OF THE CREDIT AGREEMENT
(INSOFAR AS SUCH REPRESENTATION AND WARRANTY RELATES TO COMPLIANCE WITH THE
INTEREST PAYMENT REQUIREMENTS OF THE SENIOR SECURED NOTES INDENTURE).
(B)
SUBJECT TO CLAUSE (C) BELOW, THE LENDERS HEREBY WAIVE THE CONDITION
PRECEDENT TO THE MAKING OF ANY LOAN SET FORTH IN SECTION 4.02(A)(II) OF THE
CREDIT AGREEMENT SOLELY WITH RESPECT TO THE DEFAULTS ARISING DIRECTLY AS A
RESULT OF (I) THE FAILURE OF THE BORROWERS TO MAKE THE SEMI-ANNUAL INTEREST
PAYMENT (DUE FEBRUARY 2, 2009) ON THE SENIOR SECURED NOTES, (II) THE FAILURE OF
THE BORROWERS TO COMPLY WITH SECTION 6.12 OF THE CREDIT AGREEMENT, (III) THE
FAILURE BY THE BORROWERS TO MAKE ANY PREPAYMENTS REQUIRED TO BE MADE PURSUANT TO
SECTION 2.11(B) OF THE CREDIT AGREEMENT PRIOR TO THE AMENDMENT NO. 2 EFFECTIVE
DATE AND (IV) THE FAILURE BY THE BORROWERS TO MAKE THE SCHEDULED INTEREST
PAYMENT (DUE FEBRUARY 27, 2009) ON THE TERM LOANS.
(C)
THE WAIVERS PROVIDED FOR IN PARAGRAPHS (A) AND (B) OF THIS SECTION SHALL
TERMINATE AND EXPIRE AT THE EARLIEST OF (I) 11:59 P.M., NEW YORK CITY TIME, ON
MARCH 27, 2009, (II) THE OCCURRENCE OF ANY EVENT SET FORTH IN CLAUSE (H) OF
ARTICLE VII OF THE CREDIT AGREEMENT (BUT WITHOUT THE REQUIREMENT THAT SUCH CASE,
ACTION, PROCEEDING OR PETITION CONTINUE UNDISMISSED FOR 60 DAYS), (III) THE
OCCURRENCE OF ANY OTHER EVENT OF DEFAULT AND (IV) THE ACCELERATION OF THE SENIOR
SECURED NOTES OR THE TAKING OF ANY OTHER ACTION BY ANY HOLDER OF THE SENIOR
SECURED NOTES IN RESPECT OF THE ENFORCEMENT OF PAYMENT ON THE SENIOR SECURED
NOTES, AND AT ALL TIMES THEREAFTER THE CREDIT AGREEMENT SHALL APPLY IN ALL
RESPECTS, AND THE ADMINISTRATIVE AGENT, THE ISSUING BANK AND THE LENDERS SHALL
HAVE ALL SUCH RIGHTS AND REMEDIES, AS IF SUCH WAIVERS HAD NEVER BEEN GRANTED.
THE PERIOD COMMENCING ON THE DATE HEREOF THROUGH AND INCLUDING THE TERMINATION
OF THE WAIVERS PROVIDED FOR IN PARAGRAPHS (A) AND (B) OF THIS SECTION IS
REFERRED TO HEREIN AS THE "WAIVER PERIOD".
SECTION 3.
AMENDMENTS TO SECTION 1.01.
SECTION 1.01 OF THE CREDIT AGREEMENT IS
HEREBY AMENDED AS FOLLOWS:
(A)
BY INSERTING THE FOLLOWING TEXT IMMEDIATELY FOLLOWING THE LAST PARAGRAPH OF
THE DEFINITION OF "APPLICABLE RATE" IN SUCH SECTION:
Notwithstanding the foregoing, for any day on and after February 2, 2009,
"Applicable Rate" means, with respect to any (a) Term Loan, (i) 7.50% per annum,
in the case of any Eurodollar Term Loan, and (ii) 6.50% per annum, in the case
of any ABR Term Loan, provided that, at any time when Average Availability is
less than $35,000,000, the
2
Applicable Rate with respect to any Term Loan shall be (x) 8.25% per annum, in
the case of any Eurodollar Term Loan, and (y) 7.25% per annum, in the case of
any ABR Term Loan, (b) Eurodollar Revolving Loan or B/A Drawing, 6.25% per
annum, (c) ABR Revolving Loan, U.S. Base Rate Revolving Loan or Canadian Base
Rate Revolving Loan, 5.25% per annum and (d) Commitment Fee payable