ANY OF THEIR AFFILIATES
AND RELATED FUNDS, ANY OF THE RATING AGENCIES, OR ANY PARTY PROVIDING CREDIT
SUPPORT OR OTHERWISE PARTICIPATING IN THE SECURITIZATION (COLLECTIVELY, THE
"SECURITIZATION PARTIES") FOR ANY LOSSES, CLAIMS, DAMAGES OR LIABILITIES (THE
"SECURITIZATION LIABILITIES") TO WHICH SUCH LENDERS OR ANY OF THEIR AFFILIATES
OR RELATED FUNDS, OR SUCH SECURITIZATION PARTIES, MAY BECOME SUBJECT INSOFAR AS
THE SECURITIZATION LIABILITIES ARISE OUT OF OR ARE BASED UPON A BREACH OF THE
REPRESENTATION AND WARRANTY CONTAINED IN SECTION 5.19, AND (II) AGREEING TO
REIMBURSE SUCH LENDERS AND THEIR AFFILIATES AND RELATED FUNDS FOR ANY REASONABLE
LEGAL OR OTHER EXPENSES REASONABLY INCURRED BY SUCH PERSONS IN CONNECTION WITH
DEFENDING THE SECURITIZATION LIABILITIES."
(Q)
SECTION 3.4 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY DELETING
THE DATE "APRIL 14, 2009" APPEARING THEREIN AND INSERTING IN LIEU THEREOF THE
DATE "APRIL 14, 2010".
8
(R)
SECTION 3.6 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY DELETING
THE LAST SENTENCE THEREOF IN ITS ENTIRETY AND SUBSTITUTING THE FOLLOWING
THEREFORE:
"The foregoing to the contrary notwithstanding, in the event that Borrower
repays the Obligations in full and terminates this Agreement pursuant to the
first sentence of this Section 3.6 and if (a) such repayment occurs with the
proceeds of a refinancing provided by Wells Fargo or WFF or (b) such repayment
occurs after the third anniversary of the Closing Date and occurs with the
proceeds of (i) Parent's or Borrower's consummation of an underwritten public
equity offering, or (ii) the sale (by merger or otherwise) of all or
substantially all of the Stock of Borrower or all or substantially all of
Borrower's and its Subsidiaries' assets (other than in connection with a
bankruptcy proceeding), in one or a series of related transactions, then the
Applicable Prepayment Premium shall be zero ($0)."
(S)
ARTICLE 5 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY ADDING AT THE
END THEREOF THE FOLLOWING AS NEW SECTION 5.26 AS FOLLOWS:
"5.26
Taxes. Parent, Borrower, and each Person which has tax liabilities
for which Parent and Borrower are liable (each, a "Tax Party") have filed, or
caused to be filed, and will continue to file in a timely manner all federal,
state and other material tax returns and reports required to be filed, and have
paid, and will continue to pay, all federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable. All information in
such tax returns, reports and declarations is complete and accurate in all
material respects. Each Tax Party has paid or caused to be paid all taxes due
and payable or claimed due and payable in any assessment received by it, and has
collected, deposited and remitted in accordance with all applicable laws, all
sales, use and similar taxes applicable to the conduct of its business, except,
in each case, to the extent that the validity of such assessment or tax is the
subject of a Permitted Protest.