Common use of Agreement to Convert Clause in Contracts

Agreement to Convert. (a) Within five (5) Business Days (as defined in the Company LLC Agreement) of the date of this Agreement, the Company shall, pursuant to and in accordance with Section 5.12(b)(ix)(A) of the Company LLC Agreement, mail to the Unitholder a notice of the Series A Change of Control Offer (as defined in the Company LLC Agreement) (the “Notice”). (b) The Unitholder agrees that, as soon as reasonably practicable after receipt from the Company of the Notice, the Unitholder shall notify the Company in writing of, and shall not revoke, its election to have any and all Preferred Units held by the Unitholder converted as of immediately prior to the Effective Time into Conversion Units (as defined in the Company LLC Agreement) as set forth in the Notice and otherwise in accordance with the terms and conditions of Section 5.12(b)(ix) of the Company LLC Agreement such that (i) the 12,897,029 Preferred Units outstanding as of the date hereof shall be converted into an aggregate of 14,186,731 Common Units and (ii) any Preferred Units issued as PIK Units after the date hereof (which PIK Units shall be issued as of the close of business on the record date for the distribution of such PIK Units) shall be converted into a number of Common Units equal to the product of (A) one hundred and ten percent (110%) and (B) the number of Preferred Units so issued as PIK Units. The parties hereto acknowledge and agree that upon the issuance of the Conversion Units to the Unitholder, all rights under the converted Owned Units shall cease and the Unitholder shall be the record holder of the Conversion Units. (c) Notwithstanding the foregoing, the parties hereto agree that if the Merger Agreement is terminated without the consummation of the Merger pursuant to its terms, the election to convert contemplated hereby shall be deemed not to have been made and shall be deemed void ab initio. The Unitholder hereby acknowledges that the transactions contemplated by the Merger Agreement constitute a Series A Change of Control (as defined in the Company LLC Agreement).

Agreement to Convert. Each of the Saratoga Entities shall convert all of its Preferred Stock into Common Stock on the following terms and conditions: (a) Within five (5) Business Days (as defined in The Company shall give the Company LLC Agreement) of Saratoga Entities written notice that it intends to pay the Unpaid Dividends and setting the date of this Agreementpayment (the "Payment Date"), which shall be not less than five business days after the Company shall, pursuant to and in accordance with Section 5.12(b)(ix)(A) date of the Company LLC Agreement, mail to the Unitholder a notice of the Series A Change of Control Offer (as defined notice. Payment shall be wire transfered in the Company LLC Agreement) (the “Notice”)immediately available funds. (b) Simultaneously with the payment of the Unpaid Dividends, each of the Saratoga Entities shall deliver to the Company (i) stock certificates representing all of the Preferred Stock owned by such entity and (ii) a notice of conversion in the form attached to this Agreement as Exhibit B. (c) The Unitholder agrees thatCompany will treat shares of Common Stock received by any of the Saratoga Entities upon conversion of the Preferred Stock and distributed by such Saratoga Entity to its partners or members as transferable by each such partner or member under Rule 144(k) under the Securities Act of 1933, as soon as reasonably practicable after receipt from amended, (the "1933 Act") and the Company shall instruct its transfer agent to issue and deliver to such partner or member stock certificates representing such shares of Common Stock free of any legend or notation relating to restrictions under the 1933 Act, subject to the following terms and conditions: (i) in such distribution of Common Stock to partners or members of the NoticeSaratoga Entities, such partner or member shall have received only its portion of the Unitholder shall notify the Company in writing ofCommon Stock so distributed, and shall not revoke, its election to have any and all Preferred Units held by the Unitholder converted as of immediately prior to the Effective Time into Conversion Units (as defined in the Company LLC Agreement) as set forth in the Notice and otherwise determined in accordance with the terms provisions of governing instrument of the relevant Saratoga Entity, and conditions such partner or member shall not have furnished any consideration in return for such distribution; (ii) such partner or member is not acting in concert with any other partner or member in connection with the sale of Section 5.12(b)(ixsuch shares of Common Stock; (iii) at the time of such distribution or during the 90 days prior thereto, such partner or member shall not have been an "affiliate" of the Company as that term is defined in the rules and regulations under the Act; (iv) such partner or member shall have furnished to the Company a certificate to the effect that the statements contained in subparagraphs (i), (ii) and (iii) above are true and correct; (v) if, in the opinion of the Company, the legal standards governing the resale of securities received in a distribution by a partnership or limited liability company have changed from those currently applicable or if the Company's transfer agent independently requires a legal opinion to issue stock certificates free of a restrictive legend, the Company shall have received an opinion of its legal counsel to the effect that such shares may be sold by such partner or member without restriction. (d) The Company hereby waives the application of Sections 2.1 and 4.1(c) of the Company LLC Shareholders Agreement such that (i) the 12,897,029 Preferred Units outstanding dated December 30, 1999 as of the date hereof shall be converted into an aggregate of 14,186,731 Common Units and (ii) any Preferred Units issued as PIK Units after the date hereof (which PIK Units shall be issued as of the close of business on the record date for to the distribution of such PIK Units) shall be converted into a number of Common Units equal shares by Saratoga Partners IV, L.P. to the product of (A) one hundred and ten percent (110%) and (B) the number of Preferred Units so issued as PIK Units. The parties hereto acknowledge and agree that upon the issuance of the Conversion Units to the Unitholder, all rights under the converted Owned Units shall cease and the Unitholder shall be the record holder of the Conversion Units. (c) Notwithstanding the foregoing, the parties hereto agree that if the Merger Agreement is terminated without the consummation of the Merger pursuant to its terms, the election to convert contemplated hereby shall be deemed not to have been made and shall be deemed void ab initio. The Unitholder hereby acknowledges that the transactions contemplated by the Merger Agreement constitute a Series A Change of Control (as defined in the Company LLC Agreement).Txxxxxx X.X.