Common use of Prepayment of Notes Clause in Contracts

Prepayment of Notes. (a) Subject to the provisions of this Section 3.1(a), the Company at its option may, after giving not less than 30 days' prior written notice (the "Company Conversion Notice") to the Purchaser and each Additional Note Purchaser, prepay the unpaid principal balance of the Notes, together with all accrued but unpaid interest on the principal amount being prepaid to the date of such prepayment, in whole or in part (in an aggregate amount of not less than $1,000,000 or any greater amount which is an even multiple of $100,000, or in an amount equal to the aggregate principal balance of all of the Notes) as set forth below; provided, however, that no prepayment shall be permitted under this Section 3.1(a) until such time as the Company shall have obtained the Stockholder/AMEX Conversion Approval. It is also expressly understood and agreed by the Company that, notwithstanding anything to the contrary contained herein or in any other Note Document, each holder of a Note shall have the right to convert such Note as provided in this Agreement notwithstanding the giving by the Company of any 30-day notice of prepayment under Section 3.1(a) hereof if such holder of a Note shall give to the Company the Company Conversion Notice or the Default Conversion Notice, as the case may be. (b) Not later than the second Business Day after any time that the Company or any of its Subsidiaries receives Equity Proceeds, the Company shall, unless waived by written notice given by the Requisite Noteholders, prepay the Notes in an amount equal to the Equity Proceeds received; provided, however, the Company shall have no obligation to prepay the Notes under this Section 3.1(b) if, so long as no Event of Default has occurred and is continuing, (i) the Equity Proceeds are less than $250,000 and (ii) the Equity Proceeds were raised pursuant to the payment of exercise prices of options for shares of Capital Stock of the Company held by any officer, director or employee of the Company or any of its Subsidiaries. The Company shall give the each holder of a Note not less than 30 days' prior written notice of a proposed receipt of Equity Proceeds by the Company or any of its Subsidiaries. (c) The premium to be paid on the principal amount of any prepayment shall be as follows: Payment Date Principal Premiums ------------ ------------------ Closing Date through the one year anniversary of the No Premium-100% of the principal amount of the Note Closing Date 5% Premium-105% of the principal amount of the Note The one year anniversary of the Closing Date through the 15 month anniversary of the Closing Date the 15 month anniversary of the Closing Date through the 2 10% Premium-110% of the principal amount of the Note year anniversary of the Closing Date (d) On the Maturity Date, the unpaid principal balance of the Notes, to the extent not sooner paid or prepaid hereunder, shall be paid in full (such amount to be determined after giving effect to the repayment provisions set forth in clause (a) above), together with accrued interest and fees thereon and all expenses, indemnities and other Obligations payable under the terms of the Notes or this Agreement. (e) The Company shall call Notes for prepayment pursuant to Section 3.1(a) by giving the written notice as called for by Section 3.1(a) to each holder of such Notes, which notice shall specify (i) the date fixed for such prepayment, (ii) the principal amount to be prepaid on such date, and (iii) the amount of accrued interest to be paid or anticipated to be paid on such date. Notice of prepayment having been so given shall be irrevocable, and the aggregate principal amount of the Notes so to be prepaid as specified in such notice, together with interest accrued thereon to such date fixed for prepayment, shall become due and payable on the specified prepayment date.

Prepayment of Notes. (a) Subject to the provisions of this Section 3.1(a), the The Company at its option may, after giving not less than 30 upon ten days' prior written notice (the "Company Conversion Notice") to the Purchaser and each Additional Note PurchaserHolders, at any time, prepay the unpaid principal balance all or any part of the Notes, together with all accrued but unpaid interest on the principal amount being prepaid to the date of such prepayment, in whole or in part (in an aggregate amount of not less than $1,000,000 or any greater amount which is an even multiple of $100,000, or in an amount Notes at a redemption price equal to the aggregate principal balance of all of the Notes) as set forth below; provided101% (or, however, that no prepayment shall be permitted under this Section 3.1(a) until such time as if the Company shall have obtained paid the Stockholder/AMEX Conversion Approval. It is also expressly understood and agreed fee required by Section 6.18(b), 100%) of the Company thatprincipal amount of Notes so prepaid, notwithstanding anything to together with accrued interest through the contrary contained herein date of prepayment; provided, 18 that the redemption price shall be 103% of par plus accrued interest if the Notes are refunded (whether at the time of redemption or maturity) with or in anticipation of funds raised by any other Note Document, each holder of a Note shall have the right to convert such Note financing transaction in which DLJSC has not acted as provided in this Agreement notwithstanding the giving by the Company of any 30-day notice of prepayment under Section 3.1(a) hereof if such holder of a Note shall give sole agent or underwriter to the Company the Company Conversion Notice or the Default Conversion Notice(unless DLJSC, as the case may bein its sole discretion, shall have consented thereto). (b) Not later than the second Business Day after any time that the Company or any of its Subsidiaries receives Equity Proceeds, the The Company shall, unless waived by written notice given promptly upon the receipt by the Requisite NoteholdersCompany of the Net Cash Proceeds of any Designated Transaction, prepay the an aggregate principal amount of Notes in an amount equal to the Equity Proceeds received; provided, however, the Company shall have no obligation to prepay the Notes under this Section 3.1(b) if, so long as no Event of Default has occurred and is continuing, (i) the Equity Proceeds are less than $250,000 and (ii) the Equity Proceeds were raised pursuant to the payment of exercise prices of options for shares of Capital Stock of the Company held by any officer, director or employee of the Company or any of its Subsidiaries. The Company shall give the each holder of a Note not less than 30 days' prior written notice of a proposed receipt of Equity Proceeds by the Company or any of its Subsidiaries. (c) The premium to be paid on the principal amount of any prepayment shall be as follows: Payment Date Principal Premiums ------------ ------------------ Closing Date through the one year anniversary of the No Premium-100such Net Cash Proceeds, at a redemption price equal to 101% of the principal amount of the Note Closing Date 5Notes so prepaid, together with accrued interest through the date of prepayment; provided, that the redemption price shall be 103% Premium-105of par plus accrued interest if the Notes are refunded (whether at the time of redemption or maturity) with or in anticipation of funds raised by any financing transaction in which DLJSC has not acted as sole agent or underwriter to the Company (other than a fully underwritten bank financing pursuant to a signed commitment letter containing only such conditions as are usual and customary in such financings and which does not contain any condition relating to the successful syndication of such transaction); and provided, further, that Notes shall be required to be so prepaid only to the extent that Net Cash Proceeds from all Designated Transactions on and after the date hereof exceed $1,000,000. (c) The Company shall, immediately upon the occurrence of a Change in Control, prepay all Notes then outstanding at a redemption price equal to 103% of the principal amount of the Note The one year anniversary of the Closing Date through the 15 month anniversary of the Closing Date the 15 month anniversary of the Closing Date through the 2 10% Premium-110% of the principal amount of the Note year anniversary of the Closing Date (d) On the Maturity Date, the unpaid principal balance of the Notes, to the extent not sooner paid or prepaid hereunder, shall be paid in full (such amount to be determined after giving effect to the repayment provisions set forth in clause (a) above)thereof, together with accrued interest and fees thereon and all expenses, indemnities and other Obligations payable under through the terms date of prepayment. (d) Any prepayment of the Notes or this Agreementpursuant to Section 2.6(a) shall be in a minimum amount of at least $1,000,000 and multiples of $1,000,000, unless less than $1,000,000 of the Notes remains outstanding, in which case all of the Notes must be prepaid. Any prepayment of the Notes pursuant to Section 2.6(b) shall be in a minimum amount which is a multiple of $1,000 times the number of Holders at the time of such prepayment. (e) The Company Any partial prepayment shall call be made so that the Notes for prepayment pursuant then held by each Holder shall be prepaid in a principal amount which shall bear the same ratio, as nearly as may be, to Section 3.1(a) by giving the written notice total principal amount being prepaid as called for by Section 3.1(a) to each holder of such Notes, which notice shall specify (i) the date fixed for such prepayment, (ii) the principal amount of such Notes held by such Holder shall bear to be prepaid on such date, and (iii) the amount of accrued interest to be paid or anticipated to be paid on such date. Notice of prepayment having been so given shall be irrevocable, and the aggregate principal amount of all Notes then outstanding. In the Notes so to be prepaid as specified in such notice, together with interest accrued thereon to such date fixed for 19 event of a partial prepayment, upon presentation of any Note the Company shall become due execute and payable deliver to or on the specified prepayment dateorder of the Holder, at the expense of the Company, a new Note in principal amount equal to the remaining outstanding portion of such Note.

Prepayment of Notes. (aa.1) Subject to the provisions of this Section 3.1(a), the Company at its option may, after giving not less than 30 days' prior written notice (the "Company Conversion Notice") to the Purchaser and each Additional Note Purchaser, prepay the unpaid principal balance of the Notes, together with all accrued but unpaid interest on the The principal amount being prepaid due under the 1991 Note may be prepared in whole or in part, with accrued interest to the date of such prepayment, subject to this Section 2.03 and provided the Company pays a prepayment premium (the "1991 Note Prepayment Premium") equal to four and one-half percent (4.5%) of the outstanding principal balance at the time of prepayment, which percentage shall be reduced by one-half of one percent (0.5%) on January 1, 1999, and each succeeding year. Written notice of each optional prepayment of the 1991 Note shall be given to the Board (or the holder of the Notes), not less than ten (10) days prior to the proposed prepayment date, which shall coincide with a principal installment payment date, whereupon the principal amount of said prepayment, together with the Prepayment Premium applicable thereto, if any, shall become due and payable on such payment date. Such notice shall include a statement of the amount of principal to be prepaid and the payment date on which such prepayment will be made. The final determination of any prepayment fee hereunder shall be made by the Board and shall be conclusive and binding for all purposes absent manifest error. (a.2) The principal amount due under the 1998 Note may be prepaid in whole or in part (in an aggregate amount of not less than $1,000,000 or any greater amount which is an even multiple of $100,000, or in an amount equal with accrued interest to the aggregate principal balance date of all of the Notes) as set forth below; providedsuch prepayment, however, that no prepayment shall be permitted under subject to this Section 3.1(a) until such time as the Company shall have obtained the Stockholder/AMEX Conversion Approval. It is also expressly understood 2.03 and agreed by the Company that, notwithstanding anything to the contrary contained herein or in any other Note Document, each holder of a Note shall have the right to convert such Note as provided in this Agreement notwithstanding the giving by the Company of any 30-day notice of prepayment under Section 3.1(a) hereof if such holder of a Note shall give to the Company the Company Conversion Notice or the Default Conversion Notice, as the case may be.provided: (b) Not later than the second Business Day after any time that the Company or any of its Subsidiaries receives Equity Proceeds, the Company shall, unless waived by written notice given by the Requisite Noteholders, prepay the Notes in an amount equal to the Equity Proceeds received; provided, however, the Company shall have no obligation to prepay the Notes under this Section 3.1(b) if, so long as no Event of Default has occurred and is continuing, (i) the Equity Proceeds are less than $250,000 and (ii) the Equity Proceeds were raised pursuant to the payment of exercise prices of options for shares of Capital Stock of the Company held by any officer, director or employee of the Company or any of its Subsidiaries. The Company shall give provide the each holder of a Note Board with an Officer's Certificate, dated not less than 30 days' 15 days prior written notice of a proposed receipt of Equity Proceeds by to the Company or any of its Subsidiaries. (c) The premium to be paid on date fixed for said prepayment, setting forth the principal amount of any prepayment shall be as follows: Payment Date Principal Premiums ------------ ------------------ Closing Date through the one year anniversary Company's calculation of the No Premium-100% of prepayment premium, as defined below (the principal amount of the Note Closing Date 5% Premium-105% of the principal amount of the Note The one year anniversary of the Closing Date through the 15 month anniversary of the Closing Date the 15 month anniversary of the Closing Date through the 2 10% Premium-110% of the principal amount of the Note year anniversary of the Closing Date (d) On the Maturity Date, the unpaid principal balance of the Notes, to the extent not sooner paid or prepaid hereunder, shall be paid in full (such amount to be determined after giving effect to the repayment provisions set forth in clause (a) above"1998 Prepayment Premium"), together due in connection with accrued interest and fees thereon and all expensessuch prepayment, indemnities and other Obligations payable under the terms calculated as of the Notes or this Agreement. (e) The Company shall call Notes for prepayment pursuant to Section 3.1(a) by giving the written notice as called for by Section 3.1(a) to each holder of such Notes, which notice shall specify (i) the date fixed for such prepayment, together with any accompanying worksheets; (ii) if the principal amount Board disagrees with the Company's calculation of the Prepayment Premium, the Board shall so notify the Company in writing prior to be prepaid on such datethe date fixed for said prepayment, and the Board's recalculation of the Prepayment Premium shall be deemed conclusive absent manifest error; and (iii) on the date fixed for said prepayment, the Company paid to the Board the amount of accrued interest to be paid or anticipated to be paid on such date. Notice of prepayment having been so given shall be irrevocable, and the aggregate principal amount of the Notes so to be prepaid as specified in such notice, together with interest accrued thereon to such date fixed for prepayment, shall become due and payable on the specified prepayment datePrepayment Premium.

Prepayment of Notes. (a) Subject On the earlier to occur of (i) the provisions of this Section 3.1(a), 5th Business Day following the Company at its option may, after giving not less than 30 days' prior written notice (the "Company Conversion Notice") to the Purchaser and each Additional Note Purchaser, prepay the unpaid principal balance of the Notes, together with all accrued but unpaid interest on the principal amount being prepaid to the date of such prepayment, in whole or in part (in an aggregate amount of not less than $1,000,000 or any greater amount which is an even multiple of $100,000, or in an amount equal to the aggregate principal balance of all of the Notes) as set forth below; provided, however, that no prepayment shall be permitted under this Section 3.1(a) until such time as the Company shall have obtained the Stockholder/AMEX Conversion Approval. It is also expressly understood and agreed by the Company that, notwithstanding anything to the contrary contained herein or in any other Note Document, each holder of a Note shall have the right to convert such Note as provided in this Agreement notwithstanding the giving receipt by the Company of any 30-day notice aggregate proceeds from the Tax Refund of at least $10,000,000 and (ii) August 16, 2010, the Company shall make a prepayment under Section 3.1(aof the Notes in an aggregate principal amount equal to $10,000,000 plus (A) hereof if the lesser of (x) the amount by which the proceeds of the Tax Refund received by the Company, as of such holder date, exceeds $10,000,000 and (y) $2,000,0000 plus (B) the amount by which the proceeds of the Tax Refund received by the Company, as of such date, exceeds $17,000,000 (it being agreed that in the case of a Note payment made on August 16, 2010, the portion thereof, if any, otherwise required to be paid under clauses (A) and (B) above shall give only be required to be paid on such date to the Company extent the proceeds of the Tax Refund giving rise to such payment obligation were received by the Company Conversion Notice or no later than the Default Conversion Notice, as the case may be5th Business Day prior to such date). (b) Not later than To the second Business Day after extent of any time that proceeds from the Tax Refund received by the Company that are not required to prepay the Notes in accordance with Section 4(a) above (including, without limitation, as a result of the receipt of all or any portion of its Subsidiaries receives Equity Proceedsthe Tax Refund after August 16, 2010 and after the prepayment of the Notes in the principal amount of $10,000,000 contemplated by Section 4(a) has been paid), the Company shall, unless waived no later than the 5th Business Day following the receipt thereof (but, in any event, not before the prepayment required by written notice given by Section 4(a) above), first, apply such amounts to repay, redeem or retire the Requisite Noteholders, prepay the Notes Gores Subordinated Investment in an aggregate amount equal not exceeding the lesser of the aggregate amount of the Gores Subordinated Investment and $10,000,000, and second, to the Equity Proceeds received; providedextent of any proceeds of the Tax Refund in excess of $10,000,000 in the aggregate, however, the Company shall have no obligation to prepay the Notes under this Section 3.1(b) if, so long as no Event of Default has occurred and is continuing, apply (i) 100% of the Equity Proceeds are less than first $250,000 2,000,000 of such excess, and (ii) the Equity Proceeds were raised pursuant to the payment of exercise prices of options for shares of Capital Stock 100% of the Company held amount by any officerwhich such excess is greater than $7,000,000, director or employee of to prepay the Company or any of its Subsidiaries. The Company shall give the each holder of a Note not less than 30 days' prior written notice of a proposed receipt of Equity Proceeds by the Company or any of its SubsidiariesNotes. (c) The premium to be paid on the principal amount of In connection with any partial prepayment shall be as follows: Payment Date Principal Premiums ------------ ------------------ Closing Date through the one year anniversary of the No Premium-100% of the principal amount of the Note Closing Date 5% Premium-105% of the principal amount of the Note The one year anniversary of the Closing Date through the 15 month anniversary of the Closing Date the 15 month anniversary of the Closing Date through the 2 10% Premium-110% of the principal amount of the Note year anniversary of the Closing Date (d) On the Maturity Date, the unpaid principal balance of the Notes, to the extent not sooner paid or prepaid hereunder, shall be paid in full (such amount to be determined after giving effect to the repayment provisions set forth in clause (a) above), together with accrued interest and fees thereon and all expenses, indemnities and other Obligations payable under the terms of the Notes or this Agreement. (e) The Company shall call Notes for prepayment pursuant to Section 3.1(a4(a) by giving the written notice as called for by Section 3.1(aor 4(b) to each holder above that results in a prepayment of such Notes, which notice shall specify (i) the date fixed for such prepayment, (ii) the principal amount to be prepaid on such date, and (iii) the amount less than 5% of accrued interest to be paid or anticipated to be paid on such date. Notice of prepayment having been so given shall be irrevocable, and the aggregate principal amount of the Notes then outstanding, the Company shall request that each of the Noteholders waive the requirement under Section 7.3 of the Securities Purchase Agreement that any partial prepayment of the Notes be not less than 5% of the aggregate principal amount of the Notes then outstanding (the “5% Minimum Requirement”) solely with respect to any such prepayment under Section 4(a) or 4(b) above. In the event that the Company is unable to obtain such waiver from the Noteholders prior to the date any such partial prepayment is required, each of the undersigned Noteholders hereby waives any right it may have to take action under Section 11.1(b) or Section 11.2 with respect to any Default or Event of Default arising solely as a result of the failure of the Company to comply with the 5% Minimum Requirement in connection with any such prepayment under Section 4(a) or 4(b) above, so long as, if the Credit Agreement includes a cross default to the Securities Purchase Agreement at the time such prepayment is made, the Banks shall have similarly agreed not to take action with respect to any such cross default that exists under the Credit Agreement as a result of such prepayment. The waiver set forth in the preceding sentence is a limited waiver and shall not be prepaid deemed to constitute a waiver of any other Default or Event of Default or, except as specified specifically set forth in the preceding sentence, any future breach or violation of the Securities Purchase Agreement, any of the other Financing Documents or any document entered into in connection therewith. Except as expressly provided herein, the foregoing waiver shall not constitute (a) a modification or alteration of the terms, conditions or covenants of the Securities Purchase Agreement, any of the other Financing Documents or any document entered into in connection therewith, or (b) a waiver, release or limitation upon the exercise by the Noteholders of any of their rights, legal or equitable, hereunder or under the Securities Purchase Agreement, any Financing Document or any document entered into in connection therewith. Except as set forth above, each of the undersigned Noteholders reserves any and all rights and remedies which it has had, has or may have under the Securities Purchase Agreement, each Financing Document and any document entered into in connection therewith. Each of the undersigned Noteholders stipulates that the remedies at law of the Company in the event of any default or threatened default by such noticeundersigned Noteholders in the performance of or compliance with the terms of this Section 4(c) solely with respect to its waiver of any right it may have to take action under Section 11.1(b) or Section 11.2 with respect to any Default or Event of Default arising solely as a result of the failure of the Company to comply with the 5% Minimum Requirement as provided above are not and will not be adequate and that, together with interest accrued thereon to the fullest extent permitted by law, such date fixed terms may be specifically enforced by a decree for prepaymentthe specific performance of any agreement contained herein or by an injunction against a violation of any of the terms hereof or otherwise. The foregoing notwithstanding, shall become due the Company does not concede that any payment made under Section 4(a) or Section 4(b) of this Amendment (including any partial prepayment of the Notes pursuant to Section 4(a) or 4(b) above that results in a prepayment of less than 5% of the aggregate principal amount of the Notes then outstanding) would constitute a breach of the 5% Minimum Requirement or otherwise entitle any Noteholders to assert the same. For the avoidance of doubt, the Company will make the prepayments required by Section4(a) and payable on 4(b) regardless of whether or not the specified prepayment datewaiver referred to in this Section 4(c) is obtained.

Prepayment of Notes. (a) Subject Promptly following the receipt by the Company of aggregate net cash proceeds from (i) the exercise of the call option by Excelsior Radio Networks, Inc. (together with its successors or assigns, “Excelsior”) pursuant to Section 7.1 of that certain Management Agreement, dated as of May 23, 2006, by and between Westwood One Radio Networks, Inc. and Excelsior (as amended, restated, supplemented or otherwise modified from time to time, the provisions “Excelsior Management Agreement”), or (ii) the exercise of this the put option by Westwood One Radio Networks, Inc., pursuant to Section 3.1(a7.2 of the Excelsior Management Agreement (collectively, the “Put/Call Proceeds”), the Company at its option may, after giving not less than 30 days' prior written notice (the "Company Conversion Notice") to the Purchaser and each Additional Note Purchaser, prepay the unpaid principal balance shall promptly make a prepayment of the Notes (other than the Gores Notes, together with all accrued but unpaid interest on the principal amount being prepaid to the date of such prepayment, in whole or in part () in an aggregate amount of not less than $1,000,000 or any greater amount which is an even multiple of $100,000, or in an principal amount equal to the aggregate principal balance 100% of all such Put/Call Proceeds pursuant to Section 7.3 of the Notes) as set forth below; provided, however, that no prepayment shall be permitted under this Section 3.1(a) until such time as the Company shall have obtained the Stockholder/AMEX Conversion Approval. It is also expressly understood and agreed by the Company that, notwithstanding anything to the contrary contained herein or in any other Note Document, each holder of a Note shall have the right to convert such Note as provided in this Agreement notwithstanding the giving by the Company of any 30-day notice of prepayment under Section 3.1(a) hereof if such holder of a Note shall give to the Company the Company Conversion Notice or the Default Conversion Notice, as the case may beSecurities Purchase Agreement. (b) Not later than the second Business Day after In connection with any time that the Company or any of its Subsidiaries receives Equity Proceeds, the Company shall, unless waived by written notice given by the Requisite Noteholders, prepay the Notes in an amount equal to the Equity Proceeds received; provided, however, the Company shall have no obligation to prepay the Notes under this Section 3.1(b) if, so long as no Event of Default has occurred and is continuing, (i) the Equity Proceeds are less than $250,000 and (ii) the Equity Proceeds were raised pursuant to the payment of exercise prices of options for shares of Capital Stock of the Company held by any officer, director or employee of the Company or any of its Subsidiaries. The Company shall give the each holder of a Note not less than 30 days' prior written notice of a proposed receipt of Equity Proceeds by the Company or any of its Subsidiaries. (c) The premium to be paid on the principal amount of any partial prepayment shall be as follows: Payment Date Principal Premiums ------------ ------------------ Closing Date through the one year anniversary of the No Premium-100% of the principal amount of the Note Closing Date 5% Premium-105% of the principal amount of the Note The one year anniversary of the Closing Date through the 15 month anniversary of the Closing Date the 15 month anniversary of the Closing Date through the 2 10% Premium-110% of the principal amount of the Note year anniversary of the Closing Date (d) On the Maturity Date, the unpaid principal balance of the Notes, to the extent not sooner paid or prepaid hereunder, shall be paid in full (such amount to be determined after giving effect to the repayment provisions set forth in clause (a) above), together with accrued interest and fees thereon and all expenses, indemnities and other Obligations payable under the terms of the Notes or this Agreement. (e) The Company shall call Notes for prepayment pursuant to Section 3.1(a7(a) by giving the written notice as called for by Section 3.1(a) to each holder above that results in a prepayment of such Notes, which notice shall specify (i) the date fixed for such prepayment, (ii) the principal amount to be prepaid on such date, and (iii) the amount less than 5% of accrued interest to be paid or anticipated to be paid on such date. Notice of prepayment having been so given shall be irrevocable, and the aggregate principal amount of the Notes then outstanding, the Company shall request that each of the Noteholders waive the requirement under Section 7.3 of the Securities Purchase Agreement that any partial prepayment of the Notes be not less than 5% of the aggregate principal amount of the Notes then outstanding (the “5% Minimum Requirement”) solely with respect to any such prepayment under Section 7(a) above. In the event that the Company is unable to obtain such waiver from the Noteholders prior to the date any such partial prepayment is required, each of the undersigned Noteholders hereby waives any right it may have to take action under Section 11.1(b) or Section 11.2 with respect to any Default or Event of Default arising solely as a result of the failure of the Company to comply with the 5% Minimum Requirement in connection with any such prepayment under Section 7(a) above, so long as, if the Credit Agreement includes a cross default to the Securities Purchase Agreement at the time such prepayment is made, the Banks shall have similarly agreed not to take action with respect to any such cross default that exists under the Credit Agreement as a result of such prepayment. The waiver set forth in the preceding sentence is a limited waiver and shall not be prepaid deemed to constitute a waiver of any other Default or Event of Default or, except as specified specifically set forth in the preceding sentence, any future breach or violation of the Securities Purchase Agreement, any of the other Financing Documents or any document entered into in connection therewith. Except as expressly provided herein, the foregoing waiver shall not constitute (a) a modification or alteration of the terms, conditions or covenants of the Securities Purchase Agreement, any of the other Financing Documents or any document entered into in connection therewith, or (b) a waiver, release or limitation upon the exercise by the Noteholders of any of their rights, legal or equitable, hereunder or under the Securities Purchase Agreement, any Financing Document or any document entered into in connection therewith. Except as set forth above, each of the undersigned Noteholders reserves any and all rights and remedies which it has had, has or may have under the Securities Purchase Agreement, each Financing Document and any document entered into in connection therewith. Each of the undersigned Noteholders stipulates that the remedies at law of the Company in the event of any default or threatened default by such noticeundersigned Noteholders in the performance of or compliance with the terms of this Section 7(b) solely with respect to its waiver of any right it may have to take action under Section 11.1(b) or Section 11.2 with respect to any Default or Event of Default arising solely as a result of the failure of the Company to comply with the 5% Minimum Requirement as provided above are not and will not be adequate and that, together with interest accrued thereon to the fullest extent permitted by law, such date fixed terms may be specifically enforced by a decree for prepaymentthe specific performance of any agreement contained herein or by an injunction against a violation of any of the terms hereof or otherwise. The foregoing notwithstanding, shall become due and payable on the specified Company does not concede that any payment made under Section 7(a) of this Amendment (including any partial prepayment dateof the Notes pursuant to Section 7(a) above that results in a prepayment of less than 5% of the aggregate principal amount of the Notes then outstanding) would constitute a breach of the 5% Minimum Requirement or otherwise entitle any Noteholders to assert the same. For the avoidance of doubt, the Company will make the prepayments required by Section 7(a) regardless of whether or not the waiver referred to in this Section 7(b) is obtained.

Prepayment of Notes. (a) Subject to the provisions The Representative will not, and will not permit any of this Section 3.1(a), the Company at its option may, after giving not less than 30 days' prior written notice (the "Company Conversion Notice") to the Purchaser and each Additional Note PurchaserSubsidiaries to, prepay the unpaid principal balance New Senior Notes or the Senior Notes; provided that the Representative may prepay or redeem New Senior Notes or Senior Notes on any day with the amount, if any, by which the average of the Notes, together with all accrued but unpaid interest Consolidated Cash Balances at the close of business on the principal three consecutive Business Days immediately preceding such day (exclusive of any amount being prepaid escrowed pursuant to clause (iii)(B)(II) below), exceeds $125,000,000 if on such day (i) there shall be no Loans (as defined in the ▇▇▇▇▇▇ Credit Agreement) outstanding; (ii) the Obligations and the Mortgage Facility Obligations have been repaid in full; and (iii) either (A) (I) the Adjusted Leverage Ratio does not and did not exceed 5.00 to 1.00 on (x) such day, both prior to and after giving effect to such -24- prepayment, and (y) the last day of each of the two fiscal quarters most recently ended prior to such day and (II) the aggregate Commitments (as defined in the ▇▇▇▇▇▇ Credit Agreement) of all Existing Banks do not exceed $85,000,000 or (B) all of (I) the aggregate Commitments (as defined in the ▇▇▇▇▇▇ Credit Agreement) of all Existing Banks do not exceed $65,000,000, (II) the Representative shall have delivered to the date of such prepayment, in whole or in part (in an aggregate amount of not less than $1,000,000 or any greater amount which is an even multiple of $100,000, or Administrative Agent cash in an amount equal to the aggregate principal balance Letter of Credit Exposures (as defined in the ▇▇▇▇▇▇ Credit Agreement) of all Existing Banks then outstanding, to be held in escrow by the Administrative Agent to the extent that such Letter of Credit Exposures (as defined in the ▇▇▇▇▇▇ Credit Agreement) remain outstanding, (III) the Representative shall have entered into a binding agreement not thereafter to request or borrow any Loans (as defined in the ▇▇▇▇▇▇ Credit Agreement) under the ▇▇▇▇▇▇ Credit Agreement and (IV) the product of 5 multiplied by Annualized Mortgage EBITDA determined as of the Notesdate of such prepayment for the most recent fiscal quarter for which financial statements have been, or are required to have been, delivered pursuant to Section 10.1(d)(i) as set forth below; providedor (ii), however, that no prepayment shall be permitted under this Section 3.1(a) until such time as equal or exceed the Company shall have obtained the Stockholder/AMEX Conversion Approval. It is also expressly understood and agreed product of 2 multiplied by the Company that, notwithstanding anything to aggregate Commitments (as defined in the contrary contained herein or in any other Note Document, each holder ▇▇▇▇▇▇ Credit Agreement) of a Note shall have the right to convert such Note as provided in this Agreement notwithstanding the giving by the Company of any 30-day notice of prepayment under Section 3.1(a) hereof if such holder of a Note shall give to the Company the Company Conversion Notice or the Default Conversion Notice, as the case may beall Existing Banks then outstanding. (b) Not later than the second Business Day after any time that the Company or any of its Subsidiaries receives Equity Proceeds, the Company shall, unless waived by written notice given by the Requisite Noteholders, prepay the Notes in an amount equal to the Equity Proceeds received; provided, however, the Company shall have no obligation to prepay the Notes under this Section 3.1(b) if, so long 7. Effective as no Event of Default has occurred and is continuing, (i) the Equity Proceeds are less than $250,000 and (ii) the Equity Proceeds were raised pursuant to the payment of exercise prices of options for shares of Capital Stock of the Company held by any officerAmendment No. 6 Effective Date, director or employee Schedule IV of the Company or any of Participation Agreement are hereby amended by deleting said schedule in its Subsidiaries. The Company shall give the each holder of entirety and replacing said schedule with Schedule IV attached hereto and made a Note not less than 30 days' prior written notice of a proposed receipt of Equity Proceeds by the Company or any of its Subsidiariespart hereof. (c) The premium to be paid on the principal amount of any prepayment shall be 8. Effective as follows: Payment Date Principal Premiums ------------ ------------------ Closing Date through the one year anniversary of the No Premium-100% of the principal amount of the Note Closing Date 5% Premium-105% of the principal amount of the Note The one year anniversary of the Closing Date through the 15 month anniversary of the Closing Date the 15 month anniversary of the Closing Date through the 2 10% Premium-110% of the principal amount of the Note year anniversary of the Closing Date (d) On the Maturity Amendment No. 6 Effective Date, the unpaid principal balance of the NotesSchedule VII and Schedule VIII hereto are hereby added as Schedule VII and Schedule VIII, respectively, to the extent not sooner paid or prepaid hereunder, shall be paid in full (such amount to be determined after giving effect to the repayment provisions set forth in clause (a) above), together with accrued interest and fees thereon and all expenses, indemnities and other Obligations payable under the terms of the Notes or this Participation Agreement. (e) The Company shall call Notes for prepayment pursuant to Section 3.1(a) by giving the written notice as called for by Section 3.1(a) to each holder of such Notes, which notice shall specify (i) the date fixed for such prepayment, (ii) the principal amount to be prepaid on such date, and (iii) the amount of accrued interest to be paid or anticipated to be paid on such date. Notice of prepayment having been so given shall be irrevocable, and the aggregate principal amount of the Notes so to be prepaid as specified in such notice, together with interest accrued thereon to such date fixed for prepayment, shall become due and payable on the specified prepayment date.

Prepayment of Notes. (a) Subject to the provisions of Except as provided in this Section 3.1(a)5.25, the Company at its option shall have no right to prepay the principal amount of the Notes prior to the Maturity Date, or any interest accruing under the Notes prior to the scheduled date for payment of such interest. (b) The Company may, after giving not less than 30 days' prior by delivery of written notice (the "Company Conversion Prepayment Notice") to the Purchaser and each Additional Note Purchaser, prepay the unpaid principal balance of the Notes, together with all accrued but unpaid interest on the principal amount being prepaid to the date of such prepayment, in whole or in part (in an aggregate amount of not less than $1,000,000 or any greater amount which is an even multiple of $100,000, or in an amount equal to the aggregate principal balance of all of the Notes) as set forth below; provided, however, that no prepayment shall be permitted under this Section 3.1(a) until such time as the Company shall have obtained the Stockholder/AMEX Conversion Approval. It is also expressly understood and agreed by the Company that, notwithstanding anything to the contrary contained herein or in any other Note Document, each holder of a Note shall have the right to convert such Note as provided in this Agreement notwithstanding the giving by the Company of any 30-day notice of prepayment under Section 3.1(a) hereof if such holder of a Note shall give to the Company the Company Conversion Notice or the Default Conversion Notice, as the case may be. (b) Not later than the second Business Day after any time that the Company or any of its Subsidiaries receives Equity Proceeds, the Company shall, unless waived by written notice given by the Requisite Noteholders, prepay the Notes in an amount equal to the Equity Proceeds received; provided, however, the Company shall have no obligation to prepay the Notes under this Section 3.1(b) if, so long as no Event of Default has occurred and is continuing, (i) the Equity Proceeds are less than $250,000 and (ii) the Equity Proceeds were raised pursuant to the payment of exercise prices of options for shares of Capital Stock of the Company held by any officer, director or employee of the Company or any of its Subsidiaries. The Company shall give the each holder of a Note not less than 30 days' days prior written notice of a proposed receipt of Equity Proceeds by to the Company or any of its Subsidiaries. (c) The premium to be paid on the principal amount of any prepayment shall be as follows: Payment Date Principal Premiums ------------ ------------------ Closing Date through the one year fourth anniversary of the No Premium-100First Tranche Closing Date (or if such date is not a Business Day, the next succeeding Business Day) (the "Fourth Anniversary"), require the Purchaser to submit to the Company up to 50% of the principal amount of the Note Closing Date 5% Premium-105% of the principal amount of the Note The one year anniversary of the Closing Date through the 15 month anniversary of the Closing Date the 15 month anniversary of the Closing Date through the 2 10% Premium-110% of the principal amount of the Note year anniversary of the Closing Date (d) On the Maturity Date, the unpaid principal balance of the Notes, to the extent not sooner paid or prepaid hereunder, shall be paid in full (such amount to be determined after giving effect to the repayment provisions set forth in clause (a) above), together with accrued interest and fees thereon and all expenses, indemnities and other Obligations payable under the terms of the Notes or this Agreement. (e) The Company shall call Notes for prepayment pursuant to Section 3.1(a) by giving the written notice as called for by Section 3.1(a) to each holder of such Notes, which notice shall specify (i) the date fixed for such prepayment, (ii) the principal amount to be prepaid on such date, and (iii) the amount of accrued interest to be paid or anticipated to be paid on such date. Notice of prepayment having been so given shall be irrevocable, and the outstanding aggregate principal amount of the Notes so for prepayment on the Fourth Anniversary, subject to be prepaid as following terms and conditions: (i) In lieu of submitting Notes for prepayment on the Fourth Anniversary, the Purchaser may at any time following receipt of the Prepayment Notice and on or prior to the Fourth Anniversary, convert up to the principal amount of Notes specified in such notice, together with interest accrued thereon the Prepayment Notice. Any principal amount of Notes so converted by the Purchaser shall reduce on a dollar for dollar basis the principal amount of Notes the Purchaser is required to such date fixed submit for prepayment, shall become due and payable prepayment on the specified Fourth Anniversary. (ii) The Purchaser shall be entitled to select the Note or Notes (or the portions thereof) for conversion or prepayment datepursuant to this Section 5.25. (iii) The Prepayment Notice shall have no force or effect, and the Purchaser shall not be obligated to submit any Notes for prepayment (or to convert any principal amount of Notes in lieu thereof) unless the Market Price as of the Fourth Anniversary is at least equal to 200% of the conversion price then in effect under the First Tranche Note. (iv) The Company may not deliver more than one Prepayment Notice.

Prepayment of Notes. (a) Subject to the provisions The Borrower will not, and will not permit any of this Section 3.1(a), the Company at its option may, after giving not less than 30 days' prior written notice (the "Company Conversion Notice") to the Purchaser and each Additional Note PurchaserSubsidiaries to, prepay the unpaid principal balance New Senior Notes or the Senior Notes; provided that the Borrower may prepay or redeem New Senior Notes or Senior Notes on any day with the amount, if any, by which the average of the Notes, together with all accrued but unpaid interest Consolidated Cash Balances at the close of business on the principal three consecutive Business Days immediately preceding such day (exclusive of any amount being prepaid escrowed pursuant to clause (iii)(B)(II) below), exceeds $125,000,000 if on such day (i) there shall be no Loans outstanding; (ii) the date Bank of Montreal Synthetic Lease Obligations and the Mortgage Facility Obligations have been repaid in full; and (iii) either (A) (I) the Adjusted Leverage Ratio does not and did not exceed 5.00 to 1.00 on (x) such day, both prior to and after giving effect to such prepayment, in whole and (y) the last day of each of the two fiscal quarters most recently ended prior to such day and (II) the aggregate Commitments of all Banks do not exceed $85,000,000 or in part (in an B) all of (I) the aggregate amount Commitments of all Banks do not less than exceed $1,000,000 or any greater amount which is an even multiple of $100,00065,000,000, or (II) the Borrower shall have delivered to the Agent cash in an amount equal to the aggregate principal balance Letter of Credit Exposures of all of the Notes) as set forth below; providedBanks then outstanding, however, that no prepayment shall to be permitted under this Section 3.1(a) until such time as the Company shall have obtained the Stockholder/AMEX Conversion Approval. It is also expressly understood and agreed held in escrow by the Company that, notwithstanding anything to the contrary contained herein or in any other Note Document, each holder of a Note shall have the right to convert such Note as provided in this Agreement notwithstanding the giving by the Company of any 30-day notice of prepayment under Section 3.1(a) hereof if such holder of a Note shall give to the Company the Company Conversion Notice or the Default Conversion Notice, as the case may be. (b) Not later than the second Business Day after any time that the Company or any of its Subsidiaries receives Equity Proceeds, the Company shall, unless waived by written notice given by the Requisite Noteholders, prepay the Notes in an amount equal to the Equity Proceeds received; provided, however, the Company shall have no obligation to prepay the Notes under this Section 3.1(b) if, so long as no Event of Default has occurred and is continuing, (i) the Equity Proceeds are less than $250,000 and (ii) the Equity Proceeds were raised pursuant to the payment of exercise prices of options for shares of Capital Stock of the Company held by any officer, director or employee of the Company or any of its Subsidiaries. The Company shall give the each holder of a Note not less than 30 days' prior written notice of a proposed receipt of Equity Proceeds by the Company or any of its Subsidiaries. (c) The premium to be paid on the principal amount of any prepayment shall be as follows: Payment Date Principal Premiums ------------ ------------------ Closing Date through the one year anniversary of the No Premium-100% of the principal amount of the Note Closing Date 5% Premium-105% of the principal amount of the Note The one year anniversary of the Closing Date through the 15 month anniversary of the Closing Date the 15 month anniversary of the Closing Date through the 2 10% Premium-110% of the principal amount of the Note year anniversary of the Closing Date (d) On the Maturity Date, the unpaid principal balance of the Notes, Agent to the extent that such Letter of Credit Exposures remain outstanding, (III) the Borrower shall have entered into a binding agreement not sooner paid thereafter to request or prepaid hereunder, shall be paid in full borrow any Loans under this Agreement and (such amount to be IV) the product of 5 multiplied by Annualized Mortgage EBITDA determined after giving effect to the repayment provisions set forth in clause (a) above), together with accrued interest and fees thereon and all expenses, indemnities and other Obligations payable under the terms as of the Notes date of such prepayment for the most recent fiscal quarter for which financial statements have been, or this Agreement. (e) The Company shall call Notes for prepayment are required to have been, delivered pursuant to Section 3.1(a5.01(a) or (b), shall equal or exceed the product of 2 multiplied by giving the written notice as called for by Section 3.1(a) to each holder of such Notes, which notice shall specify (i) the date fixed for such prepayment, (ii) the principal amount to be prepaid on such date, and (iii) the amount of accrued interest to be paid or anticipated to be paid on such date. Notice of prepayment having been so given shall be irrevocable, and the aggregate principal amount Commitments of the Notes so to be prepaid as specified in such notice, together with interest accrued thereon to such date fixed for prepayment, shall become due and payable on the specified prepayment dateall Banks then outstanding.

Prepayment of Notes. (a) Subject to the provisions of this Section 3.1(a), the The Company at its option may, after giving not less than 30 days' prior written notice (the "Company Conversion Notice") to the Purchaser and each Additional Note Purchaser, prepay the unpaid principal balance of the Notes, together with all accrued but unpaid interest on the shall have prepaid a principal amount being prepaid to the date of such prepayment, in whole or in part (in an aggregate amount All Notes of not less than $1,000,000 or any greater amount which is an even multiple of $100,000, or All Series in an amount equal to 14.1949% of the aggregate principal balance amount of all of cash held in the Notes) as set forth below; provided, however, that no prepayment shall be permitted under this Section 3.1(a) until such time as the Company shall have obtained the Stockholder/AMEX Conversion Approval. It is also expressly understood and agreed United States by the Company that, notwithstanding anything to and its Subsidiaries in excess of $5,000,000 and all cash held outside the contrary contained herein or in any other Note Document, each holder of a Note shall have the right to convert such Note as provided in this Agreement notwithstanding the giving United States by the Company of any 30-day notice of prepayment under Section 3.1(a) hereof if such holder of a Note shall give to the Company the Company Conversion Notice or the Default Conversion Notice, as the case may be. (b) Not later than the second Business Day after any time that the Company or any of and its Subsidiaries receives Equity Proceedsin excess of $5,000,000, in each case as of March 11, 2011 (collectively, the Company shall“Available Cash”), unless waived by written notice given by the Requisite Noteholders, prepay the Notes but in an amount equal to the Equity Proceeds received; provided, however, the Company shall have no obligation to prepay the Notes under this Section 3.1(b) if, so long as no Event of Default has occurred and is continuing, (i) the Equity Proceeds are any event not less than $250,000 and (ii) the Equity Proceeds were raised pursuant to the payment of exercise prices of options for shares of Capital Stock of the Company held by any officer, director or employee of the Company or any of its Subsidiaries. The Company shall give the each holder of a Note not less than 30 days' prior written notice of a proposed receipt of Equity Proceeds by the Company or any of its Subsidiaries. (c) The premium to be paid on the 4,258,470.00 in principal amount of any such Notes. Such prepayment of All Notes of All Series shall be as follows: Payment Date Principal Premiums ------------ ------------------ Closing Date through the one year anniversary at a price of the No Premium-100100% of the principal amount of the Note Closing Date 5% Premium-105% of the principal amount of the Note The one year anniversary of the Closing Date through the 15 month anniversary of the Closing Date the 15 month anniversary of the Closing Date through the 2 10% Premium-110% of the principal amount of the Note year anniversary of the Closing Date (d) On the Maturity DateNotes to be prepaid, the unpaid principal balance of the Notes, plus interest accrued to the extent not sooner paid or prepaid hereunderdate of prepayment, shall be paid in full plus (such amount subject to be determined after giving effect to the repayment provisions set forth in clause (a) above), together with accrued interest and fees thereon clause (b) below) Make-Whole Amount and all expenses, indemnities and other Obligations payable under the terms of the Notes or this AgreementLIBOR Breakage Amount. (ea) With respect to outstanding principal amounts, such prepayment shall be allocated among All Notes of All Series in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof, based upon the principal amounts set forth in Annex I. Such payment of principal, plus interest accrued to the date of prepayment, plus LIBOR Breakage Amount, shall have been made in cash. (b) The Make-Whole Amounts payable in connection with such prepayment shall not be paid in cash at such time, but rather shall be capitalized in accordance with Section 2A and Section 8.10 of the 1999 Note Agreement (as amended by this Amendment Agreement, and the Company shall call have issued new senior notes (collectively, the “Make-Whole Notes”) substantially in the form of Exhibit ▇-▇, ▇-▇ or D-3, respectively, to this Amendment Agreement evidencing such capitalized Make-Whole Amounts. Such Make-Whole Notes for prepayment shall benefit from the grant of collateral pursuant to Section 3.1(a) by giving 8.1 hereof such that upon satisfaction of Section 8.1 hereof, the written notice as called for by Section 3.1(a) to each holder of such Notes, which notice shall specify (i) the date fixed for such prepayment, (ii) the principal amount to be prepaid on such date, and (iii) the amount of accrued interest to be paid or anticipated to be paid on such date. Notice of prepayment having been so given Make-Whole Notes shall be irrevocable, secured on a pari-passu basis with the Company’s Notes and the aggregate principal amount of the Notes so to be prepaid as specified in such notice, together with interest accrued thereon to such date fixed for prepayment, shall become due and payable on the specified prepayment dateother senior Indebtedness secured thereby.

Prepayment of Notes. (a) Subject to the provisions of this Section 3.1(a), the Company at its option may, after giving not less than 30 days' prior written notice (the "Company Conversion Notice") to the Purchaser and each Additional Note Purchaser, prepay the unpaid principal balance of the Notes, together with all accrued but unpaid interest on the principal amount being prepaid to the date of such prepayment, in whole or in part (in an aggregate amount of not less than $1,000,000 or any greater amount which is an even multiple of $100,000, or in an amount equal to the aggregate principal balance of all of the Notes) as set forth below; provided, however, that no prepayment shall be permitted under this Section 3.1(a) until such time as the Company shall have obtained the Stockholder/AMEX Conversion Approval. It is also expressly understood and agreed by the Company that, notwithstanding anything to the contrary contained herein or in any other Note Document, each holder of a Note shall have the right to convert such Note as provided in this Agreement notwithstanding the giving by the Company of any 30-day notice of prepayment under Section 3.1(a) hereof if such holder of a Note shall give to the Company the Company Conversion Notice or the Default Conversion Notice, as the case may be. (b) Not later than the second Business Day after any time that the Company or any of its Subsidiaries receives Equity Proceeds, the Company shall, unless waived by written notice given by the Requisite Noteholders, prepay the Notes in an amount equal to the Equity Proceeds received; provided, however, the Company shall have no obligation to prepay the Notes under this Section 3.1(b) if, so long as no Event of Default has occurred and is continuing, (i) the Equity Proceeds are less than $250,000 and (ii) the Equity Proceeds were raised pursuant to the payment of exercise prices of options for shares of Capital Stock of the Company held by any officer, director or employee of the Company or any of its Subsidiaries. The Company shall give the each holder of a Note not less than 30 days' prior written notice of a proposed receipt of Equity Proceeds by the Company or any of its Subsidiaries. (c) The premium to be paid on the principal amount of any prepayment shall be as follows: Payment Date Principal Premiums ------------ ------------------ Closing Date through the one year anniversary of the No Premium-100% of the principal amount of the Note Closing Date 5% Premium-105% of the principal amount of the Note The one year anniversary of the Closing Date through the 15 month anniversary of the Closing Date the 15 month anniversary of the Closing Date through the 2 10% Premium-110% of the principal amount of the Note year anniversary of the Closing Date (d) On the Maturity Date, the unpaid principal balance of the Notes, to the extent not sooner paid or prepaid hereunder, shall be paid in full (such amount to be determined after giving effect to the repayment provisions set forth in clause (a) above), together with accrued interest and fees thereon and all expenses, indemnities and other Obligations payable under the terms of the Notes or this Agreement. (e) The Company shall call Notes for prepayment pursuant to Section 3.1(a) by giving the written notice as called for by Section 3.1(a3.1 (a) to each holder of such Notes, which notice shall specify (i) the date fixed for such prepayment, (ii) the principal amount to be prepaid on such date, and (iii) the amount of accrued interest to be paid or anticipated to be paid on such date. Notice of prepayment having been so given shall be irrevocable, and the aggregate principal amount of the Notes so to be prepaid as specified in such notice, together with interest accrued thereon to such date fixed for prepayment, shall become due and payable on the specified prepayment date.