RATING (THE DATE OF
ANY SUCH DOWNGRADE UNDER CLAUSE (I) OR (II), THE "DOWNGRADE DATE"), THE BORROWER
SHALL, WITHIN TWO BUSINESS DAYS FOLLOWING SUCH DOWNGRADE DATE, PAY TO THE
ADMINISTRATIVE AGENT, FOR THE ACCOUNT OF EACH CONSENTING LENDER, AN ADDITIONAL
FEE (THE "ADDITIONAL FEES") IN AN AMOUNT EQUAL TO 0.125% OF THE SUM OF (X) THE
AGGREGATE PRINCIPAL AMOUNT OF TERM LOANS OF SUCH CONSENTING LENDER AND (Y) THE
REVOLVING COMMITMENT (WHETHER USE OR UNUSED) OF SUCH CONSENTING LENDER, IN EACH
CASE AS OF THE RESTATEMENT EFFECTIVE DATE; PROVIDED THAT THE BORROWER SHALL HAVE
NO LIABILITY FOR ANY SUCH ADDITIONAL FEES IF THIS AGREEMENT AND THE AMENDED AND
RESTATED CREDIT AGREEMENT DO NOT BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 5
BELOW.
SECTION 5.
CONDITIONS PRECEDENT.
THIS AGREEMENT AND THE RESTATED CREDIT
AGREEMENT SHALL BECOME EFFECTIVE AS OF THE DATE (THE "RESTATEMENT EFFECTIVE
DATE") OF THE SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT:
(A)
THE ADMINISTRATIVE AGENT (OR ITS COUNSEL) SHALL HAVE RECEIVED FROM EACH OF
HOLDINGS AND THE BORROWER AND THE REQUIRED LENDERS EITHER (I) A COUNTERPART OF
THIS AGREEMENT SIGNED ON BEHALF OF SUCH PARTY OR (II) WRITTEN EVIDENCE
SATISFACTORY TO THE ADMINISTRATIVE AGENT (WHICH MAY INCLUDE TELECOPY OR OTHER
ELECTRONIC TRANSMISSION OF A SIGNED SIGNATURE PAGE OF THIS AGREEMENT) THAT SUCH
PARTY HAS SIGNED A COUNTERPART OF THIS AGREEMENT.
(B)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED ALL FEES AND OTHER AMOUNTS DUE
AND PAYABLE HEREUNDER OR UNDER THE EXISTING CREDIT AGREEMENT ON OR PRIOR TO THE
RESTATEMENT EFFECTIVE DATE, INCLUDING THE AMENDMENT FEES AND, TO THE EXTENT
INVOICED, REIMBURSEMENT OR PAYMENT OF ALL REASONABLE OUT-OF-POCKET EXPENSES
(INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES, CHARGES AND DISBURSEMENTS
OF CRAVATH, SWAINE & MOORE LLP, COUNSEL FOR THE ADMINISTRATIVE AGENT) REQUIRED
TO BE REIMBURSED OR PAID BY THE BORROWER HEREUNDER OR UNDER ANY OTHER LOAN
DOCUMENT.
SECTION 6.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 7.
WAIVERS OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL
3
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR FOR ANY COUNTERCLAIM THEREIN.
SECTION 8.
NO NOVATION. NEITHER THIS AGREEMENT NOR THE EFFECTIVENESS OF THE
RESTATED CREDIT AGREEMENT SHALL EXTINGUISH THE OBLIGATIONS FOR THE PAYMENT OF
MONEY OUTSTANDING UNDER THE EXISTING CREDIT AGREEMENT OR DISCHARGE OR RELEASE
THE LIEN OR PRIORITY OF ANY LOAN DOCUMENT OR ANY OTHER SECURITY THEREFOR OR ANY
GUARANTEE THEREOF, AND THE LIENS AND SECURITY INTERESTS IN FAVOR OF THE
ADMINISTRATIVE AGENT FOR THE BENEFIT OF THE SECURED PARTIES SECURING PAYMENT OF
THE OBLIGATIONS ARE IN ALL RESPECTS CONTINUING AND IN FULL FORCE AND EFFECT WITH
RESPECT TO ALL OBLIGATIONS.
NOTHING HEREIN CONTAINED SHALL BE CONSTRUED AS A
SUBSTITUTION OR NOVATION, OR A PAYMENT AND REBORROWING, OR A TERMINATION, OF THE
OBLIGATIONS OUTSTANDING UNDER THE EXISTING CREDIT AGREEMENT OR