course of business and not in\n connection with the borrowing of money, the obtaining of advances or credit\n or the payment of the deferred purchase price of property and which do not\n in any event materially impair the value or use of the property encumbered\n thereby in the operation of the business of the Company and its\n Subsidiaries; provided in each case, that the obligation secured is not\n --------\n overdue;\n\n (iv) any Lien created to secure all or any part of the purchase price,\n or to secure Indebtedness incurred or assumed to pay all or any part of the\n purchase price, of property acquired by the Company or its Subsidiaries\n after the Date of Closing, provided, that all of such Liens may not secure\n --------\n in excess of an aggregate of $8,000,000 of Indebtedness, and provided,\n ---------\n further, that all such Indebtedness is supported by a contract with a\n -------\n credit-worthy sovereign, nationally-owned or major independent integrated\n oil and gas company that provides for payment in full of such Indebtedness\n as principal and interest thereon is scheduled to be paid, and which the\n Company demonstrates to you will allow it to maintain compliance with the\n ratio tests of Section 7.1 hereof, and, provided, further, that all such\n -----------------\n Liens shall be confined solely to the item or items of property so\n acquired; and\n\n (v) any Lien incurred in connection with a Permitted Acquisition that\n is limited to the assets or business unit acquired (and the product,\n proceeds and accretions thereto, including, without limitation, the cash\n and accounts receivable generated by any such business unit and any assets\n acquired by such business unit) securing any Indebtedness permitted by\n Section 7.3(b)(vii).\n\n (b) LIMITATION ON INDEBTEDNESS. Create, incur, assume or permit to\nexist any Indebtedness other than:\n\n\n 16\n\n (i) Indebtedness incurred pursuant to this Restructuring Agreement, as\n evidenced by the Notes, and the subordinated guaranty obligations of the\n Company's Subsidiaries with respect thereto;\n\n (ii) Senior Debt owing pursuant to the New Senior Credit Facility,\n provided that as a condition to the Company's execution and delivery of the\n --------\n New Senior Credit Facility, $1,000,000 principal amount outstanding under\n the Existing Credit Facility shall be converted to Series H Stock, and\n provided, further, that that the principal amount of Indebtedness owing\n ------------------\n pursuant thereto shall not be in excess of $6,000,000, (which Senior Debt\n may be incurred whether or not the Company is in compliance with the tests\n pursuant to Section 7.1 up to and through September 30, 2001), and the\n senior guaranty obligations of the Company's Subsidiaries with respect\n thereto;\n\n (iii) trade payables and current Indebtedness (other than for borrowed\n money) incurred in, and deposits and advances accepted in, the ordinary\n course of business;\n\n (iv) Indebtedness of the Company and its Subsidiaries outstanding on\n the Date of Closing and described in the Prudential Letter, including,\n without limitation, the Senior Debt owing pursuant to the Existing Senior\n Credit Facility, but not including any refinancings of such Indebtedness,\n other than a refinancing of the Senior Debt;\n\n (v) Indebtedness secured by the Liens permitted pursuant to clause\n (iv) of Section 7.3(a);\n\n (vi) Indebtedness of up to $15,000,000 (or such greater amount as is\n acceptable to you based on a case-by-case review by you of contract\n opportunities that may exceed such maximum) incurred in connection with\n interim project financing, supported by a contract with a credit-worthy\n sovereign, nationally-owned or major independent integrated oil and gas\n company, with such Indebtedness to be retired within the term of such\n contract at or prior to project conclusion with the collection of\n associated receivables, for specific purpose large-scale well control\n events provided, that if such Indebtedness is recourse to the Company,\n --------\n it may be incurred if the Company demonstrates to you it will maintain\n compliance with the ratio tests of Section 7.1 hereof; and\n\n (vii) Indebtedness in connection with the Permitted Acquisition so\n long as after giving effect thereto no Default or Event of Default shall\n occur and be continuing and on a pro forma basis the Company is (and is\n projected to be) in compliance with Section 7.1(a) hereof.\n\n\n (c) LOANS AND INVESTMENTS. Make any loan, advance, extension of\ncredit or capital contribution to, or make or have any Investment in, any\nPerson, or make any commitment to make any such extension of credit or\nInvestment, except (i) Permitted Investments; (ii) normal and reasonable\nadvances in the ordinary course of business to officers and employees provided\n\n\n 17\n\nthat the proceeds of such advances are not used to purchase securities of the\nCompany; (iii) accounts receivable and accounts payable arising in the ordinary\ncourse of business; (iv) deposits in money market funds investing exclusively in\nPermitted Investments; (v) Investments disclosed in the financial statements\ndelivered pursuant to Section 6.2; (vi) routine advances by any Transaction\nParty to another Transaction Party (or any Subsidiary of a Transaction Party) in\nthe ordinary course of business other than Investments, not to exceed $500,000\nin the aggregate at any time; and (vii) other Investments not to exceed $500,000\nin the aggregate at any time.\n\n (d) MERGERS, CONSOLIDATIONS AND ACQUISITIONS, ETC. In any\nsingle transaction or series of transactions, directly or indirectly: (i)\nliquidate or dissolve provided that any Subsidiary of the Company may liquidate,\ndissolve or take action to wind-up its operations if (1) the Company determines\nsuch action to be in the best interests of the Company and its Subsidiaries, (2)\nliquidating dividends are paid to the Company, and (3) the Company gives the\nholder of each Note written notice of such action at least thirty (30) days\nprior to taking such action; (ii) be a party to any merger or consolidation\nunless and so long as (1) no Default or Event of Default has occurred and is\nthen continuing, (2) immediately thereafter and giving effect thereto, no event\nwill occur and be continuing which constitutes a Default or an Event of Default,\n(3) a Transaction Party is the surviving Person (provided, that the Company must\nbe the surviving Person in a merger or consolidation that involves the Company);\n(4) the surviving Person ratifies and assumes each Subordinated Note Document to\nwhich any party to such merger was a party, and (5) the holder of each Note is\ngiven at least 30 days' prior notice of such merger or consolidation; or (iii)\nacquire any real Property or any material personal Property after the Date of\nClosing with respect to which the aggregate consideration in the form of cash\nand assumed Indebtedness would exceed $3,000,000; provided the Company may make\nPermitted Acquisitions so long as after giving effect thereto no Default or\nEvent of Default shall occur and be continuing and on a pro forma basis the\nCompany is (and is projected to be) in compliance with Section 7.1(a) hereof.\n\n (e) LIMITATION ON ASSET DISPOSITIONS. Except for Permitted\nDispositions, the Company shall not (i) make or permit to be made any Asset\nDisposition or series of Asset Dispositions provided, that a sale of equipment\nby the Company or any of its Subsidiaries shall not be an Asset Disposition if\n(x) at the time of such sale the Company or such Subsidiary intends in good\nfaith to replace the equipment so sold with similar equipment of the same or\ngreater Fair Market Value, (y) within 60 days of such sale the Company or such\nSubsidiary actually replaces the equipment so sold with similar equipment of the\nsame or greater Fair Market Value and (z) such sale comports with the past\nbusiness practices of the Company or such Subsidiary, or (ii) transfer or\notherwise dispose of any equity interest in any of the Company's Subsidiaries or\nany Indebtedness of any of the Company's Subsidiaries or issue or permit any\nSubsidiary of the Company to issue any additional equity interest other than\nequity issued to the Company as a wholly owned subsidiary.\n\n (f) SALE OR DISCOUNT OF RECEIVABLES. Sell with recourse, discount\n(other than to the extent of finance and interest charges included therein) or\n\n\n 18\n\notherwise sell for less than face value thereof, any of its notes or accounts\nreceivable, except notes or accounts receivable the collection of which is\ndoubtful in accordance with GAAP.\n\n (g) TRANSACTIONS WITH AFFILIATES. Directly or indirectly,\npurchase, acquire or lease any property from, or sell, transfer or lease any\nproperty to, or otherwise deal with, in the ordinary course of business or\notherwise (i) any Affiliate, (ii) any Person owning, beneficially or of record,\ndirectly or indirectly, either individually or together with all other Persons\nto whom such Person is related by blood, adoption or marriage, stock of the\nCompany (of any class having ordinary voting power for the election of\ndirectors) aggregating 5% or more of such voting power or (iii) any Person\nrelated by blood, adoption or marriage to any Person described or coming within\nthe provisions of clause (i) or (ii) of this Section 7.3(g), except in the\nordinary course and pursuant to the reasonable requirements of the Company's or\nsuch Subsidiary's business and upon fair and reasonable terms no less favorable\nto the Company or such Subsidiary than would be obtainable in a comparable\narm's-length transaction with a Person not an Affiliate.\n\n (h) MANAGEMENT COMPENSATION RESTRICTION. Pay or incur any\nliability for Executive Compensation in excess of what is then customary of\ncompanies of similar type, size and profitability engaged in the same or similar\nbusiness as the Company.\n\n 7.4 NATURE OF BUSINESS. Except for Permitted Acquisitions and Permitted\nDispositions, the Company will not and will not permit any Subsidiary to change\nthe nature of its business or enter into any business which is substantially\ndissimilar from the businesses in which it is presently engaged or presently\nproposes to engage as described in public filings of the Company as of the date\nhereof.\n\n 7.5 OTHER AGREEMENTS. The Company will not and will not permit any of its\nSubsidiaries to enter into or permit to exist any agreement (i) which would\ncause a Default or Event of Default hereunder or (ii) which contains any\nprovision which would be violated or breached by the performance of the\nobligations of the Company and its Subsidiaries hereunder or under any of the\nother Note Documents.\n\n 7.6 LIMITATION ON CERTAIN RESTRICTIVE AGREEMENTS. Except in connection with\nIndebtedness permitted under Sections 7.3(b)(ii), (iv), (v) and (vi), the\nCompany will not, and will not permit any of its Subsidiaries to, enter into or\nsuffer to exist any contractual obligation, other than the Note Documents, which\nin any way restricts the ability of the Company or any of its Subsidiaries to\n(i) create, incur, assume or suffer to exist any Lien upon any of its property,\nassets or revenues, (ii) make any prepayments or purchases of the Notes required\nunder this Restructuring Agreement, (iii) make any dividends or distributions,\nor any payments required under this Restructuring Agreement or any other Note\nDocument or (iv) transfer any of its property or assets (whether as a dividend\nor otherwise) to the Company or a Wholly Owned Subsidiary of the Company.\n\n 7.7 PROHIBITION AGAINST LAYERING. The Company will not and will not permit\nany Subsidiary to incur, create, issue, assume, guarantee or in any other manner\nbecome directly or indirectly liable with respect to or responsible for, or\n\n\n 19\n\npermit to remain outstanding, any Indebtedness that is contractually subordinate\nor junior in right of payment to any Senior Debt or any Guarantee in respect\nthereof and senior to the Notes or any Guaranty Agreement.\n\n 7.8 LIMITATION ON SUBSIDIARIES ACTIVITIES. (i) The Company will not permit\nany Subsidiary to issue any Voting Stock of such Subsidiary or other equity\ninterest in such Subsidiary except to the Company or a Wholly Owned Subsidiary,\n(ii) the Company will not and will not permit any Subsidiary to sell or transfer\nany Indebtedness or Voting Stock of another Subsidiary or other equity interests\nin such other Subsidiary except to the Company or a Wholly Owned Subsidiary and\n(iii) the Company will not and will not permit any Subsidiary to form, create or\nacquire any Subsidiary, except that the Company may (subject to the other\nprovisions of this Restructuring Agreement) form, create or acquire a Wholly\nOwned Subsidiary so long as (a) immediately thereafter and giving effect\nthereto, no event will occur and be continuing which constitutes a Default; (b)\nsuch Subsidiary (and, where applicable, the Company) shall execute and deliver a\nGuaranty Agreement and (c) the holder of each Note is given reasonable prior\nnotice of such formation, creation or acquisition, unless such Subsidiary has no\ntangible or intangible assets or properties, in which case the holder of each\nNote shall be given reasonable prior notice of the date upon which such\nSubsidiary is expected to first possess or acquire any tangible or intangible\nassets or properties.\n\n\n8. EVENTS OF DEFAULT.\n\n 8.1 ACCELERATION. If any of the following events shall occur and be\ncontinuing for any reason whatsoever (and whether such occurrence shall be\nvoluntary or involuntary or come about or be effected by operation of law or\notherwise):\n\n (i) the Company defaults in the payment of any principal of any Note,\n when the same shall become due, either by the terms thereof or otherwise as\n herein provided; or\n\n (ii) the Company defaults in the payment of any interest on any Note\n and such default is continuing for more than five Business Days after the\n date due; or\n\n (iii) the Company or any Subsidiary (a) defaults (whether as primary\n obligor or as guarantor or other surety) in any payment of principal of or\n interest on any other obligation for money borrowed (or any Capitalized\n Lease Obligation, any obligation under a conditional sale or other title\n retention agreement, any obligation issued or assumed as full or partial\n payment for property whether or not secured by a purchase money mortgage or\n any obligation under notes payable or drafts accepted representing\n extensions of credit) in an aggregate amount in excess of $1,000,000 beyond\n any period of grace provided with respect thereto or (b) fails to perform\n or observe any other agreement, term or condition contained in any\n agreement under which any such obligation is created (or if any other event\n thereunder or under any such agreement shall occur and be continuing) and\n the effect of such failure or other event is to cause or permit the holder\n of obligation to cause such obligation to become due (or to be repurchased\n by the Company or any Subsidiary) prior to any stated maturity; or\n\n\n 20\n\n (iv) any representation or warranty made by the Company or any of its\n Subsidiaries herein or in any of the other Note Documents, or by the\n Company or any of its officers in any writing furnished in connection with\n or pursuant to this Restructuring Agreement shall be false in any material\n respect on the date as of which made; or\n\n (v) the Company fails to perform or observe any term, covenant or\n agreement contained in Section 7 (other than Section 7.1 which is addressed\n in Section 8.1(xviii) below); or\n\n (vi) the Company or any Subsidiary fails to perform or observe any\n other agreement, covenant, term or condition contained herein, or in any of\n the other Note Documents and such failure continues unremedied for a period\n of 30 days after (a) written notice thereof is given by the holder of any\n Note to the Company or (b) the Company otherwise obtains Knowledge of such\n default, whichever is earlier; or\n\n (vii) the Company or any Subsidiary makes an assignment for the\n benefit of creditors or is generally not paying its debts as such debts\n become due; or\n\n (viii) any decree or order for relief in respect of the Company or any\n Subsidiary is entered under any bankruptcy, reorganization, compromise,\n arrangement, insolvency, readjustment of debt, dissolution or liquidation\n or similar law, whether now or hereafter in effect (the \"BANKRUPTCY LAW\"),\n of any jurisdiction; or\n\n (ix) the Company or any Subsidiary petitions or applies to any\n Tribunal for, or consents to, the appointment of, or taking possession by,\n a trustee, receiver, custodian, liquidator or similar official of the\n Company or any Subsidiary, or of any substantial part of the assets of the\n Company or any Subsidiary, or commences a voluntary case under the\n Bankruptcy Law of the United States or any proceedings (other than\n proceedings for the voluntary liquidation and dissolution of a Subsidiary)\n relating to the Company or any Subsidiary under the Bankruptcy Law of any\n other jurisdiction; or\n\n (x) any such petition or application is filed, or any such proceedings\n are commenced, against the Company or any Subsidiary and the Company or\n such Subsidiary by any act indicates its approval thereof, consent thereto\n or acquiescence therein, or an order, judgment or decree is entered\n appointing any such trustee, receiver, custodian, liquidator or similar\n official, or approving the petition in any such proceedings, and such\n order, judgment or decree remains unstayed and in effect for more than 60\n days; or\n\n\n 21\n\n (xi) any order, judgment or decree is entered in any proceedings\n against the Company decreeing the dissolution of the Company and such\n order, judgment or decree remains unstayed and in effect for more than 30\n days; or\n\n (xii) any order, judgment or decree is entered in any proceedings\n against the Company or any Subsidiary decreeing a split-up of the Company\n or such Subsidiary which requires the divestiture of assets representing\n 10% or more of the consolidated net worth of the Company and the\n Subsidiaries on a consolidated basis, or the divestiture of assets or stock\n of a Significant Subsidiary, and such order, judgment or decree remains\n unstayed and in effect for more than 30 days; or\n\n (xiii) any judgment or order, or series of judgments or orders, in an\n amount in excess of $500,000 (excluding any such judgment or order\n described in the Prudential Letter, is rendered against the Company or any\n Subsidiary and either (i) enforcement proceedings have been commenced by\n any creditor upon such judgment or order or (ii) within 60 days after entry\n thereof, such judgment is not discharged or execution thereof stayed\n pending appeal, or within 60 days after the expiration of any such stay,\n such judgment is not discharged; or\n\n (xiv) any Termination Event with respect to a Plan shall have occurred\n and, within 30 days after the occurrence thereof, (a) such Termination\n Event (if correctable) shall not have been corrected and (b) the then\n present value of such Plan's vested benefits exceeds the then current value\n of assets accumulated in such Plan by more than the amount of $1,000,000\n (or in the case of a Termination Event involving the withdrawal of a\n \"substantial employer\" (as defined in Section 4001(a)(2) of ERISA), the\n withdrawing employer's proportionate share of such excess shall exceed such\n amount); or\n\n (xv) the Company or any of its ERISA Affiliates as employer under a\n Multiemployer Plan shall have made a complete or partial withdrawal from\n such Multiemployer Plan and the plan sponsor of such Multiemployer Plan\n shall have notified such withdrawing employer that such employer has\n incurred a withdrawal liability in an aggregate amount exceeding\n $1,000,000; or\n\n (xvi) the Subordinated Guaranty Agreement shall for any reason cease\n to be valid and binding on the applicable guarantor or any party to the\n Guaranty Agreement states to any holder of a Note or asserts in writing\n that the Guaranty Agreement is not valid and binding on such guarantor; or\n\n (xvii) a Change in Control shall occur; or\n\n (xviii) the Company fails to perform or observe any covenant contained\n in Section 7.1 and such default is not waived or \"deemed cured\" within a\n reasonable period of time which shall, for purposes of this Agreement, be\n 30 days (for purposes of this Section 8.1(xviii) only, a default under\n Sections 7.1(a) and 7.1(b) will be \"deemed cured\" if the Company raises\n funds(other than by incurring Indebtedness) and applies 50% of the proceeds\n thereof to prepay Senior Debt and 50% of the proceeds thereof to repurchase\n\n\n 22\n\n Series E Stock and if, for purposes of compliance with the covenants of\n Section 7.1(a) and 7.1(b), Total Debt were reduced by the amounts used in\n such prepayment of Senior Debt and repurchase of Series E Stock, the\n Company would have been in compliance on date of such default).\n\n\nthen (a) if such event is an Event of Default specified in clause (i) or (ii) of\nthis Section 8.1, the holder of any Note (other than the Company or any of its\nSubsidiaries or Affiliates) may at its option, by notice in writing to the\nCompany, declare such Note to be, and such Note shall thereupon be and become,\nimmediately due and payable at par together with interest accrued thereon,\nwithout presentment, demand, protest or other notice of any kind, all of which\nare hereby waived by the Company, (b) if such event is an Event of Default\nspecified in clause (viii), (ix) or (x) of this Section 8.1, all of the Notes at\nthe time outstanding shall automatically become immediately due and payable\ntogether with interest accrued thereon, with respect to each Note, without\npresentment, demand, protest or notice of any kind, all of which are hereby\nwaived by the Company, and (c) if such event is not an Event of Default\nspecified in clause (viii), (ix) or (x) of this Section 8.1, the Required\nHolder(s) may at its or their option, by notice in writing to the Company,\ndeclare all of the Notes to be, and all of the Notes shall thereupon be and\nbecome, immediately due and payable together with interest accrued thereon, with\nrespect to each Note, without presentment, demand, protest or other notice of\nany kind, all of which are hereby waived by the Company.\n\n 8.2 RESCISSION OF ACCELERATION. At any time after any or all of the\nNotes shall have been declared immediately due and payable pursuant to Section\n8.1, the Required Holder(s) may, by notice in writing to the Company, rescind\nand annul such declaration and its consequences if (i) the Company shall have\npaid all overdue interest on the Notes, the principal of the Notes which has\nbecome due otherwise than by reason of such declaration, and interest on such\noverdue interest and overdue principal at the rate specified in the Notes, (ii)\nthe Company shall not have paid any amounts which have become due solely by\nreason of such declaration, (iii) all Events of Default and Defaults, other than\nnon-payment of amounts which have become due solely by reason of such\ndeclaration, shall have been cured or waived pursuant to Section 12.3, and (iv)\nno judgment or decree shall have been entered for the payment of any amounts due\npursuant to the Notes or this Restructuring Agreement. No such rescission or\nannulment shall extend to or affect any subsequent Event of Default or Default\nor impair any right arising therefrom.\n\n 8.3 NOTICE OF ACCELERATION OR RESCISSION. Whenever any Note shall be\ndeclared immediately due and payable pursuant to Section 8.1 or any such\ndeclaration shall be rescinded and annulled pursuant to Section 8.2, the Company\nshall forthwith give written notice thereof to the holder of each Note at the\ntime outstanding.\n\n 8.4 OTHER REMEDIES. If any Event of Default or Default shall occur and be\ncontinuing, the holder of any Note may proceed to protect and enforce its rights\nunder this Restructuring Agreement, such Note and the other Note Documents by\nexercising such remedies as are available to such holder in respect thereof\nunder applicable law, either by suit in equity or by action at law, or both,\nwhether for specific performance of any covenant or other agreement contained in\n\n\n 23\n\nthis Restructuring Agreement or the other Note Documents or in aid of the\nexercise of any power granted in this Restructuring Agreement or the other Note\nDocuments. No remedy conferred in this Restructuring Agreement or the other Note\nDocuments upon the holder of any Note is intended to be exclusive of any other\nremedy, and each and every such remedy shall be cumulative and shall be in\naddition to every other remedy conferred herein or now or hereafter existing at\nlaw or in equity or by statute or otherwise.\n\n9. REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company represents,\ncovenants and warrants as follows:\n\n 9.1 ORGANIZATION AND QUALIFICATION. Each of the Transaction Parties is\na corporation duly organized and validly existing in good standing under the\nlaws of its state of incorporation, and is duly licensed and in good standing as\na foreign corporation in each jurisdiction in which the nature of the business\ntransacted or the property owned is such as to require licensing or\nqualification as a foreign corporation. The Company has no Subsidiaries other\nthan the Subsidiaries listed on Schedule 9.1, each of which is a Wholly Owned\n ------------\nSubsidiary of the Company. The execution, delivery and performance by the\nCompany of the Notes, the Warrants, this Restructuring Agreement, the other Note\nDocuments to which it is a party, and the execution, delivery and performance by\neach of the other Transaction Parties of the Note Documents to which it is a\nparty, are within the Company's and the other Transaction Parties' respective\ncorporate powers and have been duly authorized by all necessary corporate\naction. None of the transactions contemplated by this Restructuring Agreement,\nincluding the issuance by the Company of the Notes, the Warrants, or the\nPreferred Stock, or the exercise of such Warrants and conversion of such\nPreferred Stock, requires approval of the stockholders of the Company pursuant\nto the General Corporation Law of the State of Delaware nor the rules and\nregulations of the American Stock Exchange or any other national or\ninternational stock exchange, quotation system or over-the-counter market where\nthe Company's Common Stock is currently traded or where it potentially may be\ntraded in the foreseeable future.\n\n 9.2 FINANCIAL STATEMENTS. The Company has furnished you with the following\nfinancial statements, identified by a principal financial officer of the\nCompany: (i) consolidated balance sheets of the Company and its Subsidiaries as\nat December 31, 1999, and consolidated statements of income, stockholders'\nequity and cash flows of the Company and its Subsidiaries for the fiscal year\nended on each date and (ii) consolidated balance sheets of the Company and its\nSubsidiaries as of September 30, 2000, and consolidated statements of income,\nstockholders' equity and cash flows for the nine months ended September 30,\n2000, prepared by the Company. Such financial statements (including any related\nschedules and\/or notes) are true and correct in all material respects (subject,\nas to interim statements, to changes resulting from audits and year-end\nadjustments), have been prepared in accordance with GAAP consistently followed\nthroughout the periods involved and show all liabilities, direct and contingent,\nof the Company and its Subsidiaries required to be shown in accordance with such\nprinciples. The balance sheets fairly present the condition of the Company and\nits Subsidiaries as at the dates thereof, and the statements of income,\nstockholders' equity and cash flows fairly present the results of the operations\n\n\n 24\n\nof the Company and its Subsidiaries and their cash flows for the periods\nindicated. There has been no Material Adverse Effect since September 30, 2000.\n\n 9.3 ACTIONS PENDING. Except as described in Schedule 9.3, there is no\n -------------\naction, suit, investigation or proceeding pending or, to the Knowledge of the\nCompany, threatened against the Company or any of its Subsidiaries, or any\nproperties or rights of the Company or any of its Subsidiaries, by or before any\ncourt, arbitrator or administrative or governmental body which, if adversely\ndetermined, might result in a liability of greater than $100,000 or might\notherwise result in any Material Adverse Effect. There is no action, suit,\ninvestigation or proceeding pending or threatened against the Company or any of\nits Subsidiaries which purports to affect the validity or enforceability of this\nRestructuring Agreement, any Note, any Warrant or any of the other Note\nDocuments.\n\n 9.4 OUTSTANDING INDEBTEDNESS. Neither the Company nor any of its\nSubsidiaries has outstanding any Indebtedness except as permitted by Section\n7.3(b), all of which Indebtedness is described in Schedule 9.4 attached hereto.\n ------------\nThere exists no default under (and no waiver of default is currently in effect\nwith respect to) the provisions of any instrument evidencing such Indebtedness\nor of any agreement relating thereto, and no event or condition exists with\nrespect to any Indebtedness of the Company or any Subsidiary that would permit\n(or that with notice or the lapse of time, or both, would permit) one or more\nPersons to cause such Indebtedness to become due and payable before its stated\nmaturity or before its regularly scheduled dates of payment.\n\n 9.5 TITLE TO PROPERTIES. The Company has and each of its Subsidiaries has\ngood and marketable title to its respective real properties (other than\nproperties which it leases) and good title to all of its other respective\nproperties and assets, including the properties and assets reflected in the\nbalance sheet as of September 30, 2000, referred to in Section 9.2 (other than\nproperties and assets disposed of in the ordinary course of business) or as\notherwise described in the Company's current report to the Securities and\nExchange Commission (\"SEC\") on Form 8-K dated October 11, 2000, subject to no\nLien of any kind except Liens permitted by Section 7.3(a). All leases necessary\nin any material respect for the conduct of the respective businesses of the\nCompany and its Subsidiaries are valid and subsisting and are in full force and\neffect.\n\n 9.6 POSSESSION OF FRANCHISES, LICENSES. The Company and each of its\nSubsidiaries possesses all franchises, certificates, licenses, permits and other\nauthorizations from governmental political subdivisions or regulatory\nauthorities, free from burdensome restrictions, that are reasonably necessary in\nany material respect for the ownership, maintenance and operation of its\nrespective properties and assets, and none of the Company or any of its\nSubsidiaries is in violation of any thereof in any material respect.\n\n 9.7 TAXES. The Company has and each of its Subsidiaries has filed all\nfederal, state and other income tax returns which, to the Knowledge of the\nCompany, are required to be filed, and each has paid all taxes as shown on such\n\n\n 25\n\nreturns and on all assessments received by it to the extent that such taxes have\nbecome due, except such taxes as are being contested in good faith by\nappropriate proceedings and for which adequate reserves have been established in\naccordance with GAAP.\n\n 9.8 CONFLICTING AGREEMENTS AND OTHER MATTERS. Neither the Company nor any\nof its Subsidiaries is a party to any contract or agreement or subject to any\ncharter or other corporate restriction which could reasonably be expected to\nhave a Material Adverse Effect. Neither the execution nor delivery of this\nRestructuring Agreement, the Notes, the Warrants or the other Note Documents,\nnor the offering, issuance and sale of the Notes and the Warrants, nor\nfulfillment of nor compliance with the terms and provisions of this\nRestructuring Agreement, the Notes, the Warrants or the other Note Documents\nwill conflict with, or result in a breach of the terms, conditions or provisions\nof, or constitute a default under, or result in any violation of, or result in\nthe creation of any Lien upon any of the properties or assets of the Company or\nany of its Subsidiaries pursuant to, the charter or bylaws of the Company or any\nof its Subsidiaries, any award of any arbitrator or any agreement (including any\nagreement with stockholders), instrument, order, judgment, decree, statute, law,\nrule or regulation to which the Company or any of its Subsidiaries is subject.\nExcept as provided in the documentation of the Senior Debt, neither the Company\nnor any of its Subsidiaries is a party to, or otherwise subject to any provision\ncontained in, any instrument evidencing Indebtedness of the Company or such\nSubsidiary, any agreement relating thereto or any other contract or agreement\n(including its charter) which limits the amount of, or otherwise imposes\nrestrictions on the incurring of, Indebtedness of the Company of the type to be\nevidenced by the Notes.\n\n\n 9.9 AUTHORIZED CAPITAL STOCK. The authorized capital stock of the Company\nconsists of 125,000,000 shares of common stock, $0.0000l per share par value,\nand 5,000,000 shares of Preferred Stock, $0.00001 per share par value. As of\nNovember 30, 2000, the outstanding capital stock of the Company consists of\n31,625,166 shares of Common Stock and 141,763 shares of Existing Preferred\nStock. All of the outstanding shares of Common Stock are duly authorized,\nvalidly issued, fully paid and nonassessable. The Company does not have\noutstanding any warrants, options, convertible securities or other rights for\nthe purchase or acquisition of shares of its capital stock other than (a) the\nWarrants and (b) as described in Schedule 9.9 attached hereto. The Series E\n ------------\nStock, Series F Stock, Series G Stock, Series E PIK Shares and Series G PIK\nShares (collectively, the \"Convertible Shares\") and the shares of Common Stock\nissuable upon the exercise or conversion of such securities (the \"Conversion\nShares\"), and shares of Series F Stock issuable upon conversion of the Series E\nStock, have been duly and validly authorized, and when issued, will be validly\nissued, fully paid and nonassessable. Such Conversion Shares have been duly\nreserved for issuance upon the conversion of the Convertible Shares, and the\nSeries F Stock has been duly reserved for issuance upon the conversion of the\nSeries E Stock and Series E PIK Shares. The Company has duly reserved\n11,965,396 shares of Common Stock for issuance upon the exercise of the\nWarrants. No shareholder of the Company or any other Person is entitled to\npreemptive or similar rights with respect to the shares of Common Stock which\nare issuable upon the conversion of the Convertible Shares or the exercise of\nthe Warrants and, if and when issued upon the conversion of the Convertible\n\n\n 26\n\nShares or the exercise of the Warrants in accordance with the provisions\nthereof, such shares will be validly issued, fully paid and nonassessable\nshares.\n\n 9.10 OFFERING OF THE SECURITIES. Neither the Company nor any agent acting\non its behalf has, directly or indirectly, offered the Securities for sale to,\nor solicited any offers to buy the Securities other than the existing preferred\nstock of the Company and the Series H Stock from, or otherwise approached or\nnegotiated with respect thereto with, any Person other than institutional\ninvestors, and neither the Company nor any agent acting on its behalf has taken\nor will take any action which would subject the issuance or sale of the\nSecurities to the provisions of Section 5 of the Securities Act or to any\nsimilar provisions of any securities or Blue Sky law of any applicable\njurisdiction.\n\n 9.11 ERISA. No accumulated funding deficiency (as defined in section 302 of\nERISA and section 412 of the Code), whether or not waived, exists with respect\nto any Plan (other than a Multiemployer Plan). No liability to the PBGC has been\nor is expected by the Company or any ERISA Affiliate to be incurred with respect\nto any Plan (other than a Multiemployer Plan) by the Company, any Subsidiary or\nany ERISA Affiliate which is or would be a Material Adverse Effect. Neither the\nCompany, any Subsidiary nor any ERISA Affiliate has incurred or presently\nexpects to incur any withdrawal liability under Title IV of ERISA with respect\nto any Multiemployer Plan which is or would be a Material Adverse Effect. The\nexecution and delivery of this Restructuring Agreement and the issuance and sale\nof the Securities will be exempt from, or will not involve any transaction which\nis subject to, the prohibitions of section 406 of ERISA and will not involve any\ntransaction in connection with which a penalty could be imposed under section\n502(i) of ERISA or a tax could be imposed pursuant to section 4975 of the Code.\n\n 9.12 GOVERNMENTAL CONSENT. Neither the nature of the Company or of any\nSubsidiary, nor any of their respective businesses or properties, nor any\nrelationship between the Company or any Subsidiary and any other Person, nor any\ncircumstance in connection with the offering, issuance, sale or delivery of the\nSecurities is such as to require any authorization, consent, approval, exemption\nor other action by or notice to or filing with any court or administrative or\ngovernmental or regulatory body (other than routine filings after the Date of\nClosing with the Securities and Exchange Commission and\/or state Blue Sky\nauthorities and the possible requirement that a filing be made pursuant to the\nHart-Scott-Rodino Antitrust Improvements Act of 1976, as amended in connection\nwith an exercise of the Warrants) or the conversion of the Convertible Shares in\nconnection with the execution and delivery of this Restructuring Agreement or\nthe other Note Documents and the fulfillment of or compliance with the terms and\nprovisions of this Restructuring Agreement, the Registration Rights Agreement or\nthe Participation Rights Agreement or of the Securities.\n\n 9.13 ENVIRONMENTAL COMPLIANCE. The Company and its Subsidiaries and all of\ntheir respective properties and facilities have complied at all times and in all\nrespects with all federal, state, local and regional statutes, laws, ordinances\n\n\n 27\n\nand judicial or administrative orders, judgments, rulings and regulations\nrelating to protection of the environment except, in any such case, where\nfailure to comply would not result in a Material Adverse Effect.\n\n 9.14 FISCAL YEAR. The fiscal year of the Company and each of its\nSubsidiaries ends as of December 31 of each year.\n\n 9.15 DISCLOSURE. Neither this Restructuring Agreement, the other Note\nDocuments nor any other document, certificate or statement furnished to you by\nor on behalf of the Company in connection herewith contains any untrue statement\nof a material fact or omits to state a material fact reasonably necessary in\norder to make the statements contained herein and therein not misleading. Other\nthan as has been described in the Company's reports on Forms 10-K, 10-Q, 8-K or\nSchedule 14A as filed with the SEC, there is no fact peculiar to the Company or\nany of its Subsidiaries which constitutes a Material Adverse Effect or in the\nfuture may (so far as the Company can now foresee) constitute a Material Adverse\nEffect and which has not been set forth in this Restructuring Agreement, the\nother Note Documents or in the other documents, certificates and statements\nfurnished to you by or on behalf of the Company prior to the date hereof in\nconnection with the transactions contemplated hereby.\n\n 9.16 INVESTMENT COMPANY ACT. Neither the Company, any of its Subsidiaries\nnor any Person controlling the Company or any of its Subsidiaries is an\n\"investment company,\" or a company \"controlled\" by an \"investment company,\"\nwithin the meaning of the Investment Company Act of 1940, as amended.\n\n10. SUBORDINATION OF NOTES.\n\n 10.1 SUBORDINATION. Anything in this Agreement to the contrary\nnotwithstanding, the indebtedness evidenced by the Notes, together with interest\nand all other sums due and owing pursuant to the Note Documents, shall be\nsubordinate and junior to the extent set forth in subparagraphs (i) to (v),\ninclusive, below, to the Senior Debt.\n\n (i) In the event of any insolvency, bankruptcy, liquidation,\n reorganization or other similar proceedings, or any receivership\n proceedings in connection therewith, relative to the Company, and in the\n event of any proceedings for voluntary liquidation, dissolution or other\n winding up of the Company, whether or not involving insolvency or\n bankruptcy proceedings, then the Senior Debt shall first be paid in full\n before any payment of or on account of principal, if any, or interest is\n made by the Company upon the Notes.\n\nThe consolidation of the Company with, or the merger of the Company with or\ninto, another corporation or entity or the liquidation or dissolution of the\nCompany following the conveyance or transfer of its property as an entirety, or\nsubstantially as an entirety, to another corporation or entity upon the terms\nand conditions provided in Section 7.3(d) shall not be deemed a dissolution,\nwinding-up, liquidation or reorganization for the purposes of this paragraph if\nsuch other corporation shall, as a part of such consolidation, merger,\nconveyance or transfer, comply with the conditions stated in Section 7.3(d).\n\n\n 28\n\n (ii) In any of the proceedings referred to in subparagraph (i) above,\n any payment or distribution of any kind or character, whether in cash,\n property, stock or obligations, which may be payable or deliverable by the\n Company in respect of the Notes shall be paid or delivered directly to the\n holders of Senior Debt (or to a banking institution selected by the court\n or Person making the payment or delivery or designated by any holder of\n Senior Debt) for application in payment thereof in accordance with the\n priorities then existing among such holders, unless and until all Senior\n Debt shall have been paid in full; provided, however, that\n -------- -------\n\n (a) if the payment or delivery by the Company of such cash,\n property, stock or obligations to the holders of the Notes is\n authorized by an order or decree giving effect, and stating in such\n order or decree that effect is given, to the subordination of the\n Notes to Senior Debt, and made in a reorganization proceeding under\n any applicable bankruptcy or reorganization law, no payment or\n delivery by the Company of such cash, property, stock or obligations\n payable or deliverable with respect to the Notes shall be made to the\n holders of Senior Debt; and\n\n (b) no such delivery shall be made to holders of Senior Debt of\n stock or obligations which are issued pursuant to reorganization\n proceedings if such stock or obligations are subordinate and junior\n (whether by law or agreement) at least to the extent provided in this\n Section 10 to the payment of all Senior Debt then outstanding and to\n the payment of any stock or obligations which are issued in exchange\n or substitution for any Senior Debt then outstanding.\n\n (iii) If the Company shall default in the payment of any principal of\n or interest on any Senior Debt in an amount in excess of $250,000 owing\n under any single instrument when the same becomes due and payable, whether\n at maturity or at a date fixed for prepayment or by declaration of\n acceleration or otherwise, then, unless and until the date on which such\n default shall have been remedied by payment in full or waived in writing,\n no holder of the Notes shall accept or receive any direct or indirect\n payment of or on account of any indebtedness in respect of the Notes.\n\n\n (iv) Upon the occurrence and during the continuance of any Default\n Subordination Event (other than under circumstances when the terms of\n subparagraph (i) above are applicable), no holder of the Notes shall accept\n or receive any direct or indirect payment by set-off or otherwise of or on\n account of any indebtedness in respect of the Notes during the Stand-Still\n Period, provided that (a) there shall be no more than two Stand-Still\n --------\n Periods during the term of the Notes and only one in any period of 365\n consecutive days and (b) in the case of any payment on or in respect of any\n Notes which would (in the absence of any such Default Subordination Event)\n have been due and payable on any date during such Stand-Still Period, the\n provisions of this subparagraph (iv) shall not prevent such payment on or\n after the date immediately following the termination of such Stand-Still\n Period.\n\n\n 29\n\n (v) If any payment or distribution of any character, whether in cash,\n securities or other property, shall be received by any holder of Notes in\n contravention of any of the terms of this Section 10 and before all the\n Senior Debt shall have been paid in full, such payment or distribution\n shall be received in trust for the benefit of the holders of the Senior\n Debt at the time outstanding and shall forthwith be paid over or delivered\n and transferred to the holders of Senior Debt.\n\n\n 10.2 OBLIGATION OF THE COMPANY UNCONDITIONAL. The provisions of this\nSection 10 are for the purpose of defining the relative rights of the holders of\nSenior Debt on the one hand, and the holders of the Notes on the other hand,\nagainst the Company and its property, and nothing herein shall impair, as\nbetween the Company and the holders of the Notes, the obligation of the Company,\nwhich is unconditional and absolute, to pay to the holders thereof the principal\nthereof and interest thereon in accordance with their terms and the provisions\nhereof, nor shall anything herein prevent the holders of the Notes from\nexercising all remedies otherwise permitted by applicable law or hereunder upon\ndefault hereunder or under the Notes (including, without limitation, the right\nto demand payment and sue for performance hereof and of the Notes and to\naccelerate the maturity thereof as provided in Section 8.1), subject to the\nrights, if any, under this Section 10 of holders of Senior Debt to receive cash,\nproperty, stock or obligations otherwise payable or deliverable by the Company\nto the holders of the Notes.\n\n 10.3 SUBROGATION. Upon full and final payment of the Senior Debt, the\nholders of the Notes shall be subrogated to the rights of the holders of the\nSenior Debt to receive payments or distributions of assets of the Company made\non Senior Debt until the principal of and interest on the Notes shall be paid in\nfull, and, for the purposes of such subrogation, no payments to the holders of\nSenior Debt of any cash, property, stock or obligations to which the holders of\nthe Notes would be entitled shall, as between the Company, its creditors (other\nthan the holders of the Senior Debt) and the holders of the Notes, be deemed to\nbe a payment by the Company to or on account of Senior Debt.\n\n 10.4 SUBORDINATION DEFINITIONS.\n\n \"DEFAULT SUBORDINATION EVENT\" shall mean the existence of all of the\nfollowing: (i) a Subordination Event of Default shall have occurred and be\ncontinuing in respect of any Senior Debt, (ii) the holders of the Notes shall\nhave received a notice from or on behalf of any holder of such Senior Debt\nidentifying each Subordination Event of Default which has occurred and is\ncontinuing and that such notice constitutes a \"DEFAULT SUBORDINATION NOTICE\" and\n(iii) no other Default Subordination Notice shall have been delivered by any\nholder of Senior Debt within the 365 day period immediately preceding the giving\nof such notice; provided that no fact or circumstances of a Subordinated Event\n --------\nof Default existing on the date of such Default Subordinated Notice may be used\nas a basis for any subsequent Default Subordination Notice. The \"STAND-STILL\nPERIOD\" relating to any Default Subordination Event shall be deemed to continue\nuntil the earlier of (x) the Subordination Event of Default under the Senior\n\n\n 30\n\nDebt giving rise thereto shall have been cured or waived, (y) a period of 90\ndays shall have elapsed from the giving of the Default Subordination Notice\nrelating thereto and (z) the maturity of such Senior Debt shall have been\naccelerated.\n\n \"SUBORDINATION EVENT OF DEFAULT\" shall mean (i) any default in the payment\nof any principal or interest on any Senior Debt in an amount in excess of\n$250,000 or less owing under any single instrument when the same becomes due and\npayable, or (ii) any event of default under any agreement evidencing Senior Debt\narising as a result of a breach of covenants which would entitle the holders of\nsuch Senior Debt to accelerate the obligations under such Senior Debt.\n\n\n11. DEFINITIONS. For the purpose of this Restructuring Agreement, the terms\ndefined in the introductory sentence and elsewhere in this Restructuring\nAgreement shall have the respective meanings specified therein, and the\nfollowing terms shall have the meanings specified with respect thereto below\n(such meanings to be equally applicable to both the singular and plural forms of\nthe terms defined):\n\n 11.1 TERMS.\n\n \"AFFILIATE\" shall mean any Person directly or indirectly controlling,\ncontrolled by, or under direct or indirect common control with, the Company,\nexcept a Subsidiary. A Person shall be deemed to control another Person if such\nPerson possesses, directly or indirectly, the power to direct or cause the\ndirection of the management and policies of such other Person, whether through\nthe ownership of voting securities, by contract or otherwise.\n\n \"AGREEMENT\" means this Subordinated Note Restructuring Agreement, as it may\nfrom time to time be amended, modified, restated or supplemented.\n\n\n \"ASSET DISPOSITION\" shall mean, with respect to the Company or any\nSubsidiary, any transaction or series of related transactions in which such\nPerson sells, conveys, transfers or leases (as lessor) or parts with control of\n(collectively, for purposes of this definition, a \"transfer\"), directly or\n --------\nindirectly, any of its property or assets, including, without limitation, any\nIndebtedness of any Subsidiary or capital stock of or other equity interests in\nany Subsidiary (including the issuance of such stock or other equity interests\nby such Subsidiary), other than transfers of cash or cash equivalents; provided,\n --------\nthat a sale of equipment by the Company or any of its Subsidiaries shall not be\nan Asset Disposition if (i) at the time of such sale the Company or such\nSubsidiary intends in good faith to replace the equipment so sold with similar\nequipment of the same or greater Fair Market Value, (ii) within 60 days of such\nsale the Company or such Subsidiary actually replaces the equipment so sold with\nsimilar equipment of the same or greater Fair Market Value, and (iii) such sale\ncomports with the past business practices of the Company or such Subsidiary.\n\n \"BANKRUPTCY LAW\" shall have the meaning specified in clause (viii) of\nSection 8.1.\n\n \"BOARD\" shall mean the Board of Directors of the Company.\n\n\n 31\n\n \"BUSINESS DAY\" shall mean any day on which banks are open for business in\nNew York City (other than a Saturday, a Sunday or a legal holiday in the States\nof New York or New Jersey).\n\n \"CAPITALIZED LEASE OBLIGATION\" shall mean any rental obligation which,\nunder GAAP, would be required to be capitalized on the books of the Company or\nany Subsidiary, taken at the amount thereof accounted for as indebtedness (net\nof interest expense) in accordance with such principles.\n\n \"CHANGE IN CONTROL\" shall mean (i) the acquisition (other than an\nacquisition by the heirs, legatees, descendants, or blood relatives of a\nshareholder as a result of the death of such shareholder) by (a) any person (as\nsuch term is used in section 13(d) and section 14(d)(2) of the Exchange Act as\nin effect on the Date of the Closing) or (b) related persons constituting a\ngroup (as such term is used in Rule 13d-5 under the Exchange Act as in effect on\nthe Date of the Closing), of beneficial ownership of 25% or more of the\noutstanding shares of Voting Stock of the Company provided, that the conversion\n --------\nof the Preferred Stock or exercise of the Warrants by you or the conversion of\nthe Series H Stock or the exercise of warrants or the ownership of shares of\ncommon stock owned by Specialty Finance Fund I, LLC or its affiliates shall not\ncause a \"Change in Control\" to occur hereunder or (ii) an event or series of\nrelated events that results in the resignation or removal of (a) the Executive\nOfficers or (b) a majority of the Board of Directors of the Company.\n\n\n \"CLOSING\" or \"DATE OF CLOSING\" shall have the meaning specified in Section\n1.1.\n\n \"CODE\" shall mean the Internal Revenue Code of 1986, as amended, as now or\nhereafter in effect, together with all regulations, rulings and interpretations\nthereof or thereunder by the Internal Revenue Service.\n\n\n \"COMMON STOCK\" shall have the meaning specified in the Recitals.\n\n \"CONFIDENTIAL INFORMATION\" shall mean any material non-public information\nregarding the Company or any of its Subsidiaries that is marked by the Company\nas confidential and is provided to the holder of a Note, any Person that\npurchases a participation in a Note or any offeree of a Note or of a\nparticipation therein pursuant to this Restructuring Agreement, other than\ninformation (i) that was publicly known or otherwise known to such holder, such\nPerson or such offeree at the time of disclosure, (ii) that subsequently becomes\npublicly known through no act or omission of such holder, such Person or such\nofferee or (iii) that otherwise becomes known to such holder, such Person or\nsuch offeree other than through disclosure by the Company or any Subsidiary.\n\n \"CONSOLIDATED INTEREST EXPENSE\" shall mean, with respect to any period, the\nsum (without duplication) of the following (in each case, eliminating all\noffsetting debits and credits between the Company and its Subsidiaries and all\nother items required to be eliminated in the course of the preparation of\n\n\n 32\n\nconsolidated financial statements of the Company and its Subsidiaries in\naccordance with GAAP): (i) all interest and prepayment charges in respect of\nIndebtedness of the Company and its Subsidiaries (including imputed interest in\nrespect of Capitalized Lease Obligations and net costs of Swaps) deducted in\ndetermining consolidated net income for such period, together with all interest\ncapitalized or deferred during such period and not deducted in determining\nconsolidated net income for such period, and (ii) all debt discount and expense\namortized or required to be amortized in the determination of Consolidated Net\nIncome for such period.\n\n \"CONSOLIDATED NET INCOME\" shall mean, with respect to any period, the net\nincome (or loss) of the Company and its Subsidiaries for such period (taken as a\ncumulative whole), as determined in accordance with GAAP, after eliminating all\noffsetting debits and credits between the Company and its Subsidiaries and all\nother items required to be eliminated in the course of the preparation of\nconsolidated financial statements of the Company and its Subsidiaries, in\naccordance with GAAP.\n\n \"CONTROLLED GROUP\" shall mean all members of a controlled group of\ncorporations and all trades or businesses (whether or not incorporated) under\ncommon control which, together with the Company, are treated as a single\nemployer under Section 414 of the Code.\n\n \"CONVERTIBLE SECURITIES\" shall mean any debt instrument that is by its\nterms convertible, in whole or in part, into an equity interest in the Company\nor any of its Subsidiaries.\n\n \"DIRECTOR\" shall have the meaning set forth in Section 12.20(b) hereof.\n\n \"DOMESTIC SUBSIDIARY\" shall mean any Subsidiary that is organized under the\nlaws of the United States, one of the several states thereof or the District of\nColumbia.\n\n \"EBITDA\" shall mean, for any period, the sum of (i) Consolidated Net\nIncome, plus (ii) to the extent deducted in the determination of Consolidated\nNet Income, (a) all provisions for federal, state and other income tax, (b)\nConsolidated Interest Expense and (c) provisions for depreciation and\namortization, provided, however, that so long as the Company shall have\n ------------------\ndelivered to the holder of each Note financial information regarding a Permitted\nAcquisition which discloses the prior operating results thereof, the pro forma\neffect of such acquisition during such 12-month period shall be permitted to be\nincluded in EBITDA for the Company or a Subsidiary as if such acquisition\noccurred on the first day of such period.\n\n \"ERISA\" shall mean the Employee Retirement Income Security Act of 1974, as\namended from time to time, and all rules, regulations, rulings and\ninterpretations adopted by the Internal Revenue Service or the U.S. Department\nof Labor thereunder.\n\n \"ERISA AFFILIATE\" shall mean any corporation which is a member of the same\ncontrolled group of corporations as the Company within the meaning of section\n414(b) of the Code, or any trade or business which is under common control with\nthe Company within the meaning of section 414(c) of the Code.\n\n\n 33\n\n \"EVENT OF DEFAULT\" shall mean any of the events specified in Section 8.1,\nprovided, that there has been satisfied any requirement in connection with such\nevent for the giving of notice, or the lapse of time, or the happening of any\nfurther condition, event or act, and \"DEFAULT\" shall mean any of such events,\nwhether or not any such requirement has been satisfied.\n\n \"EXCHANGE ACT\" shall mean the Securities Exchange Act of 1934, as amended.\n\n \"EXECUTIVE COMPENSATION\" shall mean the aggregate of all salary, bonus and\nother compensation paid by the Company or its Subsidiaries in whatever form paid\nto or for the benefit of the Executive Officers.\n\n \"EXECUTIVE OFFICER\" shall mean the chairman of the board, chief executive\nofficer, president, chief operating officer, chief financial officer or chief\naccounting officer of the Company.\n\n \"EXISTING PREFERRED STOCK\" shall mean, with respect to the Company, all of\nthe shares of 10% Junior Redeemable Convertible Preferred Stock , Series A\nStock, Series B Convertible Preferred Stock, Series C Cumulative Convertible\nJunior Preferred Stock and Series D Cumulative Junior Preferred Stock, in each\ncase, that has been issued as of the Date of Closing.\n\n \"EXISTING SENIOR CREDIT FACILITY\" shall mean that certain Loan Agreement\ndated as of October 28, 1998 among the Company, as borrower, Comerica\nBank-Texas, as agent and as lender, as the same may from time to time be\nsupplemented, amended, renewed, extended, refunded or replaced.\n\n \"EXPENSES\" shall have the meaning specified in Section 12.2.\n\n \"EXPENSES CASH PAYMENT\" shall have the meaning specified in Section 12.2.\n\n \"EXPENSES NOTE AMOUNT\" shall have the meaning specified in Section 12.2.\n\n \"FAIR MARKET VALUE\" shall mean, at any time and with respect to any\nproperty, the sale value of such property that would be realized in an\narm's-length sale at such time between an informed and willing buyer and an\ninformed and willing seller (neither being under a compulsion to buy or sell).\n\n \"GAAP\" shall have the meaning specified in Section 11.2.\n\n \"GOVERNMENTAL AUTHORITY\" shall mean any foreign governmental authority, the\nUnited States of America, any State of the United States, and any political\nsubdivision of any of the foregoing, and any central bank, agency, department,\ncommission, board, bureau, court or other tribunal having jurisdiction over the\nholder of any Note, any Transaction Party or their respective Property.\n\n\n 34\n\n \"GUARANTEE\" shall mean, with respect to any Person, any direct or indirect\nliability, contingent or otherwise, of such Person with respect to any\nindebtedness, lease, dividend or other obligation of another, including, without\nlimitation, any such obligation directly or indirectly guaranteed, endorsed\n(otherwise than for collection or deposit in the ordinary course of business) or\ndiscounted or sold with recourse by such Person, or in respect of which such\nPerson is otherwise directly or indirectly liable, including, without\nlimitation, any such obligation in effect guaranteed by such Person through any\nagreement (contingent or otherwise) to purchase, repurchase or otherwise acquire\nsuch obligation or any security therefor, or to provide funds for the payment or\ndischarge of such obligation (whether in the form of loans, advances, stock\npurchases, capital contributions or otherwise), or to maintain the solvency or\nany balance sheet or other financial condition of the obligor of such\nobligation, or to make payment for any products, materials or supplies or for\nany transportation or services regardless of the non-delivery or non-furnishing\nthereof, in any such case if the purpose or intent of such agreement is to\nprovide assurance that such obligation will be paid or discharged, or that any\nagreements relating thereto will be complied with, or that the holders of such\nobligation will be protected against loss in respect thereof. The amount of any\nGuarantee shall be equal to the outstanding principal amount of the obligation\nguaranteed or such lesser amount to which the maximum exposure of the guarantor\nshall have been specifically limited.\n\n \"HAZARDOUS SUBSTANCE\" shall mean petroleum products and any hazardous or\ntoxic waste or substance defined or regulated as such from time to time by any\nlaw, rule, regulation or order described in the definition of \"Requirements of\nEnvironmental Law\".\n\n \"INDEBTEDNESS\" shall mean, with respect to any Person or consolidated group\nof Persons, without duplication, (i) all items (excluding items of contingency\nreserves or of reserves for deferred income taxes) which in accordance with GAAP\nwould be included in determining total liabilities as shown on the liability\nside of a balance sheet of such Person or consolidated group of Persons (but\n ---\nexcluding accounts payable in the ordinary course of business) as of the date on\n---------\nwhich Indebtedness is to be determined; (ii) all indebtedness secured by any\nLien on, or payable out of the proceeds of production from, any property or\nasset owned or held by such Person subject thereto, whether or not the\nindebtedness secured thereby shall have been assumed; (iii) redemption\nobligations in respect of mandatorily redeemable preferred stock; (iv) Swaps;\n(v) unfunded pension liabilities; (vi) obligations as an account party in\nrespect of letters of credit; and (vii) Guarantees of Indebtedness of other\nPersons of the types described in the foregoing clauses (i) through (vi).\n\n \"INTANGIBLES\" shall include, without limitation, (i) deferred charges; (ii)\nthe amount of any write-up in the book value of any acquired assets in excess of\nfair market value and (iii) the aggregate of all amounts appearing on the assets\nside of any such balance sheet for franchises, licenses, permits, patents,\npatent applications, copyrights, trademarks, trade names, goodwill, treasury\nstock, experimental or organizational expenses and other like intangibles.\n\n\n 35\n\n \"INVESTMENT\" shall mean the purchase or other acquisition of any securities\nor Indebtedness of, or the making of any loan, advance, transfer of Property\n(other than transfers in the ordinary course of business) or capital\ncontribution to, or the incurring of any liability (other than accounts arising\nin the ordinary course of business), contingently or otherwise, in respect of\nthe Indebtedness of, any Person.\n\n \"JUNIOR PREFERRED STOCK\" shall have the meaning set forth in the definition\n\"Restricted Payment.\"\n\n \"KNOWLEDGE\" of the Company shall mean the actual knowledge of any Executive\nOfficer.\n\n \"LEGAL REQUIREMENT\" shall mean any law, statute, ordinance, decree,\nrequirement, order, judgment, rule, or regulation (or interpretation of any of\nthe foregoing) of, and the terms of any license or permit issued by, any\nGovernmental Authority, whether presently existing or arising in the future.\n\n \"LIEN\" shall mean any mortgage, pledge, priority, security interest,\nencumbrance, contractual deposit arrangement, lien (statutory or otherwise) or\ncharge of any kind (including any agreement to give any of the foregoing, any\nconditional sale or other title retention agreement, any production payment, any\nlease in the nature thereof, and the filing of or agreement to give any\nfinancing statement under the Uniform Commercial Code of any jurisdiction) or\nany other type of preferential arrangement for the purpose, or having the\neffect, of protecting a creditor against loss or securing the payment or\nperformance of an obligation.\n\n \"MATERIAL ADVERSE EFFECT\" shall mean any material and adverse effect on the\nability of the Company or any of its Subsidiaries to perform its obligations\nunder any Note Document to which it is a party or on the business, condition\n(financial or otherwise), results of operations, assets, liabilities or\nprospects of the Company and its Subsidiaries on a consolidated basis.\n\n \"MULTIEMPLOYER PLAN\" shall mean any Plan which is a \"multiemployer plan\"\n(as such term is defined in section 400l(a)(3) of ERISA).\n\n \"NEW SENIOR CREDIT FACILITY\" shall mean any credit instrument or agreement\nat any time and from time to time entered into by the Company with any financial\ninstitution or institutions within the limitations of Section 7.3(b)(ii), as the\nsame may from time to time be supplemented, amended, renewed, extended, refunded\nor replaced.\n\n \"NOTE DOCUMENTS\" shall mean this Restructuring Agreement, the Notes, the\nWarrants, the Participation Rights Agreement, the Registration Rights Agreement,\nthe Guaranty Agreement, and all other instruments, certificates, documents and\nother writings now or hereafter executed and delivered by any Transaction Party\nor any other Person pursuant to or in connection with any of the foregoing or\nany of the transactions contemplated thereby, and any and all amendments,\nrestatements, supplements and other modifications to any of the foregoing.\n\n\n 36\n\n \"NOTES\" shall have the meaning specified in Section 2.1.\n\n \"OBLIGATIONS\" shall mean, as at any date of determination thereof, the sum\nof the following: (i) the aggregate principal amount of Notes outstanding on\nsuch date, plus (ii) all other outstanding liabilities, obligations and\n ----\nIndebtedness of any Transaction Party under this Restructuring Agreement, any\nNote, the Guaranty Agreement or any of the other Note Documents on such date.\n\n \"OBSERVER\" shall have the meaning set forth in Section 12.20.\n\n \"OFFICER'S CERTIFICATE\" shall mean a certificate signed in the name of a\nTransaction Party by its President, one of its Vice Presidents or its Treasurer.\n\n \"PARTICIPATION RIGHTS AGREEMENT\" shall mean the Participation Rights\nAgreement, dated as of July 23, 1998, substantially in the form of Exhibit I\nattached hereto, by and among you, the Company and certain holders of the\nCompany's common stock as the same may be amended, restated, supplemented or\notherwise modified from time to time.\n\n \"PBGC\" shall mean the Pension Benefit Guaranty Corporation or any entity\nsucceeding to any or all of its functions under ERISA.\n\n \"PERMITTED ACQUISITION\" shall have the meaning set forth in the Prudential\nLetter.\n\n \"PERMITTED DISPOSITION\" shall have the meaning set forth in the Prudential\nLetter.\n\n \"PERMITTED INVESTMENTS\" shall mean: (i) readily marketable securities\nissued or fully guaranteed by the United States of America with maturities of\nnot more than one year, (ii) commercial paper rated \"Prime 1\" by Moody's\nInvestors Service, Inc. or \"A-1\" by Standard and Poor's Ratings Services with\nmaturities of not more than 180 days and (iii) certificates of deposit or\nrepurchase obligations issued by any U.S. domestic bank having capital surplus\nof at least $100,000,000 or by any other financial institution acceptable to\nyou, all of the foregoing not having a maturity of more than one year from the\ndate of issuance thereof.\n\n \"PERSON\" shall mean and include an individual, a partnership, a joint\nventure, a corporation, a trust, a limited liability company, an unincorporated\norganization and a government or any department or agency thereof.\n\n \"PLAN\" shall mean an employee pension benefit plan which is covered by\nTitle IV of ERISA or subject to the minimum funding standards under Section 412\nof the Code and is either (i) maintained by the Company or any member of the\nControlled Group for employees of the Company or any member of the Controlled\nGroup or (ii) maintained pursuant to a collective bargaining agreement or any\nother arrangement under which more than one employer makes contributions and to\nwhich the Company or any member of the Controlled Group is then making or\naccruing an obligation to make contributions or has within the preceding five\nplan years made contributions.\n\n\n 37\n\n \"PREFERRED DIVIDENDS\" shall mean, with respect to any period, dividends or\nother charges in respect of shares of the capital stock of the Company that are\nentitled to preference or priority over any other shares of the capital stock of\nthe Company in respect of payment of dividends or distribution of assets upon\nliquidation.\n\n \"PROPERTY\" shall mean any interest in any kind of property or asset,\nwhether real, personal or mixed, tangible or intangible.\n\n \"PRUDENTIAL\" shall mean The Prudential Insurance Company of America.\n\n \"PRUDENTIAL LETTER\" shall have the meaning specified in Section 7.3(a)(i).\n\n \"REGISTRATION RIGHTS AGREEMENT\" shall mean the Registration Rights\nAgreement, dated July 23, 1998 as amended by amendment dated of even date\nherewith, substantially in the form of Exhibit J attached hereto, by and between\nyou and the Company as the same may be amended, restated, supplemented or\notherwise modified from time to time.\n\n \"REQUIRED HOLDER(S)\" shall mean the holder or holders of at least 66 2\/3%\nof the aggregate principal amount of the Notes from time to time outstanding.\n\n \"REQUIREMENTS OF ENVIRONMENTAL LAW\" shall mean all requirements imposed by\nany law (including for example and without limitation The Resource Conservation\nand Recovery Act and The Comprehensive Environmental Response, Compensation, and\nLiability Act), rule, regulation, or order of any federal, state or local\nexecutive, legislative, judicial, regulatory or administrative agency, board or\nauthority in effect at the applicable time which relate to (i) noise; (ii)\npollution, protection or clean-up of the air, surface water, ground water or\nland; (iii) solid, gaseous or liquid waste generation, treatment, storage,\ndisposal or transportation; (iv) exposure to Hazardous Substances; (v) the\nsafety or health of employees or (vi) regulation of the manufacture, processing,\ndistribution in commerce, use, discharge or storage of Hazardous Substances.\n\n \"RESPONSIBLE OFFICER\" shall mean the chief executive officer, chief\noperating officer, chief financial officer or chief accounting officer of a\nTransaction Party.\n\n \"RESTRICTED PAYMENT\" shall mean (i) the declaration of any dividend on, or\nthe incurrence of any liability to make any other payment or distribution in\nrespect of any capital stock or equity equivalent (except, in the case of a\nSubsidiary, dividends or other payments or distributions in respect of its\ncapital stock to the Company or a Wholly Owned Subsidiary) or (ii) the\ndistribution on account of the purchase, redemption or other retirement of any\nsuch capital stock (except, in the case of a Subsidiary, purchases, redemptions\nor other retirements of its capital stock from the Company or a Wholly Owned\nSubsidiary), provided, that such term shall specifically exclude (a) cash or\n --------\npaid-in-kind dividends on the Series E Stock, Series F Stock, Series G Stock,\n(b) paid-in-kind dividends on the Series A Stock, Series E Stock, Series F\n\n\n 38\n\nStock, Series G Stock, Series H Stock and the 10% Stock (collectively, \"Junior\nPreferred Stock\"), and (c) the declaration and payment of dividends in respect\nof common stock payable solely in common stock.\n\n \"SCHEDULED PRINCIPAL PAYMENTS\" shall mean scheduled principal payments due\nwith respect to Indebtedness of the Company or any of its Subsidiaries whether\nsuch scheduled payment is due because of amortization or maturity of such\nIndebtedness.\n\n \"SECURITIES\" shall mean the Notes, Preferred Stock and the Warrants.\n\n \"SECURITIES ACT\" shall mean the Securities Act of 1933, as amended.\n\n \"SENIOR DEBT\" shall mean Indebtedness for borrowed money, principal,\ninterest, premium, if any, and all other obligations owing pursuant to (i) the\nExisting Senior Credit Facility and (ii) the New Senior Credit Facility.\n\n \"SIGNIFICANT HOLDER\" shall mean (i) you, so long as you shall hold any\nNote, or (ii) any other holder of at least 5% of the aggregate principal amount\nof the Notes from time to time outstanding.\n\n \"SIGNIFICANT SUBSIDIARY\" shall mean any Subsidiary that accounts for 10% or\nmore of (i) the Company's and its Subsidiaries' total assets, determined in\naccordance with GAAP, at any time, (ii) EBITDA (a) for the fiscal year most\nrecently ended or (b) for the current fiscal year (as reasonably estimated by\nthe Company in good faith) or (iii) consolidated net worth at any time.\n\n \"SUBORDINATED GUARANTY AGREEMENT\" shall mean the Guaranty Agreement, dated\nas of December 28, 2000, made by each Domestic Subsidiary of the Company, in\nfavor of you and all subsequent holders of the Notes, substantially in the form\nof Exhibit K attached hereto, together with any Guaranty Agreement hereafter\nexecuted by any Subsidiary as contemplated under Section 6.11, as each may be\namended, restated, supplemented and otherwise modified from time to time.\n\n \"SUBSIDIARY\" shall mean (i) any corporation, at least 50% of the total\ncombined voting power of all classes of Voting Stock of which shall, at the time\nas of which any determination is being made, be owned by the Company, either\ndirectly or through Subsidiaries (including, without limitation, the Acquired\nCompany), and (ii) any partnership, limited liability company, joint venture or\nsimilar entity if at least a 50% interest in the profits or capital thereof is\nowned by the Company, either directly or through Subsidiaries (unless such\nentity can and does ordinarily take major business actions without the prior\napproval, direct or indirect, of the Company), provided, however, that\n ------------------\nnotwithstanding anything to the contrary contained in the foregoing, the term\nSubsidiary shall not include ITS Supply Corporation or its subsidiaries so long\nas ITS Supply Corporation is engaged in a proceeding under any Bankruptcy Law.\n\n\n 39\n\n \"SWAPS\" shall mean with respect to any Person, payment obligations with\nrespect to interest rate swaps, currency swaps and similar obligations\nobligating such Person to make payments, whether periodically or upon the\nhappening of a contingency. For the purposes of this Restructuring Agreement,\nthe amount of the obligation under any Swap shall be the amount determined in\nrespect thereof as of the end of the then most recently ended fiscal quarter of\nsuch Person, based on the assumption that such Swap had terminated at the end of\nsuch fiscal quarter, and in making such determination, if any agreement relating\nto such Swap provides for the netting of amounts payable by and to such Person\nthereunder or if any such agreement provides for the simultaneous payment of\namounts by and to such Person, then in each such case, the amount of such\nobligation shall be the net amount so determined.\n\n \"TERMINATION EVENT\" shall mean (i) a Reportable Event described in Section\n4043 of ERISA and the regulations issued thereunder (other than a Reportable\nEvent not subject to the provision for 30-day notice to the PBGC under such\nregulations), or (ii) the withdrawal of the Company or any of its ERISA\nAffiliates from a Plan during a plan year in which it was a \"substantial\nemployer\" as defined in Section 400l(a)(2) of ERISA, or (iii) the filing of a\nnotice of intent to terminate a Plan or the treatment of a Plan amendment as a\ntermination under Section 4041 of ERISA, or (iv) the institution of proceedings\nto terminate a Plan by the PBGC, or (v) any other event or condition that might\nconstitute grounds under Section 4042 of ERISA for the termination of, or the\nappointment of a trustee to administer, any Plan.\n\n \"10% STOCK\" shall have the meaning specified in Section 2.2(c).\n\n \"TOTAL DEBT\" shall mean the total Indebtedness of the Company and its\nSubsidiaries on a consolidated basis; provided, that Total Debt shall not\ninclude Indebtedness permitted by clause (iii) of Section 7.3(b).\n\n \"TRANSACTION PARTIES\" shall mean the Company and its Subsidiaries.\n\n \"TRANSFEREE\" shall mean any direct or indirect transferee of all or any\npart of any Note or Warrant issued to you under this Restructuring Agreement.\n\n \"TRIBUNAL\" shall mean any municipal, state, commonwealth, federal, foreign,\nterritorial or other sovereign, governmental entity, governmental department,\ncourt, commission, board, bureau, agency or instrumentality.\n\n \"VOTING STOCK\" shall mean securities or other equity interest of any class\nor classes, the holders of which are ordinarily, in the absence of\ncontingencies, entitled to vote for the election or removal of corporate\ndirectors or persons (such as general partners or managers) performing similar\nfunctions in the case of business entities other than corporations.\n\n \"WARRANTS\" shall have the meaning specified in Section 2.3\n\n \"WHOLLY OWNED SUBSIDIARY\" shall mean any Subsidiary all of the equity\ninterests (except directors' qualifying shares) of which are owned, directly or\nindirectly, by the Company or other Wholly Owned Subsidiaries.\n\n\n 40\n\n 11.2 ACCOUNTING PRINCIPLES, TERMS AND DETERMINATIONS. All references in\nthis Restructuring Agreement to \"GAAP\" shall be deemed to refer to generally\naccepted accounting principles in effect in the United States at the time of\napplication thereof. Unless otherwise specified herein, all accounting terms\nused herein shall be interpreted, all determinations with respect to accounting\nmatters hereunder shall be made, and all unaudited financial statements and\ncertificates and reports as to financial matters required to be furnished\nhereunder shall be prepared, in accordance with generally accepted accounting\nprinciples, applied on a basis consistent with the most recent audited\nconsolidated financial statements of the Company and its Subsidiaries delivered\npursuant to clause (ii) of Section 6.2 or, if no such statements have been so\ndelivered, the most recent audited financial statements referred to in clause\n(i) of Section 9.2.\n\n 12. MISCELLANEOUS.\n\n 12.1 NOTE PAYMENTS. So long as you shall hold any Note, the Company will\nmake payments of principal of and interest on such Note, which comply with the\nterms of this Restructuring Agreement, by wire transfer of immediately available\nfunds for credit (not later than 12:00 noon, New York City time, on the date\ndue) to your account or accounts as specified in the Purchaser Schedule attached\nhereto, or such other account or accounts in the United States as you may\ndesignate in writing, notwithstanding any contrary provision herein or in any\nNote with respect to the place of payment. You agree that, before disposing of\nany Note, you will make a notation thereon (or on a schedule attached thereto)\nof all principal payments previously made thereon and of the date to which\ninterest thereon has been paid. The Company agrees to afford the benefits of\nthis Section 12.1 to any Transferee which shall have made the same agreement as\nyou have made in this Section 12.1.\n\n 12.2 EXPENSES. The Company agrees, whether or not the transactions\ncontemplated hereby shall be consummated, to pay, and save you and any\nTransferee harmless against liability for the payment of, all out-of-pocket\nexpenses arising in connection with such transactions, including (i) all\ndocument production and duplication charges and the fees and expenses of any\nspecial counsel engaged by you and such Transferee in connection with this\nRestructuring Agreement, the Securities or the other Note Documents and the\ntransactions contemplated thereby and hereby and any subsequent proposed\nmodification of, or proposed consent under, this Restructuring Agreement or the\nother Note Documents, whether or not such proposed modification shall be\neffected or proposed consent granted, (ii) all costs and expenses, including\nattorneys' fees, incurred by you and such Transferee in enforcing (or\ndetermining whether or how to enforce) any rights under this Restructuring\nAgreement, the Securities or the other Note Documents or in responding to any\nsubpoena or other legal process or informal investigative demand issued in\nconnection with this Restructuring Agreement, the other Note Documents or the\ntransactions contemplated hereby or thereby, or by reason of your or such\nTransferee's having acquired any Note or Warrant, including without limitation\ncosts and expenses incurred in any bankruptcy case and (iii) all costs and\nexpenses, including attorneys' fees, incurred by you in connection with the\npreparation of the proposed amendment to the Purchase Agreement and the\nPreexisting Obligations and in connection with enforcing (or determining how to\nenforce) any rights under the Purchase Agreement and the Preexisting Obligations\n\n\n 41\n\n(all such amounts collectively referred to in subsections (i), (ii) and (iii) of\nthis Section 12.2, the \"Expenses\"). The sum of $45,000 of such Expenses shall\nbe due and payable in immediately available funds at the Closing (the \"Expenses\nCash Payment\"), and the the sum of $200,000 of such Expenses, shall be added to\nthe aggregate principal amount of the Notes (the \"Expenses Note Amount\"). The\nExpenses Cash Payment and the Expenses Note Amount represent a good faith\nestimate of all of the Expenses incurred by you through the date hereof. Any\nExpenses arising after the Date of Closing shall be paid by the Company promptly\nafter such Expenses are invoiced. The obligations of the Company under this\nSection 12.2 shall survive the transfer of any Securities or portion thereof or\ninterest therein by you or any Transferee, the payment of any Securities, the\nenforcement, amendment or waiver of any provision of this Restructuring\nAgreement or the other Note Documents, and the termination of this Restructuring\nAgreement or any of the other Note Documents.\n\n 12.3 CONSENT TO AMENDMENTS. This Restructuring Agreement and any of the\nother Note Documents may be amended, and the Company may take any action herein\nprohibited, or omit to perform any act herein required to be performed by it, if\nthe Company shall obtain the written consent to such amendment, action or\nomission to act, of the Required Holder(s) except that, without the written\nconsent of the holder or holders of all Notes at the time outstanding, no\namendment to this Restructuring Agreement shall change the maturity of any Note,\nor change the principal of, or the rate or time of payment of interest on any\nNote, or affect the time, amount or allocation of any prepayments, or change the\nproportion of the principal amount of the Notes required with respect to any\nconsent, amendment, waiver or declaration. Each holder of any Securities at the\ntime or thereafter outstanding shall be bound by any consent authorized by this\nSection 12.3, whether or not such Securities shall have been marked to indicate\nsuch consent, but any Securities issued thereafter may bear a notation referring\nto any such consent. No course of dealing between the Company and the holder of\nany Securities nor any delay in exercising any rights hereunder or under any\nSecurities shall operate as a waiver of any rights of any holder of such\nSecurities. As used herein and in the Securities, the term \"this Restructuring\nAgreement\" and references thereto shall mean this Restructuring Agreement as it\nmay from time to time be amended or supplemented.\n\n 12.4 FORM, REGISTRATION, TRANSFER AND EXCHANGE OF NOTES; LOST NOTES. The\nNotes are issuable as registered notes without coupons in denominations of at\nleast $100,000, except as may be reasonably necessary to reflect any principal\namount not evenly divisible by $100,000. The Company shall keep at its\nprincipal office a register in which the Company shall provide for the\nregistration of Notes and of transfers of Notes. Upon surrender for\nregistration of transfer of any Note at the principal office of the Company, the\nCompany shall, at its expense, execute and deliver one or more new Notes of like\ntenor and of a like aggregate principal amount, registered in the name of such\ntransferee or transferees. At the option of the holder of any Note, such Note\nmay be exchanged for other Notes of like tenor and of any authorized\ndenominations, of a like aggregate principal amount, upon surrender of the Note\nto be exchanged at the principal office of the Company. Whenever any Notes are\nso surrendered for exchange, the Company shall, at its expense, execute and\ndeliver the Notes which the holder making the exchange is entitled to receive.\nEvery Note surrendered for registration of transfer or exchange shall be duly\nendorsed, or be accompanied by a written instrument of transfer duly executed,\nby the holder of such Note or such holder's attorney duly authorized in writing.\n\n\n 42\n\nAny Note or Notes issued in exchange for any Note or upon transfer thereof shall\ncarry the rights to unpaid interest and interest to accrue which were carried by\nthe Note so exchanged or transferred, so that neither gain nor loss of interest\nshall result from any such transfer or exchange. Upon receipt of written notice\nfrom the holder of any Note of the loss, theft, destruction or mutilation of\nsuch Note and, in the case of any such loss, theft or destruction, upon receipt\nof such holder's unsecured indemnity agreement, or in the case of any such\nmutilation upon surrender and cancellation of such Note, the Company will make\nand deliver a new Note, of like tenor, in lieu of the lost, stolen, destroyed or\nmutilated Note.\n\n 12.5 PERSONS DEEMED OWNERS; PARTICIPATIONS. Prior to due presentment for\nregistration of transfer, the Company may treat the Person in whose name any\nNote is registered as the owner and holder of such Note for the purpose of\nreceiving payment of principal of and interest on such Note and for all other\npurposes whatsoever, whether or not such Note shall be overdue, and the Company\nshall not be affected by notice to the contrary. Subject to the preceding\nsentence, the holder of any Note may from time to time grant participations in\nsuch Note to any Person on such terms and conditions as may be determined by\nsuch holder in its sole and absolute discretion, provided, that any such\n --------\nparticipation shall be in a principal amount of at least $100,000.\n\n 12.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT. All\nrepresentations and warranties contained herein or in the other Note Documents\nor otherwise made in writing by or on behalf of the Company and its Subsidiaries\nin connection herewith and therewith shall survive the execution and delivery of\nthis Restructuring Agreement, the Notes, the Warrants and the other Note\nDocuments, the transfer by you of any Note or Warrant or portion thereof or\ninterest therein and the payment of any Note, and may be relied upon by any\nTransferee, regardless of any investigation made at any time by or on behalf of\nyou or any Transferee. Subject to the preceding sentence, this Restructuring\nAgreement, the Notes, the Warrants and the other Note Documents embody the\nentire agreement and understanding between you and the Company and supersede all\nprior agreements and understandings relating to the subject matter hereof.\n\n 12.7 SUCCESSORS AND ASSIGNS. All covenants and other agreements in this\nRestructuring Agreement contained by or on behalf of either of the parties\nhereto shall bind and inure to the benefit of the respective successors and\nassigns of the parties hereto (including, without limitation, any Transferee)\nwhether so expressed or not.\n\n 12.8 DISCLOSURE TO OTHER PERSONS. Except as provided in the second sentence\nof this Section 12.8, each holder and each Person that purchases a participation\nin a Note or any part thereof agrees that it will hold in confidence, in\naccordance with such procedures as such holder or Person applies generally to\n\n\n 43\n\ninformation of this kind, any Confidential Information provided by the Company\nor any Subsidiary; provided that such holder or Person will be free, after\n --------\nnotice to the Company, to correct any false or misleading information which may\nbecome public concerning the relationship of such holder or Person to the\nCompany. The Company acknowledges that the holder of any Note, Preferred Stock\nor Warrant may deliver copies of any financial statements and other documents or\nmaterials delivered to such holder, and disclose any other information disclosed\nto such holder, by or on behalf of the Company or any Subsidiary in connection\nwith or pursuant to this Restructuring Agreement or the other Note Documents to\n(i) such holder's directors, officers, employees, agents and professional\nconsultants, (ii) any other holder of any Note, Preferred Stock or Warrant,\n(iii) any Person to which such holder offers to sell such Note, Preferred Stock\nor Warrant or any part thereof, or any Person to which such holder sells or\noffers to sell a participation in all or any part of such Note, Preferred Stock\nor Warrant, or any Person from which such holder offers to purchase any security\nof the Company, subject to first obtaining an agreement that such Person will\nmaintain the confidentiality of such information upon the same terms as\ncontained herein, (iv) any federal or state regulatory authority having\njurisdiction over such holder, (v) the National Association of Insurance\nCommissioners or any similar organization or (vi) any other Person to which such\ndelivery or disclosure may be reasonably necessary or appropriate (a) in\ncompliance with any law, rule, regulation or order applicable to such holder,\n(b) in response to any subpoena or other legal process or informal investigative\ndemand or (c) in connection with any litigation to which such holder is a party,\nprovided that, in each case, unless prohibited by applicable law, reasonable\n--------\nprior written notice of the disclosure of such information shall be given to the\nCompany . Each holder agrees to use Confidential Information for internal\npurposes only.\n\n 12.9 NOTICES. All notices or other communications provided for hereunder\nshall be in writing and sent by first class mail or nationwide overnight\ndelivery service (with charges prepaid) and (i) if to you, addressed to you at\nthe address specified for such communications on the signature page hereof, or\nat such other address as you shall have specified to the Company in writing,\n(ii) if to any other holder of any Note or Warrant, addressed to such other\nholder at such address as such other holder shall have specified to the Company\nin writing or, if any such other holder shall not have so specified an address\nto the Company, then addressed to such other holder in care of the last holder\nof such Note or Warrant which shall have so specified an address to the Company,\nand (iii) if to the Company, addressed to it at 777 Post Oak Boulevard, Suite\n800, Houston, Texas 77056, Attention: Chief Financial Officer, or at such other\naddress as the Company shall have specified to the holder of each Note or\nWarrant in writing.\n\n 12.10 PAYMENTS DUE ON NON-BUSINESS DAYS. Anything in this Restructuring\nAgreement or the Notes to the contrary notwithstanding, any payment of principal\nof or interest on any Note that is due on a date other than a Business Day shall\nbe made on the next succeeding Business Day. If the date for any payment is\nextended to the next succeeding Business Day by reason of the preceding\nsentence, the period of such extension shall not be included in the computation\nof the interest payable on such Business Day.\n\n 12.11 SATISFACTION REQUIREMENT. If any agreement, certificate or other\nwriting, or any action taken or to be taken, is by the terms of this\nRestructuring Agreement required to be reasonably satisfactory to you or to the\nRequired Holder(s), the determination of such satisfaction shall be made by you\n\n\n 44\n\nor the Required Holder(s), as the case may be, in the sole and exclusive\njudgment (exercised in good faith) of the Person or Persons making such\ndetermination.\n\n 12.12 GOVERNING LAW. THIS RESTRUCTURING AGREEMENT SHALL BE CONSTRUED AND\nENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,\nTHE LAW OF THE STATE OF NEW YORK. This Restructuring Agreement may not be\nchanged orally, but (subject to the provisions of Section 12.3) only by an\nagreement in writing signed by the party against whom enforcement of any waiver,\nchange, modification or discharge is sought.\n\n 12.13 WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION.\n\n (I) THE COMPANY AND EACH HOLDER OF SECURITIES HEREBY KNOWINGLY,\n VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY\n JURY IN ANY LITIGATION OF ANY CLAIM WHICH IS BASED HEREON, OR ARISES OUT\n OF, UNDER, OR IN CONNECTION WITH THIS RESTRUCTURING AGREEMENT, THE NOTES,\n THE WARRANTS OR THE OTHER NOTE DOCUMENTS, OR ANY TRANSACTIONS RELATING\n HERETO OR THERETO, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS\n (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE COMPANY OR THE HOLDERS OF THE\n SECURITIES WHICH IS BASED HEREON, OR ARISES OUT OF, UNDER, OR IN CONNECTION\n WITH THIS RESTRUCTURING AGREEMENT, THE NOTES, THE WARRANTS OR THE OTHER\n NOTE DOCUMENTS, OR ANY TRANSACTIONS RELATING HERETO OR THERETO. THE COMPANY\n ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR YOU TO ENTER\n INTO THIS RESTRUCTURING AGREEMENT.\n\n (II) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS RESTRUCTURING\n AGREEMENT, THE NOTES, THE WARRANTS, THE OTHER NOTE DOCUMENTS OR ANY\n TRANSACTIONS RELATING HERETO OR THERETO, OR ANY COURSE OF CONDUCT, COURSE\n OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE COMPANY\n OR THE HOLDERS OF SECURITIES MAY BE BROUGHT IN THE COURTS OF THE STATE OF\n NEW YORK OR THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW\n YORK, AND THE COMPANY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS\n PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF\n\n\n 45\n\n THE AFORESAID COURTS. THE COMPANY AND EACH HOLDER OF SECURITIES HEREBY\n IRREVOCABLY WAIVES ANY OBJECTIONS, INCLUDING, WITHOUT LIMITATION, ANY\n OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON\n ---------\n CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH\n ----------\n ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.\n\n\n 12.14 SEVERABILITY. Any provision of this Restructuring Agreement\nwhich is prohibited or unenforceable in any jurisdiction shall, as to such\njurisdiction, be ineffective to the extent of such prohibition or\nunenforceability without invalidating the remaining provisions hereof, and any\nsuch prohibition or unenforceability in any jurisdiction shall not invalidate or\nrender unenforceable such provision in any other jurisdiction.\n\n 12.15 DESCRIPTIVE HEADINGS. The descriptive headings of the several\nSections of this Restructuring Agreement are inserted for convenience only and\ndo not constitute a part of this Restructuring Agreement.\n\n 12.16 MAXIMUM INTEREST PAYABLE. The Company, you and all other holders of\nthe Notes specifically intend and agree to limit contractually the amount of\ninterest payable under this Restructuring Agreement, the Notes and all other\ninstruments and agreements related hereto and thereto to the maximum amount of\ninterest lawfully permitted to be charged under applicable law. Therefore, none\nof the terms of this Restructuring Agreement, the Notes or any instrument\npertaining to or relating to this Restructuring Agreement or the Notes shall\never be construed to create a contract to pay interest at a rate in excess of\nthe maximum rate permitted to be charged under applicable law, and neither the\nCompany, any guarantor nor any other party liable or to become liable hereunder,\nunder the Notes, any guaranty or under any other instruments and agreements\nrelated hereto and thereto shall ever be liable for interest in excess of the\namount determined at such maximum rate, and the provisions of this Section 12.16\nshall control over all other provisions of this Restructuring Agreement, any\nNotes, any guaranty or any other instrument pertaining to or relating to the\ntransactions herein contemplated. If any amount of interest taken or received\nby you or any holder of a Note shall be in excess of said maximum amount of\ninterest which, under applicable law, could lawfully have been collected by you\nor such holder incident to such transactions, then such excess shall be deemed\nto have been the result of a mathematical error by all parties hereto and shall\nbe refunded promptly by the Person receiving such amount to the party paying\nsuch amount, or, at the option of the recipient, credited ratably against the\nunpaid principal amount of the Note or Notes held by you or such holder,\nrespectively. All amounts paid or agreed to be paid in connection with such\ntransactions which would under applicable law be deemed \"interest\" shall, to the\nextent permitted by such applicable law, be amortized, prorated, allocated and\nspread throughout the stated term of this Restructuring Agreement and the Notes.\n\"APPLICABLE LAW\" as used in this Section means that law in effect from time to\ntime which permits the charging and collection of the highest permissible\nlawful, nonusurious rate of interest on the transactions herein contemplated\nincluding laws of the State of New York and of the United States of America, and\n\"MAXIMUM RATE\" as used in this Section means, with respect to each of the Notes,\nthe maximum lawful, nonusurious rates of interest (if any) which under\napplicable law may be charged to the Company from time to time with respect to\nsuch Notes.\n\n\n 46\n\n 12.17 COUNTERPARTS. This Restructuring Agreement may be executed in any\nnumber of counterparts, each of which shall be an original but all of which\ntogether shall constitute one instrument.\n\n 12.18 TRANSFER RESTRICTIONS. During the period of the Call Option set\nforth in Section 3.3, you shall not transfer or dispose of the Notes, Preferred\nStock or, prior to July 1, 2001, Warrants unless (i) you transfer all of the\nNotes, Preferred Stock and, prior to July 1, 2001, Warrants, (ii) such transfer\nis made to a single transferee, and (iii) such transferee agrees in writing to\nbe bound to the provisions and obligations of this Restructuring Agreement. At\nno time may you transfer any of the Notes, Series E Stock, Series F Stock,\nSeries G Stock or the Warrants to the \"Prohibited Transferees\" listed in the\nPrudential Letter.\n\n 12.19 REPRESENTATIONS RELATING TO CALL OPTION. In the event the Company\nexercises its Call Option set forth in Section 3.3, the holder of the Notes,\nPreferred Stock, and, as appropriate, the Warrants, agrees to make\nrepresentation as to such holder's good title to the Securities being\nrepurchased by the Company, and that such Securities are free of any Lien or\nrestriction of any kind generated by such holder.\n\n 12.20 OBSERVER AND DIRECTOR. (a) Beginning on the date hereof and\ncontinuing until such time as (x) none of the Notes, Preferred Stock or Warrants\nshall be outstanding or (y) you shall have transferred such Securities pursuant\nto Section 12.18 hereof, and except for any such period as your designated\nrepresentative is a seated director of the Company pursuant to Section 12.20(b)\nhereof, the Company shall (i) permit you to appoint an observer (whom you may\nsubstitute from time to time at your sole discretion, upon notice to the\nCompany, the \"Observer\") to attend (in person or by telephone) all meetings of\nthe Board of Directors of the Company (the \"Board\") and committees of the Board,\n(ii) provide the Observer with advance notice of each such meeting, including\nsuch meeting's time and place, at the same time and in the same manner as such\nnotice is provided to the members of the Board, and (iii) provide the Observer\nwith copies of all materials, including notices, minutes, consents and regularly\ncompiled financial and operating data distributed to the members of the Board\nand shall permit the Observer to have the same access to information concerning\nthe business and operations of the Company, provided that the Observer shall not\n --------\nparticipate in any manner in any portion of a meeting in which the Board (or\ncommittee of the Board) discusses, considers or votes to approve any action to\nredeem, repurchase or otherwise refinance the Notes, Preferred Stock, or\nWarrants, or which relates to its rights and remedies relating to this\nRestructuring Agreement or the other Note Documents.\n\n (b) Unless the Company has exercised its Call Option as set forth in\nSection 3.3(a), beginning July 2, 2001, you shall have the right to direct the\nCompany to appoint your designated representative to serve as a director of the\nCompany (and such other representative as you shall designate to replace such\nperson in your sole discretion, the \"Director\"). At the next meeting of the\nCompany's stockholders, the Company will nominate and support the election of\nthe Director to continue to serve as a director of the Company. The Company\nshall continue to nominate and support the election of the Director until such\ntime as: (i) none of the Notes, Preferred Stock or Warrants shall be\n\n\n 47\n\noutstanding or (ii) you shall have transferred such Securities pursuant to\nSection 12.18 hereof, at which time the Director shall resign his or her\nposition as a director of the Company, provided that the Director shall not\n --------\nparticipate in any manner in any portion of a meeting in which the Board (or\ncommittee of the Board) discusses, considers or votes to approve any action to\nredeem, repurchase or otherwise refinance the Notes, Preferred Stock, or\nWarrants, or which relates to its rights and remedies relating to this\nRestructuring Agreement or the other Note Documents.\n\n 12.21 NO KNOWN CLAIMS. (a) You hereby acknowledge that, upon execution\nand delivery of this Restructuring Agreement by the parties hereto, delivery of\nthe Company Closing Deliveries to you and satisfaction or waiver of the\nConditions Precedent, you are unaware as of the date hereof of any claims,\nrights or causes of action that may have arisen in connection with the conduct,\nactions or lack of action by the Company, Specialty Finance Fund I, LLC or\nComerica Bank-Texas, and any of its officers, directors, employees, members and\nagents related to the Purchase Agreement, the 11.28% Notes and the Preexisting\nObligations.\n\n (b) The Company hereby acknowledge that, upon execution and delivery of\nthis Restructuring Agreement by the parties hereto, delivery of the Company\nClosing Deliveries to you and satisfaction or waiver of the Conditions\nPrecedent, the Company is unaware as of the date hereof of any claims, rights or\ncauses of action that may have arisen in connection with the conduct, actions or\nlack of action by you or any of your officers, directors, employees, members and\nagents related to the Purchase Agreement, the 11.28% Notes and the Preexisting\nObligations.\n\n\n 48\n\n If you are in agreement with the foregoing, please sign the form of\nacceptance on the enclosed counterpart of this letter and return the same to the\nCompany, whereupon this letter shall become a binding agreement between the\nCompany and you.\n\n Very truly yours,\n\n BOOTS & COOTS INTERNATIONAL WELL CONTROL, INC.\n\n\n By: _____________________________\n Title:\n\nThe foregoing Agreement is\nhereby accepted as of the\ndate first above written.\n\nTHE PRUDENTIAL INSURANCE COMPANY OF AMERICA\n\n\nBy: _____________________________\n Name:\n Title:\n\n\n\nAddress for Notices:\n\nThe Prudential Insurance Company of America\nc\/o Prudential Capital Group - Corporate & Project Workouts\nFour Gateway Center, 7th Floor\n100 Mulberry Street\nNewark, New Jersey 07102-4069\nAttention: Managing Director\nFax No.: (973) 802-2333\n\n\n 49\n\n EXHIBIT A\n ---------\n\n\n [FORM OF NOTE]\n\n BOOTS & COOTS INTERNATIONAL WELL CONTROL, INC.\n\n SENIOR SUBORDINATED NOTE DUE DECEMBER 30, 2005\n\n$7,200,000.00 December 28, 2000\n New York, New York\n\n FOR VALUE RECEIVED, the undersigned, BOOTS & COOTS INTERNATIONAL WELL\nCONTROL, INC. (the \"COMPANY\"), a corporation organized and existing under the\nlaws of the State of Delaware, hereby promises to pay to THE PRUDENTIAL\nINSURANCE COMPANY OF AMERICA, or registered assigns, the principal sum of SEVEN\nMILLION DOLLARS ($7,200,000) plus the amount of Interest Accruals provided for\n ----\nherein on December 30, 2005, with interest (computed on the basis of a 360-day\nyear comprised of twelve 30-day month) (a) on the unpaid balance thereof at the\nrate of 12% per annum from the date hereof, payable quarterly on the last\nbusiness day of March, June, September and December in each year (each, an\n\"Interest Payment Date\"), commencing with March 30, 2001, until the principal\nhereof shall have become due and payable, and (b) so long as an Event of Default\n(as defined in the Restructuring Agreement referred to below) is continuing, on\nthe unpaid balance thereof, and any overdue payment of interest, payable\nquarterly as aforesaid (or, at the option of the registered holder hereof, on\ndemand), at a rate per annum from time to time equal to the lesser of (a) the\nmaximum rate permitted by applicable law or (b) the greater of (i) 2% above the\nrate of interest publicly approved by The Bank of New York at its prime rate or\n(ii) fourteen percent (14.0%). In lieu of cash, at the Company's option, upon\nat least five Business Days written notice to the holder hereof, interest may\naccrue in whole or in part on each Interest Payment Date, until and including\nthe December 2002 Interest Payment Date, with such accruals (the \"INTEREST\nACCRUALS\") becoming a part of the principal sum hereof.\n\n Payments of principal of and interest on this Note are to be made at the\nmain office of The Bank of New York in New York City or at such other place as\nthe holder hereof shall designate to the Company in writing, in lawful money of\nthe United States of America.\n\n\n This Note (this \"NOTE\") is issued pursuant to a Subordinated Note\nRestructuring Agreement, dated as of December 28, 2000 (as such agreement is\namended, supplemented, restated or otherwise modified from time to time, the\n\"AGREEMENT\"), between the Company and The Prudential Insurance Company of\nAmerica, and is entitled to the benefits thereof. Capitalized terms used and not\notherwise defined herein have the meanings assigned to them in the Restructuring\nAgreement.\n\n This Note is a registered Note and, as provided in the Restructuring\nAgreement, upon surrender of this Note for registration of transfer, duly\nendorsed, or accompanied by a written instrument of transfer duly executed, by\nthe registered holder hereof or such holder's attorney duly authorized in\nwriting, a new Note of like tenor for a like principal amount will be issued to,\nand registered in the name of, the transferee. Prior to due presentment for\n\n\n A - 1\n\nregistration of transfer, the Company may treat the person in whose name this\nNote is registered as the owner hereof for the purpose of receiving payment and\nfor all other purposes, and the Company shall not be affected by any notice to\nthe contrary.\n\n This Note is subject to Section 3.3 of the Restructuring Agreement (Company\nCall Option), and optional prepayment, in whole or from time to time in part, on\nthe terms specified in the Restructuring Agreement.\n\n If an Event of Default, as defined in the Restructuring Agreement, shall\noccur and be continuing, the principal of this Note may be declared or otherwise\nbecome due and payable in the manner and with the effect provided in the\nRestructuring Agreement.\n\n The Company, and the purchaser and the registered holder of this Note\nspecifically intend and agree to limit contractually the amount of interest\npayable under this Note to the maximum amount of interest lawfully permitted to\nbe charged under applicable law. Therefore, none of the terms of this Note shall\never be construed to create a contract to pay interest at a rate in excess of\nthe maximum rate permitted to be charged under applicable law, and neither the\nCompany nor any other party liable or to become liable hereunder shall ever be\nliable for interest in excess of the amount determined at such maximum rate, and\nthe provisions of Section 12.16 of the Restructuring Agreement shall control\nover any contrary provision of this Note.\n\n THIS NOTE IS INTENDED TO BE PERFORMED IN THE STATE OF NEW YORK AND SHALL BE\nCONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW OF SUCH STATE.\n\n\n BOOTS & COOTS INTERNATIONAL WELL CONTROL, INC.\n\n\n By: _____________________________\n Title:\n\n\n A - 2\n\n================================================================================\n\n\n\n SUBORDINATED NOTE RESTRUCTURING AGREEMENT\n\n BETWEEN\n\n\n\n BOOTS & COOTS INTERNATIONAL WELL CONTROL, INC.\n\n AND\n\n\n\n THE PRUDENTIAL INSURANCE COMPANY OF AMERICA\n\n\n\n ____________________\n\n DATED AS OF DECEMBER 28, 2000\n ____________________\n\n\n\n\n<\/pre>\n
\n\n TABLE OF CONTENTS<\/p>\n (Not Part of Agreement)<\/p>\n
\n 1. CASH PAYMENTS 2<\/p>\n 1.1 Closing Payment 2<\/p>\n
1.2 Credit Facility Payment 2<\/p>\n
2. AUTHORIZATION OF ISSUE OF SECURITIES 2<\/p>\n
2.1 Authorization of Issue of Notes 2<\/p>\n
2.2 Authorization of Issue of Preferred Stock 2<\/p>\n
2.3 Authorization of Amendment of Original Warrant and Issue of New Warrants 4<\/p>\n
3. TRANSFER OF SECURITIES 4<\/p>\n
3.1 Transfer 4<\/p>\n
3.2 Closing 5<\/p>\n
3.3 Call Option 5<\/p>\n
3.4 Original Issue Discount 6<\/p>\n
4. CONDITIONS PRECEDENT 6<\/p>\n
4.1 Certain Documents 6<\/p>\n
4.2 Representations and Warranties; No Default; No Material Adverse Change 8<\/p>\n
4.3 Purchase Permitted By Applicable Laws 8<\/p>\n
4.4 Proceedings 8<\/p>\n
4.5 Related Proceedings 8<\/p>\n
4.6 Company Closing Deliverables 8<\/p>\n
4.7 Private Placement Number 8<\/p>\n
4.8 Fees 8<\/p>\n
5. PREPAYMENTS 9<\/p>\n
5.1 Optional Prepayment of Notes 9<\/p>\n
5.2 Partial Payments Pro Rata 9<\/p>\n
5.3 Retirement of Notes 9<\/p>\n
5.4 Notice of Prepayments 9<\/p>\n
6. AFFIRMATIVE COVENANTS 9<\/p>\n
6.1 Affirmative Covenants 9<\/p>\n
i<\/p>\n
6.2 Financial Statements 10<\/p>\n
6.3 Information Required by Rule 144A 13<\/p>\n
6.4 Inspection of Property 13<\/p>\n
6.5 Covenant to Secure Notes Equally 13<\/p>\n
6.6 Taxes, Existence, Regulations, Property, Etc. 13<\/p>\n
6.7 Maintenance of Insurance 14<\/p>\n
6.8 Maintenance of Directors’ and Officers’ Insurance 14<\/p>\n
6.9 ERISA Compliance 14<\/p>\n
6.10 Subsidiaries 14<\/p>\n
6.11 Maintenance of Books of Record; Reserves 15<\/p>\n
7. NEGATIVE COVENANTS 15<\/p>\n
7.1 Financial Covenants 15<\/p>\n
(a) Total Debt to EBITDA Ratio 15<\/p>\n
(b) EBITDA to Consolidated Interest Expense 15<\/p>\n
(c) Year-to-date EBITDA Levels 15<\/p>\n
7.2 Limitation on Restricted Payments 15<\/p>\n
7.3 Liens, Indebtedness, and Other Restrictions 15<\/p>\n
(a) Liens 15<\/p>\n
(b) Limitation on Indebtedness 16<\/p>\n
(c) Loans and Investments 17<\/p>\n
(d) Mergers, Consolidations and Acquisitions, etc. 18<\/p>\n
(e) Limitation on Asset Dispositions 18<\/p>\n
(f) Sale or Discount of Receivables 18<\/p>\n
(g) Transactions With Affiliates 19<\/p>\n
(h) Management Compensation Restriction 19<\/p>\n
7.4 Nature of Business 19<\/p>\n
7.5 Other Agreements 19<\/p>\n
7.6 Limitation on Certain Restrictive Agreements 19<\/p>\n
7.7 Prohibition Against Layering 19<\/p>\n
7.8 Limitation on Subsidiaries Activities 20<\/p>\n
ii<\/p>\n
8. EVENTS OF DEFAULT 20<\/p>\n
8.1 Acceleration 20<\/p>\n
8.2 Rescission of Acceleration 23<\/p>\n
8.3 Notice of Acceleration or Rescission 23<\/p>\n
8.4 Other Remedies 23<\/p>\n
9. REPRESENTATIONS, COVENANTS AND WARRANTIES 24<\/p>\n
9.1 Organization and Qualification 24<\/p>\n
9.2 Financial Statements 24<\/p>\n
9.3 Actions Pending 24<\/p>\n
9.4 Outstanding Indebtedness 25<\/p>\n
9.5 Title to Properties 25<\/p>\n
9.6 Possession of Franchises, Licenses 25<\/p>\n
9.7 Taxes 25<\/p>\n
9.8 Conflicting Agreements and Other Matters 25<\/p>\n
9.9 Authorized Capital Stock 26<\/p>\n
9.10 Offering of the Securities 26<\/p>\n
9.11 ERISA 27<\/p>\n
9.12 Governmental Consent 27<\/p>\n
9.13 Environmental Compliance 27<\/p>\n
9.14 Fiscal Year 27<\/p>\n
9.15 Disclosure 27<\/p>\n
9.16 Investment Company Act 28<\/p>\n
10. SUBORDINATION OF NOTES 28<\/p>\n
10.1 Subordination 28<\/p>\n
10.2 Obligation of the Company Unconditional 30<\/p>\n
10.3 Subrogation 30<\/p>\n
10.4 Subordination Definitions 30<\/p>\n
11. DEFINITIONS 31<\/p>\n
11.1 Terms 31<\/p>\n
11.2 Accounting Principles, Terms and Determinations 40<\/p>\n
iii<\/p>\n
12. MISCELLANEOUS 41<\/p>\n
12.1 Note Payments 41<\/p>\n
12.2 Expenses 41<\/p>\n
12.3 Consent to Amendments 42<\/p>\n
12.4 Form, Registration, Transfer and Exchange of Notes; Lost Notes 42<\/p>\n
12.5 Persons Deemed Owners; Participations 43<\/p>\n
12.6 Survival of Representations and Warranties; Entire Agreement 43<\/p>\n
12.7 Successors and Assigns 43<\/p>\n
12.8 Disclosure to Other Persons 43<\/p>\n
12.9 Notices 44<\/p>\n
12.10 Payments Due on Non-Business Days 44<\/p>\n
12.11 Satisfaction Requirement 44<\/p>\n
12.12 Governing Law 44<\/p>\n
12.13 Waiver of Jury Trial; Consent to Jurisdiction 45<\/p>\n
12.14 Severability 45<\/p>\n
12.15 Descriptive Headings 46<\/p>\n
12.16 Maximum Interest Payable 46<\/p>\n
12.17 Counterparts 46<\/p>\n
12.18 Transfer Restrictions. 46<\/p>\n
12.19 Representations Relating to Call Option. 47<\/p>\n
12.20 Observer and Director. 47<\/p>\n
12.21 No Known Claims 48
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
iv<\/p>\n
\n\n INDEX OF DEFINED TERMS
\n
\n10% STOCK. . . . . . . . . . . . . 4, 40
\n11.28% NOTES . . . . . . . . . . . 1
\nAFFILIATE. . . . . . . . . . . . . 31
\nAGREEMENT. . . . . . . . . . . . . 31, 1
\nAPPLICABLE LAW . . . . . . . . . . 46
\nASSET DISPOSITION. . . . . . . . . 31
\nBANKRUPTCY LAW . . . . . . . . . . 21, 31
\nBUSINESS DAY . . . . . . . . . . . 31
\nCALL OPTION PRICE. . . . . . . . . 5
\nCAPITALIZED LEASE OBLIGATION . . . 31
\nCHANGE IN CONTROL. . . . . . . . . 32
\nCLOSING. . . . . . . . . . . . . . 32
\nCLOSING DATE . . . . . . . . . . . 2
\nCLOSING PAYMENT. . . . . . . . . . 2
\nCODE . . . . . . . . . . . . . . . 32
\nComerica Facility. . . . . . . . . 7
\nCOMMON STOCK . . . . . . . . . . . 1, 32
\nCOMPANY. . . . . . . . . . . . . . 1
\nCOMPANY CLOSING DELIVERIES . . . . 5
\nCONFIDENTIAL INFORMATION . . . . . 32
\nCONSOLIDATED INTEREST EXPENSE. . . 32
\nCONSOLIDATED NET INCOME. . . . . . 33
\nCONTROLLED GROUP . . . . . . . . . 33
\nConversion Shares. . . . . . . . . 26
\nCONVERTIBLE SECURITIES . . . . . . 33
\nConvertible Shares . . . . . . . . 26
\nCREDIT FACILITY PAYMENT. . . . . . 2
\nCREDIT FACILITY PAYMENT DATE . . . 2
\nDATE OF CLOSING. . . . . . . . . . 2, 32
\nDEFAULT. . . . . . . . . . . . . . 33
\nDEFAULT SUBORDINATION EVENT. . . . 30
\nDEFAULT SUBORDINATION NOTICE . . . 30
\nDOMESTIC SUBSIDIARY. . . . . . . . 33
\nEBITDA . . . . . . . . . . . . . . 33
\nERISA. . . . . . . . . . . . . . . 33
\nERISA AFFILIATE. . . . . . . . . . 33
\nEVENT OF DEFAULT . . . . . . . . . 33
\nEXCHANGE ACT . . . . . . . . . . . 34
\nEXECUTIVE COMPENSATION . . . . . . 34
\nEXECUTIVE OFFICER. . . . . . . . . 34
\nEXISTING PREFERRED STOCK . . . . . 34
\nEXISTING SENIOR CREDIT FACILITY. . 34
\nEXPENSES . . . . . . . . . . . . . 34
\nEXPENSES CASH PAYMENT. . . . . . . 34
\nEXPENSES NOTE AMOUNT . . . . . . . 34
\nFAIR MARKET VALUE. . . . . . . . . 34
\nGAAP . . . . . . . . . . . . . . . 34, 40
\nGOVERNMENTAL AUTHORITY . . . . . . 34
\nGUARANTEE. . . . . . . . . . . . . 34
\nGUARANTY AGREEMENT . . . . . . . . 39<\/p>\n v<\/p>\n
HAZARDOUS SUBSTANCE. . . . . . . . 35
\nINDEBTEDNESS . . . . . . . . . . . 35
\nINTANGIBLES. . . . . . . . . . . . 35
\nINTEREST ACCRUALS. . . . . . . . . 1
\nInterest Payment Date. . . . . . . 1
\nINVESTMENT . . . . . . . . . . . . 35
\ninvestment company . . . . . . . . 28
\nKNOWLEDGE. . . . . . . . . . . . . 36
\nLEGAL REQUIREMENT. . . . . . . . . 36
\nLIEN . . . . . . . . . . . . . . . 36
\nMATERIAL ADVERSE EFFECT. . . . . . 36
\nMAXIMUM RATE . . . . . . . . . . . 46
\nMULTIEMPLOYER PLAN . . . . . . . . 36
\nNEW SENIOR CREDIT FACILITY . . . . 36
\nNOTE . . . . . . . . . . . . . . . 1
\nNOTE DOCUMENTS . . . . . . . . . . 36
\nNOTES. . . . . . . . . . . . . . . 2, 36
\nOBLIGATIONS. . . . . . . . . . . . 36
\nOFFICER’S CERTIFICATE. . . . . . . 37
\nORIGINAL WARRANT . . . . . . . . . 1
\nPARTICIPATION RIGHTS AGREEMENT . . 37
\nPBGC . . . . . . . . . . . . . . . 37
\nPERMITTED ACQUISITION. . . . . . . 37
\nPERMITTED DISPOSITION. . . . . . . 37
\nPERMITTED INVESTMENTS. . . . . . . 37
\nPERSON . . . . . . . . . . . . . . 37
\nPLAN . . . . . . . . . . . . . . . 37
\nPREEXISTING OBLIGATIONS. . . . . . 1
\nPREFERRED DIVIDENDS. . . . . . . . 37
\nPREFERRED STOCK. . . . . . . . . . 3
\nprohibited transaction,. . . . . . 11
\nPROPERTY . . . . . . . . . . . . . 38
\nPRUDENTIAL . . . . . . . . . . . . 38
\nPRUDENTIAL LETTER. . . . . . . . . 38
\nPURCHASE AGREEMENT . . . . . . . . 1
\nPURCHASE PRICE . . . . . . . . . . 1
\nqualified institutional buyer. . . 13
\nREGISTRATION RIGHTS AGREEMENT. . . 38
\nreportable event . . . . . . . . . 11
\nREQUIRED HOLDER(S) . . . . . . . . 38
\nRequirements of Environmental Law. 35, 38
\nRESPONSIBLE OFFICER. . . . . . . . 38
\nRESTRICTED PAYMENT . . . . . . . . 38
\nRESTRUCTURING AGREEMENT. . . . . . 1
\nSCHEDULED PRINCIPAL PAYMENTS . . . 39
\nSEC. . . . . . . . . . . . . . . . 25
\nSECURITIES . . . . . . . . . . . . 39
\nSECURITIES ACT . . . . . . . . . . 39
\nSENIOR DEBT. . . . . . . . . . . . 39
\nSERIES A STOCK . . . . . . . . . . 3
\nSERIES E DESIGNATION . . . . . . . 3
\nSERIES E PIK SHARES. . . . . . . . 3
\nSERIES E STOCK . . . . . . . . . . 2
\nSERIES F STOCK . . . . . . . . . . 3
\nSERIES G PIK SHARES. . . . . . . . 4
\nSERIES G STOCK . . . . . . . . . . 3
\nSeries H Stock . . . . . . . . . . 7
\nSIGNIFICANT HOLDER . . . . . . . . 39
\nSIGNIFICANT SUBSIDIARY . . . . . . 39
\nSTAND-STILL PERIOD . . . . . . . . 30
\nSUBORDINATION EVENT OF DEFAULT . . 30
\nSUBSIDIARY . . . . . . . . . . . . 39
\nsubstantial employer . . . . . . . 22, 40
\nSWAPS. . . . . . . . . . . . . . . 39
\nTERMINATION EVENT. . . . . . . . . 40
\nTOTAL DEBT . . . . . . . . . . . . 40
\nTRANSACTION PARTIES. . . . . . . . 40
\nTRANSFEREE . . . . . . . . . . . . 40
\nTRIBUNAL . . . . . . . . . . . . . 40
\nVOTING STOCK . . . . . . . . . . . 40
\nWARRANTS . . . . . . . . . . . . . 4, 40
\nWHOLLY OWNED SUBSIDIARY. . . . . . 40
\n<\/c><\/s><\/caption>\n<\/table>\n
vi<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6924,8598],"corporate_contracts_industries":[9445,9413],"corporate_contracts_types":[9560,9567],"class_list":["post-41331","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-boots---coots-international-well-control-inc","corporate_contracts_companies-prudential-financial-inc","corporate_contracts_industries-insurance__life","corporate_contracts_industries-energy__services","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41331","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41331"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41331"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41331"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41331"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}