A
CERTIFICATE, SIGNED BY THE CHIEF FINANCIAL OFFICER OF THE COMPANY, CONFIRMING
THE ACCURACY IN ALL MATERIAL RESPECTS AS OF THE AMENDMENT NO. 1 EFFECTIVE DATE
OF SECTION 2(B) OF THIS AMENDMENT, AND STATING THAT IMMEDIATELY AFTER GIVING
EFFECT TO THIS AMENDMENT AND THE CONSUMMATION OF THE ACQUISITION (I) NO
UNMATURED DEFAULT (BUT ONLY TO THE EXTENT ARISING UNDER SECTIONS 7.2, 7.3 (AS TO
SECTIONS 6.1(A)-(D) OR (I) OR 6.6 ONLY) OR SECTION 7.7) OR DEFAULT HAS OCCURRED
AND IS CONTINUING AND (II) NO MATERIAL ADVERSE CHANGE HAS OCCURRED IN THE
FINANCIAL POSITION OR BUSINESS OF THE COMPANY, ITS SUBSIDIARIES AND THE BUSINESS
(TAKEN AS A WHOLE AND GIVING PRO FORMA EFFECT TO THE ACQUISITION AND THE RELATED
FINANCINGS) SINCE DECEMBER 31, 2008;
(I)
THERE SHALL HAVE BEEN EXECUTED AND
DELIVERED TO THE ADMINISTRATIVE AGENT THE SUBSIDIARY GUARANTY SUBSTANTIALLY IN
THE FORM ATTACHED HERETO AS EXHIBIT G, AMENDED AS AND TO THE EXTENT NECESSARY TO
INCLUDE ANY ADDITIONAL MATERIAL SUBSIDIARIES DISCLOSED TO THE ADMINISTRATIVE
AGENT BY THE COMPANY PURSUANT TO SECTION 2(E) OF THIS AMENDMENT; AND
(J)
DELIVERY TO THE ADMINISTRATIVE AGENT OF
A WRITTEN OPINION OF KIRKLAND & ELLIS LLP, SPECIAL COUNSEL TO THE COMPANY
ADDRESSING CUSTOMARY MATTERS, ADDRESSED TO THE LENDERS AND IN FORM AND SUBSTANCE
REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT.
In the event the Amendment No. 1 Effective Date has not occurred on or before
March 31, 2010, Sections 1 (other than subclause (k) of Section 6.15 under
Section 1(o) of this Amendment), 3 and 4 of this Amendment shall not become
operative and shall be of no force or effect.
6.
REFERENCE TO AND EFFECT UPON THE CREDIT
AGREEMENT.
(A)
EXCEPT AS SPECIFICALLY AMENDED ABOVE, THE
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL REMAIN IN FULL FORCE AND
EFFECT AND ARE HEREBY RATIFIED AND CONFIRMED.
(B)
THE EXECUTION, DELIVERY AND EFFECTIVENESS OF
THIS AMENDMENT SHALL NOT OPERATE AS A WAIVER OF ANY RIGHT, POWER OR REMEDY OF
THE ADMINISTRATIVE AGENT OR ANY LENDER UNDER THE CREDIT AGREEMENT OR ANY LOAN
DOCUMENT, NOR CONSTITUTE A WAIVER OF ANY PROVISION OF THE CREDIT AGREEMENT OR
ANY LOAN DOCUMENT, EXCEPT AS SPECIFICALLY SET FORTH HEREIN.
UPON THE
EFFECTIVENESS OF THIS AMENDMENT, EACH REFERENCE IN THE CREDIT AGREEMENT TO "THIS
AGREEMENT", "HEREUNDER", "HEREOF", "HEREIN" OR WORDS OF SIMILAR IMPORT SHALL
MEAN AND BE A REFERENCE TO THE CREDIT AGREEMENT AS AMENDED HEREBY.
18
7.
COSTS AND EXPENSES.
THE COMPANY HEREBY
AFFIRMS ITS OBLIGATION UNDER SECTION 9.6 OF THE CREDIT AGREEMENT TO REIMBURSE
THE ADMINISTRATIVE AGENT AND JPMORGAN FOR ANY COSTS, INTERNAL CHARGES AND
OUT-OF-POCKET EXPENSES (INCLUDING ATTORNEYS' FEES AND TIME CHARGES OF ATTORNEYS
FOR THE ADMINISTRATIVE AGENT, WHICH ATTORNEYS MAY BE EMPLOYEES OF THE
ADMINISTRATIVE AGENT) PAID OR INCURRED BY THE ADMINISTRATIVE AGENT OR JPMORGAN
IN CONNECTION WITH THE PREPARATION, NEGOTIATION, EXECUTION AND DELIVERY OF THIS
AMENDMENT.
8.
GOVERNING LAW.
THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.