CONDITIONS SET FORTH IN CLAUSES (A)-(D) OF
SECTION 4.02 OF THE RESTATED CREDIT AGREEMENT SHALL BE SATISFIED AS OF THE
RESTATEMENT EFFECTIVE DATE (AS THOUGH (I) A BORROWING WERE BEING MADE ON THE
RESTATEMENT EFFECTIVE DATE, (II) IN ARTICLE III OF THE RESTATED CREDIT
AGREEMENT, THE TERM "CLOSING DATE" REFERS TO THE "RESTATEMENT EFFECTIVE DATE"
AND (III) IN SECTION 3.04 OF THE RESTATED CREDIT AGREEMENT, "FISCAL YEARS ENDED
DECEMBER 31, 2005, 2004 AND 2003" REFERS TO "FISCAL YEARS ENDED DECEMBER 31,
2009, 2008 AND 2007") AND THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A
CERTIFICATE, DATED THE RESTATEMENT EFFECTIVE DATE AND SIGNED BY THE PRESIDENT, A
VICE PRESIDENT OR A FINANCIAL OFFICER OF THE BORROWER, CONFIRMING SATISFACTION
OF THE CONDITION IN THIS PARAGRAPH.
(G)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED (I) ALL FEES AND
OTHER AMOUNTS DUE AND PAYABLE IN CONNECTION WITH THIS AGREEMENT AND THE EXISTING
CREDIT AGREEMENT ON OR PRIOR TO THE RESTATEMENT EFFECTIVE DATE, INCLUDING, TO
THE EXTENT INVOICED IN WRITING AT LEAST ONE BUSINESS DAY PRIOR TO THE
RESTATEMENT EFFECTIVE DATE, REIMBURSEMENT OR PAYMENT OF ALL OUT-OF-POCKET
EXPENSES (INCLUDING FEES, CHARGES AND DISBURSEMENTS OF COUNSEL) REQUIRED TO BE
5
REIMBURSED OR PAID BY ANY LOAN PARTY HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT,
(II) ALL ACCRUED AND UNPAID INTEREST UNDER THE EXISTING CREDIT AGREEMENT IN
RESPECT OF THE LOANS AND ALL ACCRUED AND UNPAID FEES UNDER PARAGRAPH (A) AND
CLAUSE (I) OF PARAGRAPH (C) OF SECTION 2.15 OF THE EXISTING CREDIT AGREEMENT AND
(III) ANY PREPAYMENT REQUIRED BY SECTION 4(E) HEREOF.
IF ANY LC DISBURSEMENTS
ARE OUTSTANDING AS OF THE RESTATEMENT EFFECTIVE DATE, SUCH LC DISBURSEMENTS
SHALL BE REPAID, TOGETHER WITH ANY INTEREST ACCRUED THEREON.
(H)
AFTER GIVING EFFECT TO THE RESTATEMENT TRANSACTIONS, THE COMPANY
AND THE GUARANTORS SHALL BE IN COMPLIANCE WITH THE REQUIREMENTS OF SECTIONS
5.11, 5.12 AND 5.13 OF THE RESTATED CREDIT AGREEMENT, AND IN CONNECTION
THEREWITH, THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED ANY RELATED
DOCUMENTATION THAT THE ADMINISTRATIVE AGENT OR ITS COUNSEL REASONABLY REQUESTS
IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT AND
ITS COUNSEL.
The Administrative Agent shall notify the Borrower and the Lenders of the
Restatement Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the consummation of the amendment and restatement
of the Existing Credit Agreement shall not become effective unless each of the
foregoing conditions is satisfied or waived at or prior to 5:00 p.m., New York
City time, on March 31, 2010 (and, in the event such conditions are not so
satisfied or waived, the Existing Credit Agreement shall remain in effect
without giving effect to any provisions of this Agreement).
SECTION 7.
EFFECTIVENESS; COUNTERPARTS; AMENDMENTS.
THIS AGREEMENT SHALL
BECOME EFFECTIVE WHEN COPIES HEREOF WHICH, WHEN TAKEN TOGETHER, BEAR THE
SIGNATURES OF THE BORROWER, THE SUBSIDIARY LOAN PARTIES, THE ADMINISTRATIVE
AGENT, THE SWINGLINE LENDER AND THE RESTATEMENT LENDERS SHALL HAVE BEEN RECEIVED
BY THE ADMINISTRATIVE AGENT.
THIS AGREEMENT MAY NOT BE AMENDED NOR MAY ANY
PROVISION HEREOF BE WAIVED EXCEPT PURSUANT