to (i) assign or otherwise transfer to one or more
Assignees all or a portion of its rights or obligations under the Bridge Loan
Agreement or (ii) sell participations to one or more Participants in all or a
portion of its rights or obligations under the Bridge Loan Agreement, in each
case pursuant to Section 9.6 of the Bridge Loan Agreement.
(h)
The Company hereby agrees to negotiate in good faith with the
Agent and Lenders to finalize by no later than May 29, 2009 the amendments to
the Bridge Loan Agreement and to the Senior Credit Facility and the definitive
documentation for the "Facility" described in the commitment letters dated on or
about May 6, 2009 (together with the Term Sheet referred to therein, the
"Commitment Letters") entered into by certain Lenders and certain lenders under
the Senior Credit Facility, in each case on substantially the terms and
conditions set forth in the Commitment Letters.
2
SECTION 2.
CONDITIONS OF EFFECTIVENESS
THIS AMENDMENT AND WAIVER SHALL BECOME EFFECTIVE AS OF THE DATE FIRST ABOVE
WRITTEN WHEN, AND ONLY WHEN, THE FOLLOWING CONDITIONS HAVE BEEN SATISFIED:
(A)
THE AGENT SHALL HAVE RECEIVED COUNTERPARTS OF THIS AMENDMENT AND
WAIVER EXECUTED BY THE COMPANY, THE MAJORITY LENDERS, THE EXTENDING LENDERS,
AND/OR, AS TO ANY SUCH MAJORITY LENDER AND EXTENDING LENDER, ADVICE SATISFACTORY
TO THE AGENT THAT SUCH LENDER HAS EXECUTED THIS AMENDMENT AND WAIVER;
(B)
THE AGENT SHALL HAVE RECEIVED A CERTIFICATE OF THE SECRETARY OR
ASSISTANT SECRETARY OF THE COMPANY, IN FORM AND SUBSTANCE SATISFACTORY TO THE
AGENT, WHICH CERTIFICATE SHALL (I) CERTIFY AS TO THE INCUMBENCY AND SIGNATURE OF
THE OFFICERS OF THE COMPANY EXECUTING THIS AMENDMENT AND WAIVER (WITH THE
PRESIDENT, A VICE PRESIDENT, THE SECRETARY OR ASSISTANT SECRETARY OF THE COMPANY
ATTESTING TO THE INCUMBENCY AND SIGNATURE OF THE SECRETARY OR ASSISTANT
SECRETARY PROVIDING SUCH CERTIFICATE), (II) HAVE ATTACHED TO IT A TRUE AND
CORRECT COPY OF THE RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE COMPANY, WHICH
RESOLUTIONS SHALL AUTHORIZE THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AMENDMENT AND WAIVER, AND (III) CERTIFY THAT, AS OF THE DATE OF SUCH CERTIFICATE
(WHICH SHALL NOT BE EARLIER THAN THE DATE HEREOF), NONE OF SUCH RESOLUTIONS
SHALL HAVE BEEN AMENDED, SUPPLEMENTED, MODIFIED, REVOKED OR RESCINDED;
(C)
THE AGENT SHALL HAVE RECEIVED SATISFACTORY EVIDENCE THAT WAIVER
NO. 3 TO THE SENIOR CREDIT FACILITY DATED AS OF THE DATE HEREOF SHALL HAVE
BECOME EFFECTIVE;
(D)
EACH GUARANTOR HAS EXECUTED AND DELIVERED A CONSENT IN THE FORM OF
ANNEX A HERETO; AND
(E)
ALL OTHER FEES AND EXPENSES OF THE AGENT AND THE LENDERS
(INCLUDING (I) ALL REASONABLE FEES AND EXPENSES OF COUNSEL TO THE AGENT AND
(II) ALL RETAINERS FOR COUNSEL TO THE AGENT AND ADVISOR TO THE AGENT), TO THE
EXTENT INVOICED PRIOR TO THE DATE HEREOF, SHALL HAVE BEEN PAID.
SECTION 3.
CONFIRMATION OF REPRESENTATIONS AND WARRANTIES
(A)
THE COMPANY HEREBY REPRESENTS AND WARRANTS, ON AND AS OF THE DATE
HEREOF, THAT THE REPRESENTATIONS AND WARRANTIES CONTAINED IN