AMENDMENT, FROM THE CHIEF FINANCIAL OFFICER OF THE
BORROWER;
(IV)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED AN OPINION FROM
ROPES & GRAY LLP, COUNSEL TO THE LOAN PARTIES, IN A FORM AND SUBSTANCE
REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT;
(V)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED FOR THE ACCOUNT OF
EACH OF THE LENDERS THAT HAVE REQUESTED SAME NOT LATER THAN THE CONSENT DEADLINE
(AS DEFINED BELOW) AN APPROPRIATE NOTE EXECUTED BY THE BORROWER, IN EACH CASE IN
THE AMOUNT, MATURITY AND OTHERWISE AS PROVIDED IN THE CREDIT AGREEMENT (AS
MODIFIED HEREBY);
(VI)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED (A) COPIES OF
RESOLUTIONS OF THE BOARD OF DIRECTORS OF EACH LOAN PARTY APPROVING AND
AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS FOURTH AMENDMENT AND
THE LOAN DOCUMENTS AS AMENDED BY THIS FOURTH AMENDMENT, CERTIFIED AS OF THE
FOURTH AMENDMENT EFFECTIVE DATE BY A RESPONSIBLE OFFICER, SECRETARY OR
ASSISTANCE SECRETARY OF EACH SUCH LOAN PARTY AS BEING IN FULL FORCE AND EFFECT
WITHOUT MODIFICATION OR AMENDMENT AND (B) GOOD STANDING CERTIFICATES FOR EACH
LOAN PARTY FROM EACH JURISDICTION IN WHICH SUCH LOAN PARTY IS ORGANIZED;
(VII)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED AN ACKNOWLEDGEMENT
FROM THE ABL COLLATERAL AGENT AS CONTEMPLATED BY SECTION 5.2(C) OF THE
INTERCREDITOR AGREEMENT, IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE
ADMINISTRATIVE AGENT;
(VIII)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED PAYMENT FROM THE
BORROWER, FOR THE ACCOUNT OF EACH LENDER THAT EXECUTES AND DELIVERS A
COUNTERPART SIGNATURE PAGE TO THIS FOURTH AMENDMENT (WHETHER OR NOT SUCH LENDER
IS AN EXTENDING B-2 TERM LENDER) PRIOR TO 5:00 P. M., NEW YORK CITY TIME, ON
OCTOBER 28, 2009 (THE "CONSENT DEADLINE"), A NON-REFUNDABLE CONSENT FEE PAYABLE
IN DOLLARS (EACH, A "CONSENT FEE") IN AN AGGREGATE AMOUNT EQUAL TO 0.05% OF THE
AGGREGATE PRINCIPAL AMOUNT OF THE OUTSTANDING LOANS OF SUCH LENDER AS OF THE
CONSENT DEADLINE; AND
(IX)
THE BORROWER SHALL HAVE PAID ALL FEES AND OTHER AMOUNTS DUE AND
PAYABLE PURSUANT TO THE LOAN DOCUMENTS AND ANY OTHER FEE DUE AND PAYABLE TO A
LENDER AS MAY BE SEPARATELY AGREED BY THE BORROWER AND SUCH LENDER IN CONNECTION
WITH THIS FOURTH AMENDMENT, INCLUDING, TO THE EXTENT INVOICED, REIMBURSEMENT OR
PAYMENT OF REASONABLE OUT-OF-POCKET EXPENSES IN CONNECTION WITH THIS FOURTH
AMENDMENT AND THE TRANSACTIONS
21
CONTEMPLATED HEREBY AND ANY OTHER REASONABLE OUT-OF-POCKET EXPENSES OF THE
ADMINISTRATIVE AGENT REQUIRED TO BE PAID OR REIMBURSED PURSUANT TO THE CREDIT
AGREEMENT, INCLUDING THE REASONABLE FEES, CHARGES AND DISBURSEMENTS OF COUNSEL
FOR THE ADMINISTRATIVE AGENT.
(b)
The Administrative Agent shall notify the Borrower and the Lenders
of the Fourth Amendment Effective Date.
6.
BY EXECUTING AND DELIVERING A COPY HEREOF, EACH LOAN PARTY HEREBY
(A) CONSENTS TO THE TERMS OF THIS FOURTH AMENDMENT AND THE LOAN DOCUMENTS (AS
AMENDED BY THIS FOURTH AMENDMENT) AND AGREES THAT THE TERMS OF THIS FOURTH
AMENDMENT SHALL NOT AFFECT IN ANY WAY ITS OBLIGATIONS AND LIABILITIES UNDER ANY
LOAN DOCUMENT (AS SUCH LOAN DOCUMENTS ARE AMENDED OR OTHERWISE EXPRESSLY
MODIFIED BY THIS FOURTH AMENDMENT),