TERMS, SUBJECT TO THE EFFECTS OF BANKRUPTCY,
INSOLVENCY,
27
FRAUDULENT CONVEYANCE, REORGANIZATION AND OTHER SIMILAR LAWS RELATING TO OR
AFFECTING CREDITORS' RIGHTS GENERALLY AND GENERAL PRINCIPLES OF EQUITY (WHETHER
CONSIDERED IN A PROCEEDING IN EQUITY OR LAW).
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY EACH CREDIT PARTY OF
THIS AMENDMENT, WILL NOT (A) CONTRAVENE ANY APPLICABLE PROVISION OF ANY MATERIAL
LAW, STATUTE, RULE, REGULATION, ORDER, WRIT, INJUNCTION OR DECREE OF ANY COURT
OR GOVERNMENTAL INSTRUMENTALITY, (B) RESULT IN ANY BREACH OF ANY OF THE TERMS,
COVENANTS, CONDITIONS OR PROVISIONS OF, OR CONSTITUTE A DEFAULT UNDER, OR RESULT
IN THE CREATION OR IMPOSITION OF (OR THE OBLIGATION TO CREATE OR IMPOSE) ANY
LIEN UPON ANY OF THE PROPERTY OR ASSETS OF ANY OF THE BORROWER OR ANY OF THE
RESTRICTED SUBSIDIARIES PURSUANT TO THE TERMS OF ANY MATERIAL INDENTURE, LOAN
AGREEMENT, LEASE AGREEMENT, MORTGAGE, DEED OF TRUST, AGREEMENT OR OTHER MATERIAL
INSTRUMENT TO WHICH HOLDINGS, THE BORROWER OR ANY OF THEIR RESTRICTED
SUBSIDIARIES IS A PARTY OR BY WHICH IT OR ANY OF THEIR PROPERTY OR ASSETS IS
BOUND, OR (C) VIOLATE ANY PROVISION OF THE CERTIFICATE OF INCORPORATION, BY-LAWS
OR OTHER CONSTITUTIONAL DOCUMENTS OF HOLDINGS, THE BORROWER OR ANY OF THEIR
RESTRICTED SUBSIDIARY.
(C)
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THE CREDIT
AGREEMENT AND IN THE OTHER CREDIT DOCUMENTS ARE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS WITH THE SAME EFFECT AS IF MADE ON THE DATE HEREOF AND THE DATE OF
EFFECTIVENESS OF THIS AMENDMENT, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND
WARRANTIES EXPRESSLY RELATE TO AN EARLIER DATE, IN WHICH CASE SUCH
REPRESENTATIONS AND WARRANTIES SHALL HAVE BEEN TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF SUCH EARLIER DATE.
(D)
AT THE TIME OF AND AFTER GIVING EFFECT TO THIS AMENDMENT, NO
DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING.
SECTION 3
CONDITIONS TO EFFECTIVENESS OF AMENDMENT.
THIS
AMENDMENT WILL BECOME EFFECTIVE UPON:
(A)
RECEIPT BY THE ADMINISTRATIVE AGENT OF EXECUTED SIGNATURE PAGES TO
THIS AMENDMENT FROM THE REQUIRED LENDERS AND EACH CREDIT PARTY THAT IS PARTY TO
THE CREDIT AGREEMENT;
(B)
PAYMENT BY THE BORROWER OF THE REASONABLE COSTS AND EXPENSES OF
THE ADMINISTRATIVE AGENT IN CONNECTION WITH THIS AMENDMENT (INCLUDING THE
REASONABLE FEES, DISBURSEMENTS AND OTHER CHARGES OF SHEARMAN & STERLING LLP AS
COUNSEL TO THE AGENTS).
(C)
PAYMENT FROM THE BORROWER OF A CONSENT FEE PAYABLE IN DOLLARS FOR
THE ACCOUNT OF EACH LENDER (OTHER THAN A DEFAULTING LENDER) THAT HAS RETURNED AN
EXECUTED SIGNATURE PAGE TO THIS AMENDMENT TO THE ADMINISTRATIVE AGENT AT OR
PRIOR TO 5:00 P.M., NEW YORK CITY TIME ON DECEMBER 8, 2009 (THE "CONSENT
DEADLINE") IN THE AMOUNT OF 0.05% OF THE SUM OF SUCH LENDER'S REVOLVING CREDIT
COMMITMENT AND OUTSTANDING TERM LOANS.
SECTION 4
COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS AND BY DIFFERENT PARTIES HERETO ON SEPARATE COUNTERPARTS,
EACH OF WHICH WHEN SO EXECUTED AND DELIVERED SHALL BE DEEMED TO BE AN ORIGINAL,
BUT ALL OF WHICH WHEN TAKEN