CASE OF APT, THAT CERTAIN GUARANTY AGREEMENT (PAYMENT), DATED AS
OF MAY 7, 2008, IN FAVOR OF THE ADMINISTRATIVE AGENT, AS AGENT FOR THE LENDERS)
AND AGREES THAT THE TRANSACTIONS CONTEMPLATED BY THIS LETTER AGREEMENT SHALL NOT
IN ANY WAY AFFECT THE VALIDITY AND
4
ENFORCEABILITY OF SUCH GUARANTY OBLIGATIONS OR THE LOAN DOCUMENTS OR THE
APPLICABLE GUARANTY OR REDUCE, IMPAIR OR DISCHARGE THEIR OBLIGATIONS THEREUNDER.
15.
[RESERVED.]
16.
[RESERVED.]
17.
MISCELLANEOUS.
THIS LETTER AGREEMENT SHALL CONSTITUTE PART OF THE
LOAN AGREEMENT FOR PURPOSES OF INDEMNIFICATION AND THE INDEMNIFICATION
PROVISIONS PROVIDED THEREIN SHALL EXTEND TO THIS LETTER AGREEMENT.
THE
PROVISIONS OF THIS PARAGRAPH SHALL NOT LIMIT THE INDEMNIFICATION RIGHTS OF ANY
PARTY UNDER THE LOAN AGREEMENT.
18.
PAYMENT OF COSTS.
THE RESPECTIVE COUNSEL AND ADVISORS TO EACH
LENDER PARTY SHALL CONTINUE TO RECEIVE PAYMENT IN FULL OF ALL INVOICED COSTS,
FEES AND EXPENSES AS AND WHEN REQUIRED PURSUANT TO SECTION 1(E) OF THE INITIAL
EXTENSION AGREEMENT.
19.
DUE AUTHORIZATION, ETC.
EACH OF THE PARTIES HERETO HEREBY
REPRESENTS AND WARRANTS THAT EACH OF THE FOLLOWING STATEMENTS IS TRUE, ACCURATE
AND COMPLETE AS TO SUCH PARTY AS OF THE EFFECTIVE DATE OF THIS LETTER AGREEMENT:
(A)
SUCH PARTY HAS CAREFULLY READ AND FULLY UNDERSTOOD ALL OF THE
TERMS AND CONDITIONS OF THIS LETTER AGREEMENT;
(B)
SUCH PARTY HAS CONSULTED WITH, OR HAD A FULL AND FAIR OPPORTUNITY
TO CONSULT WITH, AN ATTORNEY REGARDING THE TERMS AND CONDITIONS OF THIS LETTER
AGREEMENT;
(C)
SUCH PARTY HAS HAD A FULL AND FAIR OPPORTUNITY TO PARTICIPATE IN
THE DRAFTING OF THIS LETTER AGREEMENT;
(D)
SUCH PARTY IS FREELY, VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY
ENTERING INTO THIS LETTER AGREEMENT;
(E)
IN ENTERING INTO THIS LETTER AGREEMENT, SUCH PARTY HAS NOT RELIED
UPON ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT NOT EXPRESSLY SET FORTH
HEREIN AND IN THE LOAN AGREEMENT, THE EXTENSION AGREEMENT AND OTHER DOCUMENTS
DELIVERED IN CONNECTION THEREWITH;
(F)
THIS LETTER AGREEMENT HAS BEEN DULY AUTHORIZED AND VALIDLY
EXECUTED AND DELIVERED BY SUCH PARTY AND CONSTITUTES EACH SUCH PARTY'S LEGAL,
VALID AND BINDING OBLIGATION, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS; AND
(G)
SUCH PARTY IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF ITS JURISDICTION OF FORMATION AND HAS THE FULL POWER
AND LEGAL AUTHORITY TO EXECUTE THIS LETTER AGREEMENT, CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREBY, AND PERFORM ITS OBLIGATIONS HEREUNDER.
20.
CAPACITY.
THE PERSON OR PERSONS SIGNING THE LETTER AGREEMENT ON
BEHALF OF THE BORROWER AND THE GUARANTORS, RESPECTIVELY, IS SIGNING STRICTLY IN
HIS/HER RESPECTIVE CORPORATE CAPACITY AND NOT IN AN INDIVIDUAL CAPACITY.
5
21.
NON-CONTRAVENTION.
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE
SUPER ENTITIES AND THE GUARANTORS, AS APPLICABLE, OF EACH SUCH ENTITY'S
RESPECTIVE OBLIGATIONS UNDER AND IN CONNECTION WITH (A) THE OTHER SEPTEMBER 26
AGREEMENTS AND (B) THE EXTENSION AGREEMENT, IN EACH CASE, AS AMENDED AND/OR
MODIFIED BY THIS LETTER AGREEMENT, WILL NOT (I) CONTRAVENE, RESULT IN ANY BREACH
OF, OR CONSTITUTE A DEFAULT UNDER, OR RESULT IN THE CREATION OF ANY ENCUMBRANCE
IN RESPECT OF ANY PROPERTY OF