TO BE ESTABLISHED PURSUANT TO THE ABL CREDIT
AGREEMENT, PROVIDED THAT, EXCEPT AS PROVIDED BELOW, THE FOREGOING AGREEMENT
SHALL NOT LIMIT OR IMPAIR THE ABL AGENT'S RIGHTS TO ESTABLISH, INCREASE, REDUCE
OR ELIMINATE ANY SUCH RESERVES OR REQUIRE ANY PRIOR NOTICE TO, OR CONSENT FROM,
THE TERM AGENT OR THE TERM SECURED PARTIES THERETO; PROVIDED FURTHER THAT THE
ABL AGENT SHALL NOT ELIMINATE ANY CATEGORY OF RESERVES EXISTING AS OF THE DATE
HEREOF OR CHANGE THE METHODOLOGY FOR THE CALCULATION OF SUCH RESERVES WITHOUT
THE CONSENT OF THE TERM AGENT.
FURTHERMORE, THE ABL AGENT AGREES THAT, IF AND
TO THE EXTENT THAT
29
EXCESS AVAILABILITY (AS DEFINED IN THE ABL CREDIT AGREEMENT AS OF THE DATE
HEREOF) IS LESS THAN $75,000,000 AT ANY TIME, UPON THE REQUEST OF THE TERM
AGENT, THE ABL AGENT SHALL ESTABLISH A RESERVE (THE "TERM RESERVE") IN AN AMOUNT
EQUAL TO TWO AND ONE-HALF PERCENT (2.5%) OF THE BORROWING BASE AS CALCULATED AS
OF THE TIME OF THE TERM AGENT'S REQUEST (IT BEING UNDERSTOOD THAT THE TERM AGENT
MAY MAKE ADDITIONAL REQUESTS DUE TO INCREASES IN THE BORROWING BASE SO THAT THE
TERM RESERVE IS AT ALL TIMES EQUAL TO TWO AND ONE-HALF PERCENT (2.5%) OF THE
BORROWING BASE IF EXCESS AVAILABILITY IS LESS THAN $75,000,000).
ONCE
ESTABLISHED, EXCEPT AS OTHERWISE PERMITTED IN THE TERM CREDIT AGREEMENT, THE
TERM RESERVE SHALL NOT BE ELIMINATED OR REDUCED BY THE ABL AGENT WITHOUT THE
PRIOR WRITTEN CONSENT OF THE TERM AGENT.
(B)
THE ABL AGENT, ON BEHALF OF ITSELF AND THE
ABL SECURED PARTIES, HEREBY AGREES THAT, WITHOUT AFFECTING THE OBLIGATIONS OF
THE ABL AGENT AND THE ABL SECURED PARTIES HEREUNDER, THE TERM AGENT AND THE TERM
SECURED PARTIES MAY, AT ANY TIME AND FROM TIME TO TIME, IN THEIR SOLE DISCRETION
WITHOUT THE CONSENT OF OR NOTICE TO THE ABL AGENT OR ANY ABL SECURED PARTY, AND
WITHOUT INCURRING ANY LIABILITY TO THE ABL AGENT OR ANY ABL SECURED PARTY OR
IMPAIRING OR RELEASING THE LIEN PRIORITY PROVIDED FOR HEREIN, AMEND, RESTATE,
SUPPLEMENT, REPLACE, REFINANCE, EXTEND, CONSOLIDATE, RESTRUCTURE, OR OTHERWISE
MODIFY ANY OF THE TERM DOCUMENTS IN ANY MANNER WHATSOEVER OTHER THAN IN A MANNER
WHICH WOULD HAVE THE EFFECT OF CONTRAVENING THE TERMS OF THIS AGREEMENT,
PROVIDED, HOWEVER, WITHOUT THE CONSENT OF THE ABL AGENT, THE TERM AGENT AND THE
TERM LENDERS SHALL NOT AGREE TO ANY AMENDMENT OR MODIFICATION OF THE TERM CREDIT
AGREEMENT WHICH WOULD (I) INCREASE THE AMOUNT OF THE TERM LOAN (OTHER THAN
THROUGH THE CAPITALIZATION OF PIK AMOUNTS (AS DEFINED IN THE TERM CREDIT
AGREEMENT AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED IN ACCORDANCE
WITH THE TERMS HEREOF)) IN EXCESS OF THE SUM OF $150,000,000 LESS ANY PRINCIPAL
PAYMENTS MADE ON ACCOUNT THEREOF, (II) DIRECTLY INCREASE THE INTEREST RATES ON
THE TERM OBLIGATIONS TO A RATE GREATER THAN 2.0% PER ANNUM ABOVE RATES AS ARE IN
EFFECT ON THE DATE HEREOF (EXCLUDING IMPOSITION OF A DEFAULT RATE OF INTEREST
NOT GREATER THAN 2.0% PER ANNUM), (III) TERMINATE THE TERM