THE COLLATERAL
OR ANY PART OR PROCEEDS THEREOF, PURSUANT TO THE TERM DOCUMENTS, SO LONG AS SUCH
DISPOSITION IS CONDUCTED IN ACCORDANCE WITH MANDATORY PROVISIONS OF APPLICABLE
LAW AND DOES NOT BREACH THE PROVISIONS OF THIS AGREEMENT.
Section 5.2
Modifications to ABL Documents and
Term Documents.
(A)
THE TERM AGENT, ON BEHALF OF ITSELF AND THE
TERM SECURED PARTIES, HEREBY AGREES THAT, WITHOUT AFFECTING THE OBLIGATIONS OF
THE TERM AGENT AND THE TERM SECURED PARTIES HEREUNDER, THE ABL AGENT AND THE ABL
SECURED PARTIES MAY, AT ANY TIME AND FROM TIME TO TIME, IN THEIR SOLE DISCRETION
WITHOUT THE CONSENT OF OR NOTICE TO THE TERM AGENT OR ANY TERM SECURED PARTY,
AND WITHOUT INCURRING ANY LIABILITY TO THE TERM AGENT OR ANY TERM 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 ABL 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 TERM AGENT, THE ABL AGENT AND THE
ABL LENDERS SHALL NOT AGREE TO ANY AMENDMENT OR MODIFICATION OF THE ABL CREDIT
AGREEMENT WHICH WOULD (I) INCREASE THE TOTAL COMMITMENTS (AS DEFINED IN THE ABL
CREDIT AGREEMENT AS IN EFFECT ON THE DATE HEREOF) TO AN AMOUNT IN EXCESS OF THE
AMOUNTS SET FORTH IN CLAUSE (A) OF THE DEFINITION OF MAXIMUM ABL OBLIGATIONS,
(II) DIRECTLY INCREASE THE INTEREST RATES ON THE ABL OBLIGATIONS TO A RATE
GREATER THAN 2.0% PER ANNUM ABOVE RATES AS ARE IN EFFECT ON THE DATE HEREOF
(EXCLUDING, WITHOUT LIMITATION, FLUCTUATIONS IN UNDERLYING RATE INDICES, PRICING
GRID LEVEL CHANGES DUE TO CHANGES IN AVERAGE DAILY EXCESS AVAILABILITY, AND
IMPOSITION OF A DEFAULT RATE OF INTEREST NOT GREATER THAN 2.0% PER ANNUM),
(III) DIRECTLY OR INDIRECTLY PROHIBIT OR RESTRICT THE PAYMENT OF PRINCIPAL OF,
INTEREST ON, THE TERM OBLIGATIONS, IN A MANNER MORE RESTRICTIVE THAN THE
PROHIBITIONS AND RESTRICTIONS CONTAINED IN THE ABL CREDIT AGREEMENT AS IN EFFECT
ON THE DATE HEREOF, (IV) EXCEPT AS A RESULT OF THE PERMITTED INSOLVENCY INCREASE
AMOUNT, CHANGE THE DEFINITION OF "BORROWING BASE", "OVERADVANCE", "INADVERTENT
OVERADVANCE", OR "PERMITTED OVERADVANCE" CONTAINED IN THE ABL CREDIT AGREEMENT
OR ANY COMPONENT DEFINITION THEREOF BY INCREASING ADVANCE RATES OR CHANGING THE
ELIGIBILITY CRITERIA FOR THE ASSETS INCLUDED THEREIN IF SUCH CHANGE WOULD RESULT
IN AN INCREASE OF THE AMOUNTS AVAILABLE TO BE BORROWED THEREUNDER, OR (V) REDUCE
THE AMOUNT OF EXCESS AVAILABILITY (AS DEFINED IN THE ABL CREDIT AGREEMENT AS IN
EFFECT ON THE DATE HEREOF) THAT IS REQUIRED TO BE MAINTAINED IN
SECTION 6.8(B) OF THE ABL CREDIT AGREEMENT AS IN EFFECT ON THE DATE HEREOF.
THE
ABL AGENT AGREES THAT UPON THE REQUEST OF THE TERM AGENT, IT SHALL MAKE ITSELF
AVAILABLE FOR DISCUSSION WITH THE TERM AGENT REGARDING THE AMOUNT OR COMPUTATION
OF ANY RESERVES (AS DEFINED IN THE ABL CREDIT AGREEMENT AS IN EFFECT ON THE DATE
HEREOF) THAT ARE PERMITTED