FORBEARANCE AGREEMENT, AS APPLICABLE.
SECTION 1.2
AMENDMENT.
Section 2.1 of the Forbearance Agreement is hereby amended by deleting
subsection "(c)" of such section in its entirety and replacing such subsection
with the following:
"(c)
no Revolving Credit Borrowing may be requested after March 31st, 2008;
(or, if the Forbearance Period is extended to April 10, 2008 in accordance with
Section 1.4(b) above, April 4, 2008);"
ARTICLE II
CONDITIONS TO EFFECTIVENESS
SECTION 2.1
CONDITIONS PRECEDENT.
THIS AMENDMENT SHALL BECOME EFFECTIVE
AS OF THE DATE FIRST WRITTEN ABOVE UPON THE SATISFACTION OF EACH OF THE
FOLLOWING CONDITIONS:
(A)
THE FIRST LIEN ADMINISTRATIVE AGENT SHALL HAVE RECEIVED DULY
EXECUTED COUNTERPARTS OF THIS AMENDMENT FROM EACH OF THE BORROWERS, THE
GUARANTORS AND WRITTEN CONFIRMATION OF AGREEMENT TO THE TERMS HEREOF BY THE
REQUIRED LENDERS; AND
(b)
the Second Lien Administrative Agent and the Second Lien Lenders
shall have consented in writing to this Amendment.
ARTICLE III
MISCELLANEOUS
SECTION 3.1
REPRESENTATIONS AND WARRANTIES.
EACH LOAN PARTY HEREBY
REPRESENTS AND WARRANTS TO THE FIRST LIEN ADMINISTRATIVE AGENT AND THE FIRST
LIEN LENDERS THAT (A) EACH LOAN PARTY HAS THE LEGAL POWER AND AUTHORITY TO
EXECUTE AND DELIVER THIS AMENDMENT; (B) THE OFFICERS OF EACH LOAN PARTY
EXECUTING THIS AMENDMENT HAVE BEEN DULY AUTHORIZED TO EXECUTE AND DELIVER THE
SAME AND BIND EACH LOAN PARTY WITH RESPECT TO THE PROVISIONS HEREOF; (C) THE
EXECUTION AND DELIVERY HEREOF BY EACH LOAN PARTY AND THE PERFORMANCE AND
OBSERVANCE BY EACH LOAN PARTY OF THE PROVISIONS HEREOF DO NOT VIOLATE OR
CONFLICT WITH ANY ORGANIZATIONAL DOCUMENT OF ANY LOAN PARTY OR ANY LAW
APPLICABLE TO ANY LOAN PARTY OR RESULT IN A BREACH OF ANY PROVISION OF OR
2
CONSTITUTE A DEFAULT UNDER ANY OTHER AGREEMENT, INSTRUMENT OR DOCUMENT BINDING
UPON OR ENFORCEABLE AGAINST ANY LOAN PARTY; (D) EXCEPT WITH RESPECT TO THE
EXISTING EVENTS OF DEFAULT, NO DEFAULT OR EVENT OF DEFAULT EXISTS UNDER THE
FIRST LIEN CREDIT AGREEMENT, NOR WILL ANY OCCUR IMMEDIATELY AFTER THE EXECUTION
AND DELIVERY OF THIS AMENDMENT OR BY THE PERFORMANCE OR OBSERVANCE OF ANY
PROVISION HEREOF; (E) NO LOAN PARTY IS AWARE OF ANY CLAIM OR OFFSET AGAINST, OR
DEFENSE OR COUNTERCLAIM TO, ANY LOAN PARTY'S OBLIGATIONS OR LIABILITIES UNDER
THE FIRST LIEN CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT; (F) THIS AMENDMENT
AND EACH DOCUMENT EXECUTED BY EACH LOAN PARTY IN CONNECTION HEREWITH CONSTITUTE
VALID AND BINDING OBLIGATIONS OF THE APPLICABLE LOAN PARTY IN EVERY RESPECT,
ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS; AND (G) NO LOAN PARTY HAS RECEIVED A
NOTICE OF DEFAULT OF ANY KIND FROM ANY MATERIAL ACCOUNT DEBTOR OR ANY
COUNTERPARTY TO A MATERIAL CONTRACT AND NO MATERIAL ACCOUNT DEBTOR OR
COUNTERPARTY TO A MATERIAL CONTRACT HAS ASSERTED ANY RIGHT OF SET-OFF, DEDUCTION
OR COUNTERCLAIM WITH RESPECT TO ANY ACCOUNT OR SUCH MATERIAL CONTRACT,
RESPECTIVELY.
SECTION 3.2
RELEASE.
EACH LOAN PARTY HEREBY WAIVES AND RELEASES THE
FIRST LIEN ADMINISTRATIVE AGENT AND THE FIRST LIEN LENDERS AND THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES AND SUBSIDIARIES
(EACH A