3.1
TEMPORARY WAIVER PERIOD.
SUBJECT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT, THE LENDERS PARTY HERETO AGREE TO TEMPORARILY WAIVE THE
SCHEDULED DEFAULTS DURING THE PERIOD FROM AND INCLUDING THE EFFECTIVE DATE UNTIL
THE EARLIEST TO OCCUR OF (THE DATE OF SUCH OCCURRENCE, THE "TEMPORARY WAIVER
TERMINATION DATE"; AND SUCH PERIOD, THE "TEMPORARY WAIVER PERIOD") (A) 5:00 P.M.
(NEW YORK CITY TIME) ON AUGUST 15, 2009, (B) THE OCCURRENCE AND CONTINUANCE OF
AN EVENT OF DEFAULT THAT IS NOT A SCHEDULED DEFAULT, (C) THE PAYMENT OF THE
INTEREST PAYMENT DUE AND OWING ON AUGUST 1, 2009 TO THE HOLDERS UNDER THE U.S.
BORROWER'S 81⁄2% SENIOR SUBORDINATED NOTES DUE 2015, (D) ANY REPRESENTATION
2
OR WARRANTY MADE BY ANY LOAN PARTY IN THIS AGREEMENT PROVING TO HAVE BEEN
UNTRUE, INACCURATE OR INCOMPLETE IN ANY MATERIAL RESPECT ON OR AS OF THE DATE
MADE OR DEEMED MADE, (E) FAILURE OF ANY LOAN PARTY TO PERFORM, AS AND WHEN
REQUIRED, ANY OF THEIR RESPECTIVE COVENANTS OR OTHER OBLIGATIONS SET FORTH IN
THIS AGREEMENT (IT BEING UNDERSTOOD THAT TIME IS OF THE ESSENCE FOR EACH SUCH
COVENANT AND OBLIGATION), INCLUDING WITHOUT LIMITATION, ANY PROVISION OF
SECTION 4 BELOW, AND (F) ANY LOAN PARTY SHALL TAKE ANY ACTION TO CHALLENGE
(INCLUDING WITHOUT LIMITATION, TO ASSERT IN WRITING ANY CHALLENGE TO) THE
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
PROVISION HEREOF OR THEREOF.
3.2
NO WAIVER; LIMITATION ON TEMPORARY WAIVER.
EACH LOAN PARTY
ACKNOWLEDGES AND AGREES THAT THE LENDERS ARE ONLY AGREEING TO TEMPORARILY WAIVE
THE SCHEDULED DEFAULTS DURING THE TEMPORARY WAIVER PERIOD, AND AFTER THE
TEMPORARY WAIVER TERMINATION DATE, IF THE SCHEDULED DEFAULTS HAVE OCCURRED AND
ARE CONTINUING, THE TEMPORARY WAIVER PROVIDED HEREIN SHALL TERMINATE AND AS A
RESULT, (A) THE WAIVER IN THIS AGREEMENT SHALL NO LONGER CONSTITUTE A WAIVER OF
THE OCCURRENCE OR THE CONTINUANCE OF ANY EVENT OF DEFAULT WHICH IS A SCHEDULED
DEFAULT, AND EACH SUCH EVENT OF DEFAULT THAT OCCURS SHALL, AFTER IT OCCURS,
CONTINUE TO EXIST AFTER THE TEMPORARY WAIVER TERMINATION DATE AND (B) NOTHING
CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED TO LIMIT OR AFFECT THE RIGHT OF
THE ADMINISTRATIVE AGENT AND THE LENDERS TO BRING OR MAINTAIN DURING THE
TEMPORARY WAIVER PERIOD ANY ACTION TO ENFORCE OR INTERPRET ANY TERM OR PROVISION
OF THIS AGREEMENT, OR TO FILE OR RECORD INSTRUMENTS OF PUBLIC RECORD (OR TAKE
OTHER ACTION) TO PERFECT OR FURTHER PROTECT THE PERFECTION AND/OR PRIORITY OF
THE LIENS AND SECURITY INTERESTS GRANTED BY THE LOAN PARTIES TO THE
ADMINISTRATIVE AGENT AND THE LENDERS.
FOR THE AVOIDANCE OF DOUBT, DURING THE
TEMPORARY WAIVER PERIOD, THE LOAN PARTIES AND THEIR SUBSIDIARIES MAY NOT TAKE
ANY ACTION THAT WOULD BE PROHIBITED UNDER ANY LOAN DOCUMENT DURING THE
OCCURRENCE OF A DEFAULT OR EVENT OF DEFAULT.
3.3
ENFORCEMENT ACTIONS AFTER TEMPORARY WAIVER PERIOD.
EACH LOAN
PARTY ACKNOWLEDGES AND AGREES THAT, ON THE TEMPORARY WAIVER TERMINATION DATE,
THE AGREEMENT OF THE LENDERS TO TEMPORARILY WAIVE THE SCHEDULED DEFAULTS SHALL
CEASE AND BE