OF NO FURTHER FORCE OR EFFECT, AND IF ANY SCHEDULED DEFAULT HAS
OCCURRED AND IS CONTINUING AT SUCH TIME, THE ADMINISTRATIVE AGENT AND THE
LENDERS SHALL BE ENTITLED TO IMMEDIATELY TAKE ENFORCEMENT ACTIONS UNDER THE
CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS AND APPLICABLE LAW, ALL WITHOUT
FURTHER NOTICE OR DEMAND, IN RESPECT OF THE SCHEDULED DEFAULTS, OR ANY OTHER
EVENT OF DEFAULT, THEN EXISTING.
SECTION 4.
AGREEMENTS.
To induce the Administrative Agent and the
Lenders to enter into this Agreement and to temporarily waive the Scheduled
Defaults during the Temporary Waiver Period, if the Scheduled Defaults have
occurred and are continuing, the Borrowers, the other Loan Parties, the
Administrative Agent and the Lenders agree as follows:
4.1
FINANCIAL ADVISOR.
THE ADMINISTRATIVE AGENT OR THE STEERING
COMMITTEE SHALL, ON BEHALF OF THE LENDERS, HAVE THE RIGHT TO HIRE OR TO CAUSE
ITS COUNSEL TO HIRE FOR ITS BENEFIT A RESTRUCTURING OR FINANCIAL ADVISOR TO
ASSIST WITH THE COORDINATION AND CONSUMMATION OF A POTENTIAL AMENDMENT TO OR
RESTRUCTURING OF THE CREDIT AGREEMENT, AND THE U.S. BORROWER SHALL BE LIABLE FOR
ALL COSTS AND EXPENSES INCURRED BY THE ADMINISTRATIVE AGENT OR THE STEERING
COMMITTEE, AS APPLICABLE, WITH RESPECT TO SUCH RESTRUCTURING OR FINANCIAL
ADVISOR.
IN CONNECTION WITH ANY SUCH HIRING, THE U.S. BORROWER SHALL PROMPTLY
EXECUTE AND DELIVER AN ENGAGEMENT-RELATED AGREEMENT WHICH IS REASONABLY
SATISFACTORY IN FORM AND SUBSTANCE TO THE U.S. BORROWER, WHICH SHALL INCLUDE AN
AGREEMENT BY THE U.S. BORROWER TO BE DIRECTLY RESPONSIBLE FOR THE FEES OF SUCH
RESTRUCTURING OR OTHER FINANCIAL ADVISOR AND TO USE ITS COMMERCIALLY REASONABLE
EFFORTS TO COOPERATE, AND TO CAUSE ITS OWN ADVISORS AND ITS SUBSIDIARIES TO
COOPERATE WITH SUCH RESTRUCTURING OR OTHER FINANCIAL ADVISOR IN THE PERFORMANCE
OF ITS DUTIES AS AN ADVISOR IN ACCORDANCE WITH SUCH ENGAGEMENT-RELATED
AGREEMENT.
4.2
CASH AND CASH EQUIVALENTS.
PROMPTLY FOLLOWING THE EFFECTIVE DATE,
THE BORROWERS SHALL IDENTIFY THE LOCATIONS AND AMOUNTS OF MATERIAL HOLDINGS BY
IT AND ITS SUBSIDIARIES OF CASH
3
AND CASH EQUIVALENTS AND TAKE OR CAUSE TO BE TAKEN SUCH ACTIONS AS THE
ADMINISTRATIVE AGENT OR THE STEERING COMMITTEE MAY REASONABLY REQUEST TO ASSURE
THAT THE ADMINISTRATIVE AGENT FOR THE BENEFIT OF THE LENDERS HAS A PERFECTED
SECURITY INTEREST THEREIN WITH "CONTROL" (AS DEFINED IN THE UNIFORM COMMERCIAL
CODE) WITH RESPECT THERETO TO THE EXTENT REQUIRED PURSUANT TO THE LOAN
DOCUMENTS.
4.3
MINIMUM LIQUIDITY.
FROM AND AFTER THE EFFECTIVE DATE, THE U.S.
BORROWER SHALL NOT, DIRECTLY OR INDIRECTLY, AT ANY TIME PERMIT (A) LIQUIDITY TO
BE LESS THAN $30,000,000 OR (B) AVERAGE LIQUIDITY FOR FIVE CONSECUTIVE BUSINESS
DAYS ("AVERAGE LIQUIDITY") TO BE LESS THAN $35,000,000; PROVIDED, HOWEVER, THAT
(I) LIQUIDITY SHALL BE CALCULATED WITHOUT GIVING EFFECT TO THE UNUTILIZED AMOUNT
OF COMMITMENTS OF ANY DEFAULTING LENDER AND (II) IF (A) LIQUIDITY AT ANY TIME IS
LESS THAN $30,000,000 BUT GREATER THAN $28,000,000 OR (B) AVERAGE LIQUIDITY FOR
FIVE CONSECUTIVE BUSINESS DAYS IS LESS THAN $35,000,000 BUT GREATER THAN
$33,000,000, SUCH FAILURE SHALL NOT CONSTITUTE AN EVENT OF DEFAULT OR A FAILURE
TO PERFORM ITS