STEERING COMMITTEE, ON THURSDAY (OR THE IMMEDIATELY SUCCEEDING BUSINESS DAY
IF THURSDAY IS NOT A BUSINESS DAY) OF EVERY OTHER WEEK (COMMENCING WITH
THURSDAY, JULY 9, 2009) DURING THE TEMPORARY WAIVER PERIOD, THE U.S. BORROWER
SHALL PROVIDE THE ADMINISTRATIVE AGENT, THE STEERING COMMITTEE AND THEIR
RESPECTIVE ADVISORS WITH AN UPDATE (VIA A MEETING OR CONFERENCE CALL WITH THE
U.S. BORROWER'S MANAGEMENT AND ITS ADVISORS) ON THE WEEKLY FLASH INFORMATION
PROVIDED TO THE BOARD OF DIRECTORS, THE
4
ONGOING FINANCIAL PERFORMANCE, OPERATIONS AND LIQUIDITY OF THE U.S. BORROWER AND
ITS SUBSIDIARIES AND THE PROGRESS TOWARD A PROPOSAL FOR AN AMENDMENT TO OR
RESTRUCTURING OF THE OBLIGATIONS UNDER THE CREDIT AGREEMENT AND THE SENIOR
SUBORDINATED NOTES.
4.6
ADDITIONAL INTEREST; FEES.
FOR EACH DAY DURING THE TEMPORARY
WAIVER PERIOD, THE ADVANCES AND ALL OUTSTANDING OBLIGATIONS SHALL ACCRUE
INTEREST AT A RATE PER ANNUM EQUAL TO 2% PLUS THE RATE OTHERWISE APPLICABLE TO
SUCH ADVANCES PURSUANT TO SECTION 2.07 OF THE CREDIT AGREEMENT, AND SUCH
ADDITIONAL INTEREST SHALL BE PAID MONTHLY IN ARREARS ON THE LAST BUSINESS DAY OF
EACH CALENDAR MONTH DURING THE TEMPORARY WAIVER PERIOD AND ON THE TEMPORARY
WAIVER TERMINATION DATE.
4.7
ACTIVITY DURING TEMPORARY WAIVER PERIOD.
THE U.S. BORROWER SHALL
NOT, AND SHALL NOT PERMIT ANY OF ITS SUBSIDIARIES TO, (A) INCUR ANY INDEBTEDNESS
UNDER SECTION 5.02(B)(III)(A) OR 5.02(B)(III)(I) OF THE CREDIT AGREEMENT, OTHER
THAN PIK ADVANCES, LETTERS OF CREDIT ISSUED, IN THE SOLE DISCRETION OF THE
ISSUING BANK, AT THE REQUEST OF THE U.S. BORROWER FOR THE PURPOSE OF EXTENDING
OR REPLACING LETTERS OF CREDIT IN THE ORDINARY COURSE, AND UP TO $500,000 OF
LETTER OF CREDIT ADVANCES RESULTING FROM DRAWS UNDER LETTERS OF CREDIT THAT ARE
EXPIRING,(B) MAKE ANY INVESTMENTS UNDER SECTION 5.02(E)(XIII) OF THE CREDIT
AGREEMENT OR (C) SELL OR OTHERWISE DISPOSE OF ANY ASSETS UNDER
SECTION 5.02(D)(II) OF THE CREDIT AGREEMENT.
IN ADDITION, DURING THE TEMPORARY
WAIVER PERIOD, NO BORROWER SHALL REQUEST, OR SEEK TO ENFORCE, THE FUNDING OF ANY
ADVANCES BY ANY DEFAULTING LENDER OR ANY SUCCESSOR OR ASSIGNEE THEREOF.
FURTHERMORE, DURING THE TEMPORARY WAIVER PERIOD, THE U.S. BORROWER AND ITS
SUBSIDIARIES MAY NOT TAKE ANY ACTION, EXCEPT THE INCURRENCE OF INDEBTEDNESS
PERMITTED BY CLAUSE (A) ABOVE, THAT WOULD BE PROHIBITED BY THE TERMS OF THE
CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT AT ANY TIME WHILE AN EVENT OF
DEFAULT IS IN EXISTENCE.
4.8
FAS 159.
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN OR
IN ANY OTHER LOAN DOCUMENT, ALL TERMS OF AN ACCOUNTING OR FINANCIAL NATURE USED
HEREIN OR IN ANY OTHER LOAN DOCUMENT SHALL BE CONSTRUED, AND ALL COMPUTATIONS OF
AMOUNTS AND RATIOS REFERRED TO HEREIN OR IN ANY OTHER LOAN DOCUMENT SHALL BE
MADE AT ALL TIMES HEREAFTER, WITHOUT GIVING EFFECT TO ANY ELECTION UNDER
STATEMENT OF FINANCIAL ACCOUNTING STANDARDS 159 (OR ANY OTHER FINANCIAL
ACCOUNTING STANDARD HAVING A SIMILAR RESULT OR EFFECT) TO VALUE ANY INDEBTEDNESS
OR OTHER LIABILITIES OF
ANY LOAN PARTY OR ANY SUBSIDIARY OF ANY LOAN PARTY AT
"FAIR VALUE", AS DEFINED THEREIN.
4.9
MILESTONES.
THE U.S.