AND WITHOUT THE NEED FOR ANY FURTHER
ACTION BY OR ON THE PART OF THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY LOAN
PARTY AND NOTWITHSTANDING THE OCCURRENCE OF ANY EVENT OF DEFAULT UNDER
SECTION 7.01 OF THE CREDIT AGREEMENT WITH RESPECT TO ANY LOAN PARTY, THE U.S.
BORROWER OR THE APPLICABLE LOAN PARTY SHALL BE OBLIGED TO COMPLY WITH THE TERMS
OF SUCH ADDITIONAL RESTRICTION AS IF IT HAD BEEN DULY INCORPORATED AS AN
OBLIGATION IN THE LOAN DOCUMENTS.
SECTION 5.
Conditions Precedent.
This Agreement shall become effective as of the date first set forth above (the
"Fourth Waiver Effective Date") following the date on which all of the following
conditions have been satisfied or waived:
(A)
EXECUTION AND DELIVERY.
THE BORROWERS, EACH OTHER LOAN PARTY AND
LENDERS CONSTITUTING THE MAJORITY LENDERS SHALL HAVE DULY EXECUTED COUNTERPARTS
OF THIS AGREEMENT (WHETHER THE SAME OR DIFFERENT COUNTERPARTS) AND SHALL HAVE
DELIVERED (INCLUDING BY WAY OF FACSIMILE OR OTHER ELECTRONIC (I.E., "PDF")
TRANSMISSION) THE SAME TO
8
WHITE & CASE LLP, 1155 AVENUE OF THE AMERICAS, NEW YORK, NY 10036, ATTENTION: PO
SAIDI (FACSIMILE NUMBER: 212-354-8113 / E-MAIL ADDRESS: PSAIDI@WHITECASE.COM) BY
3:00 P.M., NEW YORK CITY TIME, ON WEDNESDAY, SEPTEMBER 30, 2009.
(B)
NO DEFAULT.
AFTER GIVING EFFECT TO THIS AGREEMENT, THERE SHALL BE
NO DEFAULT OR EVENT OF DEFAULT.
(C)
FEES AND EXPENSES.
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
ALL INVOICED FEES AND ACCRUED EXPENSES OF THE ADMINISTRATIVE AGENT AND THE
STEERING COMMITTEE REQUIRED TO BE PAID BY THE BORROWERS, INCLUDING, WITHOUT
LIMITATION, THE REASONABLE FEES AND EXPENSES OF LEGAL COUNSEL TO THE
ADMINISTRATIVE AGENT AND THE STEERING COMMITTEE AND THE REASONABLE FEES AND
EXPENSES OF ANY FINANCIAL ADVISER APPOINTED AND RETAINED UNDER SECTION 4.1
(FINANCIAL ADVISOR).
(D)
SENIOR SUBORDINATED NOTES FORBEARANCE.
THE HOLDERS OF THE SENIOR
SUBORDINATED NOTES (I) SHALL HAVE WAIVED THE REQUIREMENTS OF SECTION 4.1 OF THE
SENIOR SUBORDINATED NOTES FORBEARANCE OR SHALL HAVE EXTENDED THE DEADLINE FOR
SUCH REQUIREMENTS TO 5:00 P.M., NEW YORK CITY TIME, ON OCTOBER 5, 2009, AND SUCH
WAIVER OR EXTENSION SHALL BE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE ADMINISTRATIVE AGENT AND THE STEERING COMMITTEE AND (II) SHALL HAVE EXTENDED
THE "FORBEARANCE TERMINATION DATE" AS SUCH TERM IS DEFINED IN THE SENIOR
SUBORDINATED NOTES FORBEARANCE TO 5.00 P.M. NEW YORK CITY TIME, ON OCTOBER 5,
2009.
SECTION 6.
Representations and Warranties.
In order to induce the Lenders to enter into this Agreement, the Borrowers and
the other Loan Parties hereby represent and warrant to the Lenders that:
(A)
THIS AGREEMENT HAS BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION OF
SUCH ENTITY, DULY EXECUTED AND DELIVERED BY SUCH ENTITY AND CONSTITUTES A LEGAL,
VALID AND BINDING OBLIGATION OF THE BORROWERS AND EACH LOAN PARTY, AS
APPLICABLE, ENFORCEABLE AGAINST EACH SUCH ENTITY RESPECTIVELY IN ACCORDANCE WITH
ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND SUBJECT TO
GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER CONSIDERED IN A PROCEEDING
IN EQUITY OR AT LAW;
(B)