SHARES UNDER AGREEMENT IN
ADVANCES.
NOTWITHSTANDING THE PROVISIONS OF ARTICLE II OF THE AGREEMENT, THE
PROPORTIONATE OR PRO RATA SHARES OF THE INVESTORS SHALL BE REALLOCATED EFFECTIVE
AS OF THE EFFECTIVE DATE IN THE PERCENTAGES SET FORTH ON THE SIGNATURE PAGES OF
THIS AMENDMENT AGREEMENT ("PRO RATA SHARE").
IN FURTHERANCE THEREOF, ON THE
EFFECTIVE DATE, FALCON AGREES TO TRANSFER TO EACH OF CAFCO AND VARIABLE,
PRINCIPAL OF ADVANCES IN AN AMOUNT SUFFICIENT SUCH THAT, AFTER GIVING EFFECT TO
SUCH TRANSFER, THE PRINCIPAL OF ADVANCES OWNED BY EACH OF FALCON, CAFCO AND
VARIABLE WILL BE EQUAL TO THEIR RESPECTIVE PRO RATA SHARES OF THE FACILITY
PRINCIPAL, AND EACH OF CAFCO AND VARIABLE AGREE TO MAKE A CASH PAYMENT TO FALCON
IN CONSIDERATION OF SUCH TRANSFER, IN AN AMOUNT EQUAL TO THE PRINCIPAL OF THE
ADVANCES TRANSFERRED TO EACH OF THEM.
EACH OF THE INVESTORS EXPRESSLY CONSENTS
TO SUCH REALLOCATION AND WAIVES COMPLIANCE WITH THE NOTICE REQUIREMENT SET FORTH
IN THE FIRST SENTENCE OF SECTION 2.02(A) OF THE AGREEMENT.
THE PARTIES FURTHER
AGREE THAT ANY NON-COMPLIANCE WITH THE PROVISIONS OF THE AGREEMENT BY VIRTUE OF
THE REALLOCATION SET FORTH ABOVE SHALL BE DEEMED NOT TO CONSTITUTE A BREACH OR
DEFAULT BY THE BORROWER UNDER THE AGREEMENT, AND THAT SUCH REALLOCATION SHALL BE
DEEMED TO BE PERMISSIBLE AND EFFECTIVE IN ALL RESPECTS AND FOR ALL PURPOSES
UNDER THE AGREEMENT.
4
SECTION 4.
WAIVER.
BY VIRTUE OF THEIR EXECUTION AND DELIVERY OF THIS
AMENDMENT AGREEMENT, EACH OF THE INVESTORS, THE BANKS, THE INVESTOR AGENTS, THE
PROGRAM AGENT AND EACH RELEVANT PARTY UNDER THE PURCHASE AGREEMENTS HEREBY
WAIVES ANY BREACH OF THE RELEVANT AGREEMENT ARISING OUT OF OR RELATING TO THE
INCLUSION OF RECEIVABLES OR PARTICIPATED RECEIVABLES (OR THE EQUIVALENT TERMS
UNDER THE PURCHASE AGREEMENTS) ORIGINATED BY THE ADDITIONAL ORIGINATORS (AS
DEFINED IN AMENDMENT NO. 6 TO THE AGREEMENT DATED AS OF AUGUST 31, 2007) IN ANY
BORROWER REPORT, DAILY REPORT, DETERMINATION DATE CERTIFICATE OR EQUIVALENT
REPORT UNDER THE PURCHASE AGREEMENTS DELIVERED BY THE COLLECTION AGENT AND/OR
THE BORROWER ON AND AFTER JUNE 4, 2007 AND PRIOR TO THE DATE OF THIS AMENDMENT
AGREEMENT.
THE FOREGOING WAIVER SHALL NOT BE DEEMED TO CONSTITUTE A WAIVER OF
ANY OTHER EVENT OR CONDITION THAT MAY CONSTITUTE AN EVENT OF TERMINATION OR
INCIPIENT EVENT OF TERMINATION WHICH MAY NOW OR HEREAFTER EXIST UNDER THE
AGREEMENT.
SECTION 5.
REPRESENTATIONS AND WARRANTIES.
EACH OF THE BORROWER AND
THE COLLECTION AGENT REPRESENTS AND WARRANTS THAT EACH OF THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN SECTION 4.01 AND SECTION 4.02, RESPECTIVELY, OF THE
AGREEMENT (AFTER GIVING EFFECT TO THIS AMENDMENT AGREEMENT) ARE CORRECT IN ALL
MATERIAL RESPECTS ON AND AS OF THE DATE OF THIS AMENDMENT AGREEMENT AS THOUGH
MADE ON AND AS OF SUCH DATE.
SECTION 6.
CONFIRMATION OF AGREEMENT.
EACH REFERENCE IN THE AGREEMENT
TO "THIS AGREEMENT" OR "THE AGREEMENT" SHALL MEAN THE AGREEMENT AS AMENDED BY
THIS AMENDMENT AGREEMENT, AND AS HEREAFTER AMENDED OR RESTATED.
EXCEPT AS
HEREIN EXPRESSLY AMENDED, THE AGREEMENT IS RATIFIED AND CONFIRMED IN ALL
RESPECTS