WAIVER TERMINATION EVENT, AND UPON SUCH EXPIRATION THE TERMS
AND PROVISIONS OF SECTIONS 5.01(A), 6.09, 6.10 AND 6.12 OF THE CREDIT AGREEMENT
SHALL BE EFFECTIVE WITH THE SAME FORCE AND EFFECT UNDER THE CREDIT AGREEMENT AS
IF SUCH WAIVERS HAD NOT BEEN GIVEN.
AS USED IN THIS PARAGRAPH 1, "WAIVER
TERMINATION EVENT" MEANS THE EARLIEST TO OCCUR OF (A) 5 P.M. CHICAGO TIME ON
NOVEMBER 17, 2009, AND (B) IF AT ANY TIME CAPITAL EXPENDITURES FOR THE PERIOD
COMMENCING ON THE FIRST DAY OF THE FISCAL MONTH FOR JANUARY, 2009 THROUGH THE
DATE OF DETERMINATION EXCEEDS $4,000,000 IN THE AGGREGATE.
2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY AND
EACH SUBSIDIARY GUARANTOR REPRESENTS AND WARRANTS THAT:
(A)
ITS EXECUTION, DELIVERY AND PERFORMANCE OF THIS WAIVER HAS BEEN
DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION AND THIS WAIVER IS ITS LEGAL,
VALID AND BINDING OBLIGATION ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS THE ENFORCEMENT THEREOF MAY BE SUBJECT TO (I) THE EFFECT OF ANY
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAW
AFFECTING CREDITORS' RIGHTS GENERALLY AND (II) GENERAL PRINCIPLES OF EQUITY,
REGARDLESS OF WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
(B)
EACH OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THE CREDIT
AGREEMENT AND THE OTHER CREDIT DOCUMENTS IS TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON AND AS OF THE DATE HEREOF AS IF MADE ON THE DATE HEREOF (EXCEPT ANY
SUCH REPRESENTATION OR WARRANTY THAT EXPRESSLY RELATES TO OR IS MADE EXPRESSLY
AS OF A SPECIFIC EARLIER DATE, IN WHICH CASE SUCH REPRESENTATION OR WARRANTY
SHALL BE TRUE AND CORRECT WITH RESPECT TO OR AS OF SUCH SPECIFIC EARLIER DATE).
(C)
AFTER GIVING EFFECT TO THIS WAIVER, NO DEFAULT HAS OCCURRED AND IS
CONTINUING.
3.
EFFECTIVE DATE.
THIS WAIVER SHALL BECOME EFFECTIVE UPON RECEIPT
BY THE ADMINISTRATIVE AGENT OF (I) DULY EXECUTED COUNTERPARTS OF THIS WAIVER
FROM THE COMPANY, THE SUBSIDIARY GUARANTORS AND THE REQUIRED LENDERS, (II) THE
REAFFIRMATION OF GUARANTY IN THE FORM ATTACHED HERETO AS EXHIBIT A EXECUTED BY
EACH OF THE SUBSIDIARY GUARANTORS, (III) PAYMENT TO THE ADMINISTRATIVE AGENT, IN
IMMEDIATELY AVAILABLE FUNDS FOR THE RATABLE BENEFIT OF THE LENDERS, OF AN
AMENDMENT AND WAIVER FEE OF $25,000, WHICH FEE SHALL BE DEEMED FULLY EARNED AND
NONREFUNDABLE ON THE EFFECTIVE DATE, AND (IV) PAYMENT OF ALL OTHER FEES DUE THE
ADMINISTRATIVE AGENT, INCLUDING, WITHOUT LIMITATION, ALL FEES AND OUT-OF-POCKET
COSTS AND EXPENSES OF COUNSEL TO THE ADMINISTRATIVE AGENT AND OF THE FINANCIAL
ADVISOR RETAINED BY ITS COUNSEL INVOICED THROUGH THE DATE HEREOF.
4.
REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
(A)
EXCEPT AS SPECIFICALLY AMENDED ABOVE, THE CREDIT AGREEMENT AND THE
OTHER
2
CREDIT DOCUMENTS SHALL REMAIN IN FULL FORCE AND EFFECT AND ARE HEREBY RATIFIED
AND CONFIRMED.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY
HEREBY REAFFIRMS ITS OBLIGATIONS UNDER PARAGRAPH 4(B) OF AMENDMENT NO. 6 WITH
RESPECT TO THE DEPOSIT INTO A CASH COLLATERAL ACCOUNT WITH THE COLLATERAL AGENT
OF ANY FEDERAL OR STATE