VALID AND
BINDING OBLIGATION, ENFORCEABLE AGAINST IT 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)
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THE CREDIT AGREEMENT AND
EACH OTHER LOAN DOCUMENT ARE, AFTER GIVING EFFECT TO THIS AMENDMENT, TRUE AND
CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE FIRST AMENDMENT EFFECTIVE
DATE, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES EXPRESSLY RELATE
TO AN EARLIER DATE, IN WHICH CASE THEY WERE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF SUCH EARLIER DATE.
10
(C)
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING.
SECTION 3.
Conditions of Effectiveness of this Amendment.
This Amendment shall
become effective on the date (the "First Amendment Effective Date") on which:
(A)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED DULY EXECUTED AND DELIVERED
COUNTERPARTS OF THIS AMENDMENT THAT, WHEN TAKEN TOGETHER, BEAR THE SIGNATURES OF
HOLDINGS, THE BORROWER AND THE REQUIRED LENDERS.
(B)
THE BORROWER SHALL HAVE PAID TO THE ADMINISTRATIVE AGENT FOR THE PRO RATA
ACCOUNT OF EACH LENDER THAT HAS EXECUTED AND DELIVERED A SIGNATURE PAGE
(INCLUDING, WITHOUT LIMITATION, BY WAY OF FACSIMILE TO JAMES COOPER AT LATHAM &
WATKINS LLP, FAX NUMBER 212-751-4864) APPROVING THIS AMENDMENT ON OR BEFORE 5
P.M. (NEW YORK TIME) WEDNESDAY, DECEMBER 20, 2006, A FEE IN AN AMOUNT EQUAL TO
0.25% OF THE AGGREGATE COMMITMENTS AND OUTSTANDING TERM LOANS OF SUCH LENDER
UNDER THE CREDIT AGREEMENT, SUCH PAYMENT TO BE MADE ON THE DATE (IF ANY) OF THE
INITIAL BORROWING OF ANY PERMITTED SECOND LIEN INDEBTEDNESS.
(C)
THE BORROWER SHALL HAVE BORROWED PERMITTED SECOND LIEN INDEBTEDNESS IN
ACCORDANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT AND SHALL HAVE
PREPAID AT LEAST $24,685,803.78 IN AGGREGATE PRINCIPAL AMOUNT OF TERM LOANS
UNDER THE CREDIT AGREEMENT.
(D)
THE BORROWER SHALL HAVE PAID TO THE ADMINISTRATIVE AGENT ALL OUTSTANDING
FEES, COSTS AND EXPENSES OWING TO THE ADMINISTRATIVE AGENT AS OF SUCH DATE,
INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF LATHAM &
WATKINS LLP, COUNSEL FOR THE ADMINISTRATIVE AGENT.
SECTION 4.
Effect of Amendment.
(a)
Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of or otherwise affect the rights and remedies of the Lenders, the
Administrative Agent or the Collateral Agent under the Credit Agreement or any
other Loan Document, and shall not alter, modify, amend or in any way affect any
of the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other provision of the Credit Agreement or of any other
Loan Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
Nothing herein shall be deemed to entitle
Holdings or the Borrower to a consent to, or a waiver, amendment, modification
or other change of, any