required
at any time under Section 3.1(a)(ii) to pay the Agent a Shortfall Interest
Amount, the Borrower may pay the Shortfall Interest Amount by paying the Agent
in cash the full amount of each Term Loan A Interest Differential that was added
to the aggregate principal amount of the Term Loan A on each Term Loan A
Interest Payment Date during the prior Fiscal Year as provided in this Section
4(c) and any Shortfall Interest Amount paid by Borrower and actually received by
Agent in cash shall reduce, on a dollar for dollar basis, the amount of the Term
Loan A Interest Differential that was added to the principal balance of the Term
Loan A."
(D)
AS OF OCTOBER 2, 2006, THE AGGREGATE OUTSTANDING PRINCIPAL AMOUNT
OF THE LOANS IS AN AMOUNT EQUAL TO $495,043,387.53 (WHICH DOES NOT GIVE EFFECT
TO ANY TERM LOAN A INTEREST DIFFERENTIAL).
(E)
THE BORROWER'S OBLIGATIONS TO THE AGENT AND EACH OF THE LENDERS AS
EVIDENCED BY OR OTHERWISE ARISING UNDER THE LOAN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REMAIN IN FULL FORCE AND EFFECT AND ARE CONFIRMED AND RATIFIED IN ALL
RESPECTS.
(F)
THE AMENDMENTS AND WAIVERS PROVIDED FOR HEREIN ARE LIMITED TO THE
SPECIFIC SECTIONS OF THE LOAN AGREEMENT SPECIFIED HEREIN AND SHALL NOT
CONSTITUTE AN AMENDMENT OR WAIVER OF, OR AN INDICATION OF THE AGENT'S OR THE
LENDERS' WILLINGNESS TO AMEND OR WAIVE, ANY OTHER PROVISIONS OF THE CREDIT
AGREEMENT OR THE SAME SECTIONS FOR ANY OTHER DATE OR PURPOSE.
SECTION 5.
REPRESENTATIONS AND WARRANTIES.
THE BORROWER AND EACH OF
THE LOAN PARTIES REPRESENTS AND WARRANTS (WHICH REPRESENTATIONS AND WARRANTIES
SHALL SURVIVE THE EXECUTION AND DELIVERY HEREOF) TO THE AGENT AND LENDERS THAT:
(A)
IT HAS THE REQUISITE LIMITED LIABILITY COMPANY POWER AND AUTHORITY
TO EXECUTE, DELIVER AND PERFORM THE TERMS AND PROVISIONS OF THIS AMENDMENT AND
THE TRANSACTIONS CONTEMPLATED HEREBY AND HAS TAKEN OR CAUSED TO BE TAKEN ALL
NECESSARY LIMITED LIABILITY COMPANY ACTION TO AUTHORIZE THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY;
(B)
NO CONSENT OF ANY PERSON (INCLUDING, WITHOUT LIMITATION,
SHAREHOLDERS OR CREDITORS OF THE BORROWER OR ANY LOAN PARTY), AND NO CONSENT,
APPROVAL OR AUTHORIZATION OF, OR FILING WITH ANY GOVERNMENTAL AUTHORITY IS
REQUIRED TO AUTHORIZE, OR IS OTHERWISE REQUIRED IN CONNECTION WITH THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AMENDMENT AND THE OTHER INSTRUMENTS
AND DOCUMENTS CONTEMPLATED HEREBY WHICH HAS NOT BEEN DULY OBTAINED;
(C)
EACH OF THIS AMENDMENT AND ANY OTHER INSTRUMENTS AND DOCUMENTS
CONTEMPLATED HEREBY HAS BEEN DULY EXECUTED AND DELIVERED BY A DULY AUTHORIZED
OFFICER ON BEHALF OF SUCH PARTY, AND CONSTITUTES A LEGAL, VALID AND BINDING
OBLIGATION OF SUCH PARTY ENFORCEABLE AGAINST SUCH PARTY IN ACCORDANCE WITH ITS
TERMS, SUBJECT TO BANKRUPTCY, REORGANIZATION, INSOLVENCY, MORATORIUM AND OTHER
6
similar laws affecting the enforcement of creditors' rights generally and the
exercise of judicial discretion in accordance with general principles of equity;
(D)
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE LOAN PARTIES OF
THIS AMENDMENT, AND THE OTHER