FORBEARANCE AGREEMENT; WAIVER; AND FIRST AMENDMENT TO THE CREDIT AGREEMENT

 

Swing Line Loans:		$	0
Letters of Credit:		$	10,184,203.00

 

The Borrower and each other Credit Party acknowledge and agree that as of February 25, 2009, the aggregate amount of accrued and unpaid interest on the Term Loans, Revolving Credit Loans and Swing Line Loans is $1,544,861.20 (the “ Existing Interest ”), the aggregate amount of accrued and unpaid commitment fees payable pursuant to Section 2.09(a) of the Credit Agreement is $8,201.94 (the “ Existing Commitment Fees ”), the aggregate amount of accrued and unpaid letter of credit fees payable pursuant to Section 2.03(h) of the Credit Agreement is $38,190.80 (the “ Existing LC Fees ”) and the aggregate amount of accrued and unpaid letter of credit fronting fees payable pursuant to Section 2.03(i) of the Credit Agreement is $4,500.00 (the “ Existing LC Fronting Fees ” and, together with the Existing Principal and Letters of Credit, the Existing Interest, the Existing Commitment Fees and the Existing LC Fees, the “ Outstanding Indebtedness ”).  The foregoing amounts do not include other fees, expenses and other amounts which are chargeable or otherwise reimbursable under the Credit Agreement and the other Loan Documents.  None of the Borrower or the other Credit Parties has any rights of offset, defenses, claims or counterclaims with respect to any of the Obligations and each of the Loan Parties are jointly and severally obligated with respect thereto (and each of the Holding Companies are jointly and severally obligated with respect thereto), in each case in accordance with the terms of the applicable Loan Documents.

 

(b)    Limited Waiver . The Lenders hereby waive, at all times during the Waiver Period (as defined below), each Potential Pre-Forbearance Default (the “ Limited Waiver ”).  The Borrower and each other Credit Party acknowledge and agree that but for the Limited Waiver, each Potential Pre-Forbearance Default would otherwise constitute a Default or an Event of Default that has occurred and is continuing as of the Forbearance Effective Date (as hereinafter defined). On and after the Waiver Termination Date (as defined below), the existence of the Potential Pre-Forbearance Defaults will permit the Administrative Agent, either itself or at the request of the Required Lenders, to, among other things, (A) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions to be terminated, whereupon such commitment and obligation shall be terminated, (B) accelerate all or any portion of the Obligations and (C) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law.

 

SECTION 2.  Forbearance; Forbearance Default Rights and Remedies .

 

(a)    The Forbearance .  Effective as of the Forbearance Effective Date, each of the Administrative Agent and each Lender agrees that (i) until the expiration or termination of the Borrower Forbearance Period (as defined below), it will forbear from exercising its rights and remedies (including enforcement and collection actions) under the Loan Documents against the Borrower or any of the Collateral or other property owned by the Borrower (including, without limitation, via set-off or recoupment) solely with respect to the Potential Specified Defaults, (ii) until the expiration or termination of the Holding Company Forbearance Period (as defined below), it will forbear from exercising its rights and remedies (including enforcement and collection actions) under the Loan Documents against the Holding Companies or any of the Collateral or other property owned by the Holding Companies (including, without limitation, via set-off or recoupment) solely with respect to the Potential Specified Defaults, and (iii) until the expiration or termination of the Other Credit Party Forbearance Period (as defined below), it will forbear from exercising its rights and remedies (including enforcement and collection actions) under the Loan Documents against each Credit Party (other than the Borrower and the Holding Companies) or any of the Collateral or other property owned by such Credit Parties (including, without limitation, via set-off or recoupment) solely with respect to the Potential Specified Defaults.  The Borrower and each other Credit Party acknowledge and agree that (x) each Potential Specified Default (other than a Potential Pre-Forbearance Default) that may occur and be continuing during an Applicable

 

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Forbearance Period would constitute a Default or an Event of Default upon which action could be taken but for the forbearance described in the preceding sentence, and (y) the Administrative Agent and the Lenders shall not be delayed, prohibited or otherwise stayed on and after the Other Credit Party Forbearance Termination Date from taking an action or exercising any rights against the Credit Parties or their respective assets (other than the Borrower, the Holding Companies or their respective assets) as a result of the commencement of the Borrower Chapter 11 Case or the Holding Company Chapter 11 Cases prior to the Other Credit Party Forbearance Termination Date.  To the extent necessary, each of the Borrower and each Holding Company hereby grants to the Administrative Agent and the Lenders a limited waiver of the automatic stay imposed by Section 362 of the Bankruptcy Code (to the extent applicable in the Borrower Chapter 11 Case or the Holdings Chapter 11 Cases, as the case may be) solely to give effect to clause (y) of the preceding sentence.

 

(b)    Effect of Forbearance Termination . From and after the Applicable Forbearance Termination Date (as hereinafter defined), the agreement of each Lender and the Administrative Agent hereunder to forbear as set forth in Section 2(a) shall immediately terminate without the requirement of any demand, presentment, protest, or notice of any kind, all of which are hereby waived by the Borrower and each other Credit Party.  The Borrower and each other Credit Party hereby agree that (i) from and after the Borrower Forbearance Termination Date (after the giving of any notice and the lapse of any grace period applicable in the determination thereof), the Administrative Agent, either itself or at the direction of the Required Lenders, may at any time, or from time to time, in its (or their) sole and absolute discretion, exercise against the Borrower (and its properties) any and all of their rights, remedies, powers and privileges under any or all of the Credit Agreement, any other Loan Document, applicable law and/or equity, all of which rights, remedies, powers and privileges are fully reserved by each Lender and the Administrative Agent, (ii) from and after the Holding Company Forbearance Termination Date (after the giving of any notice and the lapse of any grace period applicable in the determination thereof), the Administrative Agent, either itself or at the direction of the Required Lenders, may at any time, or from time to time, in its (or their) sole and absolute discretion, exercise against the Holding Companies (and their properties) any and all of their rights, remedies, powers and privileges under any or all of the Credit Agreement, any other Loan Document, applicable law and/or equity, all of which rights, remedies, powers and privileges are fully reserved by each Lender and the Administrative Agent, and (iii) from and after the Other Credit Party Forbearance Termination Date (after the giving of any notice and the lapse of any grace period applicable in the determination thereof), the Administrative Agent, either itself or at the direction of the Required Lenders, may at any time, or from time to time, in its (or their) sole and absolute discretion, exercise against any Credit Party (and its properties) any and all of their rights, remedies, powers and privileges under any or all of the Credit Agreement, any other Loan Document, applicable law and/or equity, all of which rights, remedies, powers and privileges are fully reserved by each Lender and the Administrative Agent.

 

(c)    Limitation on Forbearance Extension . Except as set forth herein, none of the Lenders or the Administrative Agent shall have any obligation to extend an Applicable Forbearance Period, or enter into any other waiver, forbearance or amendment, and the Lenders’ and the Administrative Agent’s agreement to permit any such extension, or enter into any other waiver, forbearance or amendment shall be subject to the sole discretion of the Required Lenders (or, if required by Section 10.01 of the Credit Agreement, each Lender and each applicable Class of Lenders required thereby).  Any agreement by any Lender or the Administrative Agent to extend an Applicable Forbearance Period, if any, or enter into any other waiver, forbearance or amendment, must be set forth in writing and signed by a duly authorized signatory of the Administrative Agent and the Required Lenders (or, if required by Section 10.01 of the Credit Agreement, each Lender and each applicable Class of Lenders required thereby).  The Borrower and the other Credit Parties each acknowledge that the Lenders and the Administrative Agent have not made any assurances concerning any possibility of an extension of an Applicable Forbearance Period or the entering into of any waiver, forbearance or amendment.

 

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(d)    Limitations on Additional Extensions of Credit . The Borrower and the other Credit Parties each acknowledge and agree that no additional Loans or other financial accommodation under the Credit Agreement shall be made by the Lenders (including the L/C Issuers) to the Borrower during the Borrower Forbearance Period, other than (i) the issuance, renewal, extension or replacement of Letters of Credit and (ii) L/C Borrowings deemed to have been incurred by the Borrower pursuant to Section 2.03(c)(iii) of the Credit Agreement; provided that (x) the aggregate Revolving Credit Exposure of the Revolving Credit Lenders shall not increase after giving effect to any L/C Borrowing, Letter of Credit issuance or other extension of credit as provided above (it being understood and agreed, however, that L/C Obligations may in fact increase if accompanied by a repayment of Loans such that, after giving effect to such Letter of Credit issuance or other extension of credit as provided above, the aggregate Revolving Credit Exposure of the Revolving Credit Lenders does not exceed the Revolving Credit Exposure of the Revolving Credit Lenders on the Forbearance Effective Date) and (ii) the Borrower shall have Cash Collateralized all L/C Obligations (in an amount equal to the then Outstanding Amount thereof, after giving effect to the issuance, renewal, extension or replacement of the respective Letter of Credit) in the manner contemplated by Section 2.03(g) (but without regard to whether such Cash Collateralization is expressly required by such Section).  In connection with any financial accommodations incurred or extended pursuant to the Credit Agreement during the Borrower Forbearance Period as permitted by clause (i) of the preceding sentence, the conditions specified in Section 4.02 of the Credit Agreement shall be required to be satisfied; provided that solely for such purposes during the Borrower Forbearance Period (x) any representations and warranties (i) pursuant to Section 5.05(b) of the Credit Agreement shall not be required to be made and (ii) pursuant to Section 5.07 of the Credit Agreement shall be deemed modified so that the representation excludes the effects of defaults under the Existing Senior Notes Indentures and the Existing Senior Subordinated Notes Indentures (collectively, the “ Existing Notes Indentures ”) solely as a result of the existence of one or more Potential Specified Defaults, (y) no Potential Specified Default shall be deemed to constitute a Default or Event of Default for purposes of the representation and warranty contained in the second sentence of Section 5.07 of the Credit Agreement, and (z) no Potential Specified Default shall be deemed to constitute a Default or Event of Default (the items included in (x), (y) and (z), the “ Permitted Exceptions ”).

 

(e)    Certain Definitions . As used in this Forbearance Agreement, the following terms shall have the meanings set forth below:

 

“ Amended and Restated Credit Agreement ” has the meaning provided in the Credit Facilities Term Sheet.

 

“ Applicable Forbearance Period ” means (i) with respect to the Borrower, the Borrower Forbearance Period, (ii) with respect to each Holding Company, the Holding Company Forbearance Period, and (iii) with respect to each Credit Party (other than the Borrower and the Holding Companies), the Other Credit Party Forbearance Period.

 

“ Applicable Forbearance Termination Date ” means (i) with respect to the Borrower and the Borrower Forbearance Period, the Borrower Forbearance Termination Date, (ii) with respect to each Holding Company and the Holding Company Forbearance Period, the Holding Company Forbearance Termination Date and (iii) with respect to each Credit Party (other than the Borrower and the Holding Companies) and the Other Credit Party Forbearance Period, the Other Credit Party Forbearance Termination Date.

 

“ Bank Solicitation Statement ” means that certain “Solicitation of Acceptance of a Plan of Reorganization” in respect of the Credit Agreement in the form circulated to the Lenders on February 10, 2009 (including the “ballot for holders of bank loan claims” and the other exhibits attached thereto).

 

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“ Bankruptcy Code ” means United States Code entitled “Bankruptcy”, as now and/or hereinafter effect or any successor thereto.

 

“ Borrower Forbearance Period ” means the period beginning on the Forbearance Effective Date and ending on the earliest to occur of (i) the Holding Company Forbearance Termination Date, (ii) the Other Credit Party Forbearance Termination Date, (iii) the trustee, agent or any of the holders of the Existing Notes or any other Junior Financing commence an involuntary bankruptcy proceeding against the Borrower, and (iv) the commencement of the Borrower Chapter 11 Case (the earliest to occur of clauses (i), (ii), (iii) or (iv) being the “ Borrower Forbearance Termination Date ”).

 

“ Borrower Forbearance Termination Date ” has the meaning provided in the definition of Borrower Forbearance Period.

 

“ Borrower Chapter 11 Case ” means the case to be, or thereafter that has been, commenced by the Borrower under chapter 11 of the Bankruptcy Code.

 

“ Cash Collateral Stipulation ” has the meaning provided in the definition of Other Credit Party Forbearance Period.

 

“ Chapter 11 Cases ” means the Borrower Chapter 11 Case and the Holding Company Chapter 11 Cases.

 

“ Confirmation Order ” means the confirmation order in the Borrower Chapter 11 Case confirming the Plan.

 

“ Credit Facilities Term Sheet ” means the Summary of Terms and Conditions for the Amended and Restated Secured Credit Facilities in the form of Exhibit E hereto, as the same may be amended or modified with the consent of the Borrower and the Required Lenders (or, to the extent required by the Bankruptcy Code or other applicable law, the Requisite Lenders).

 

“ Existing Notes Indentures ” has the meaning provided in Section 2(d).

 

 “ Forbearance Default ” means (i) the occurrence of any Event of Default (including, without limitation, the failure to pay accrued but unpaid interest on the Loans and scheduled repayments of the Term Loans when and as due but excluding the Potential Specified Defaults), or (ii) any representation, warranty or certification made or deemed made by the Borrower or any other Credit Party in connection with this Forbearance Agreement (other than the Permitted Exceptions) shall be false in any material respect on the date as of which made or deemed made.

 

“ Forbearance Effective Date ” has the meaning provided in Section 17.

 

“ Holding Company Forbearance Period ” means the period beginning on the Forbearance Effective Date and ending on the earliest to occur of (i) the Borrower Forbearance Termination Date, (ii) the Other Credit Party Forbearance Termination Date, and (iii) the commencement of the Holding Company Chapter 11 Cases (the earliest to occur of clauses (i), (ii) or (iii) being the “ Holding Company Forbearance Termination Date ”).

 

“ Holding Company Forbearance Termination Date ” has the meaning provided in the definition of Holding Company Forbearance Period.

 

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“ Holding Company Chapter 11 Cases ” means the cases to be, or thereafter that has been, commenced by the Holding Companies under chapter 11 of Bankruptcy Code.

 

“ Non-Funding Lender ” mean each Revolving Credit Lender that failed to fund Revolving Credit Loans requested by the Borrower pursuant to that certain Committed Loan Notice, dated December 18, 2008, in respect of a Revolving Credit Borrowing aggregating $11,579,210.90.

 

“ Other Credit Party Forbearance Period ” means the period beginning on the Forbearance Effective Date and ending on the earliest to occur of:

 

(i) any Forbearance Default;

 

(ii) the Administrative Agent’s receipt from the Borrower of a Payment Notice or the making of any payment (including interest) on the Existing Notes or any other Junior Financing by the Loan Parties, any of their Subsidiaries or the Permitted Holders;

 

(iii) the trustee, agent or any of the holders of the Existing Notes or any other Junior Financing commence an involuntary bankruptcy proceeding against the Borrower which is neither dismissed nor converted to a voluntary chapter 11 proceeding of the Borrower prior to the earlier of (i) entry of an order for relief in such involuntary proceeding and (ii) the 60th day after the date of filing of the involuntary petition;

 

(iv) 11:59 p.m. (New York City time) on March 3, 2009 (or, if the Borrower shall have obtained (and at all times thereafter maintain) a forbearance (the “ Initial Existing Notes Forbearance ”) with respect to all defaults that have arisen (or may arise prior to March 31, 2009) under the Existing Notes Indentures (as a result the failure to pay scheduled interest on the Existing Notes when and as due or otherwise) on terms satisfactory to the Administrative Agent, March 31, 2009), unless the Petition Filing Date shall have occurred at or prior to such time on March 3, 2009 (or March 31, 2009, as the case may be); provided , however , that, if (x) the forbearance agreements with respect to the Existing Notes Indentures provide for continued forbearance on terms satisfactory to the Administrative Agent to a specified time after March 31, 2009 (the “ Additional Existing Notes Forbearance ”)  and (y) each of the Solicitation Materials (as defined in the Credit Facilities Term Sheet), the Credit Facilities Term Sheet and the Bank Solicitation Statement shall have been modified prior to 11:59 p.m. (New York City time) on March 2, 2009 (or, if the Initial Existing Notes Forbearance is obtained, March 30, 2009) to reflect an identical deadline for the occurrence of the Petition Filing Date, such time of termination shall instead be the earlier of (1) such specified time after March 31, 2009 (the “ Extended Forbearance Deadline ”) and (2) 11:59 p.m. (New York City time) on April 15, 2009, unless the Petition Filing Date shall have occurred at or prior to such time;

 

(v) any amendments or modifications to the Plan having been made on or after the Petition Filing Date and prior to the time of the effectiveness of the Plan and the Confirmation Order (such time of effectiveness, the “ Plan Effective Time ”), without the consent of the Administrative Agent (acting at the direction of the Required Lenders), unless such amendments or modifications are not inconsistent with the terms and conditions of the Credit Facilities Term Sheet (it being understood that the foregoing agreements limiting amendments and modifications to the Plan are in addition to (and do not constitute a waiver of) the Lenders’ rights under Bankruptcy Code Section 1127,

 

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Bankruptcy Rule 3019, any other applicable Bankruptcy Code provision or Bankruptcy Rule or applicable law);

 

(vi) 11:59 p.m. (New York City time) on September 30, 2009, unless the Plan Effective Time has occurred at or prior to such time;

 

(vii) any amendments or modifications to the Plan or the Confirmation Order having been made after the Plan Effective Date (other than technical modifications that are not adverse to the interests of the Lenders) without the consent of the Required Lenders (or, to the extent required by the Bankruptcy Code, Bankruptcy Rules or other applicable law, the Requisite Lenders);

 

(viii) the earlier of (a) 10 days following the Plan Effective Time and (b) October 10, 2009, unless the Restructuring Transactions shall have been consummated in accordance with the terms and conditions therefor set forth in the Credit Facilities Term Sheet;

 

(ix) 11:59 p.m. (New York City time) on the third Business Day following the Petition Filing Date, unless the Loan Parties and the Administrative Agent shall have entered into a stipulation or form of agreed order for adequate protection and use of cash collateral as approved on an interim and final order basis and, in each case, in form and substance reasonably satisfactory to the Administrative Agent (the “ Cash Collateral Stipulation ”) at or prior to such time;

 

(x) the occurrence of any event of default under, and as defined in, the Cash Collateral Stipulation; and

 

(xi) fifteen (15) Business Days after delivery of written notice by the Administrative Agent (acting at the direction of Required Lenders (determined for this purpose only as if the reference to 50% in the definition thereof were instead 66-2/3%)) to any Loan Party of the occurrence of a Material Adverse Effect in respect of the Guarantors, taken as a whole.

 

“ Other Credit Party Forbearance Termination Date ” means the first to occur of the times or events described in clauses (i) through (xi) in the definition of Other Credit Party Forbearance Period.

 

“ Payment Notice ” has the meaning provided in Section 4(g).

 

“ Permitted Exceptions ” has the meaning provided in Section 2(d).

 

“ Petition Filing Date ” means the date upon which the Borrower’s Chapter 11 Case and the Holding Company Chapter 11 Cases are commenced by the filing of a voluntary petition or the voluntary conversion of an involuntary bankruptcy petition.

 

“ Plan ” means the Plan of Reorganization of the Borrower attached as Exhibit D hereto.

 

“ Plan Effective Time ” has the meaning provided in the definition of “Other Credit Party Forbearance Period”.

 

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“ Potential Pre-Forbearance Default ” means any Event of Default described in items (i) and (vi) of Exhibit B hereto.

 

“ Potential Specified Default ” means any Event of Default described on Exhibit B hereto.

 

“ Requisite Lenders ” means, as of any date of determination, Lenders (i) which hold at least 66-2/3% of the sum of (x) the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) on such date and (y) the aggregate unused Revolving Credit Commitments (if any) on such date, in each case that vote in connection with the approval of Amended and Restated Credit Agreement and the Plan in the Chapter 11 Cases and (ii) represent more than 50% in number of the Lenders that vote in connection with the approval of Amended and Restated Credit Agreement and the Plan in the Chapter 11 Cases.

 

“ Restructuring Transactions ” has the meaning provided in the Credit Facilities Term Sheet.

 

“ Waiver Period ” means the period commencing on December 30, 2008 and ending on the earlier to occur of (i) the Borrower Forbearance Termination Date, (ii) the Holding Company Forbearance Termination Date and (iii) the Other Credit Party Forbearance Termination Date (such earlier date, the “ Waiver Termination Date ”).

 

“ Waiver Termination Date ” has the meaning provided in the definition of Waiver Period.

 

SECTION 3.  Amendments to Credit Agreement .  Effective as of and for the period commencing on the Forbearance Effective Date, the following provisions of the Credit Agreement shall be amended as set forth below (which amendments are in addition to those amendments, modifications and waivers contained in the Forbearance Agreement, which shall remain in full force and effect).  For the avoidance of doubt, the Credit Agreement shall remain amended as set forth in this Section 3 after each Applicable Forbearance Termination Date, and the amendments in this Section 3 shall not operate as a waiver of any Default or Event of Default.

 

(a)    Amendments to Section 1.01 . (i) The definition of “ Applicable Rate ” is amended by adding the following sentence at the end of said definition:

 

“Notwithstanding the foregoing, on and after the Borrower Forbearance Termination Date, the “Applicable Rate” shall mean a percentage per annum equal to (A) for Eurodollar Loans, 4.50%, (B) for Base Rate Loans, 3.50%, (C) for Letter of Credit fees, 4.50% and (D) for commitment fees, 0.375% (it being understood that (x) the “Applicable Rate” (as determined in this Agreement prior to the Borrower Forbearance Termination Date) shall be applicable for all periods prior to the Borrower Forbearance Termination Date and (y) the “Applicable Rate” (as determined in this Agreement after giving effect to the Borrower Forbearance Termination Date) shall be applicable for all periods on and after the Borrower Forbearance Termination Date).”

 

(ii)           The definition of “ Base Rate ” is deleted in its entirety and replaced by the following:

 

“ Base Rate ” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus ½

 

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of 1% and (c) on and after the Borrower Forbearance Termination Date, the Adjusted LIBO Rate for a Eurocurrency Loan denominated in dollars with a one-month interest period commencing on such day plus 1.0%. For purposes of this definition, the Adjusted LIBO Rate shall be determined using the LIBO Rate as otherwise determined by the Administrative Agent in accordance with the definition of LIBO Rate, except that (x) if a given day is a Business Day, such determination shall be made on such day (rather than two Business Days prior to the commencement of an Interest Period) or (y) if a given day is not a Business Day, the LIBO Rate for such day shall be the rate determined by the Administrative Agent pursuant to preceding clause (x) for the most recent Business Day preceding such day.  Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or such Adjusted LIBO Rate shall be effective as of the opening of business on the day of such change in the Prime Rate, the Federal Funds Rate or such Adjusted LIBO Rate, respectively.”

 

(iii)          The definition of “ Cash Management Obligations ” is amended by deleting the text “except to the extent that any such obligations are not subject to any Lien in favor of any such Lender or Affiliate of such Lender and such Lender or Affiliate of such Lender and the Borrower or the applicable Restricted Subsidiary have so notified the Administrative Agent in writing” appearing in said definition and inserting the text “, except to the extent that such Lender or Affiliate of such Lender, on the one hand, and the Borrower or the applicable Restricted Subsidiary, on the other hand, agree in writing that any such obligations shall not be secured by any Lien on the Collateral and such Persons shall have delivered such writing to the Administrative Agent” in lieu thereof.

 

(iv)          The definition of “ Default Rate ” is amended by (i) deleting the text “plus (c) 2.0% per annum” appearing in said definition and (ii) deleting the text “plus 2.0% per annum” appearing in said definition.

 

(v)           The definition of “ Interest Period ” is amended by inserting the text “(or, in the case of any Eurodollar Loan disbursed or converted or continued as a Eurodollar Loan on or after the Forbearance Effective Date, one month)” immediately prior to the text “; provided that” appearing in said definition.

 

(vi)          The definition of “ Loan Document ” is amended by inserting the text “the Cash Collateral Stipulation and the Forbearance Agreement” immediately after the words “the Collateral Documents”.

 

(vii)         The definition of “ Interest Payment Date ” is amended by (x) deleting the text “three months” in each of the two places it appears therein and by inserting in lieu thereof the text “one month” and (y) inserting the text “(or, from and after the Forbearance Effective Date, the last Business Day of each calendar month, commencing on the first such date to occur on or after the Forbearance Effective Date)” at the end of clause (b) of said definition.

 

(viii)        The definition of “ Permitted Equity Issuance ” is amended by deleting clause (i) of said definition and inserting the following new clause (i) in lieu thereof:

 

“(i) an issuance of Qualified Equity Interests (x) by the Borrower to the Holding Companies or (y) by the Holding Companies (or after a Qualifying IPO, the Borrower) to managers of the Borrower and its Restricted Subsidiaries as incentive compensation,”

 

(ix)           The definition of “ Threshold Amount ” is amended by deleting the amount “$50,000,000” appearing in said definition and inserting the amount “$10,000,000” in lieu thereof.

 

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(x)            The following new definitions are hereby added in the appropriate alphabetical order:

 

“ Cash Collateral Stipulation ” has the meaning assigned to that term in the Forbearance Agreement.

 

“ CAO Certification ” means, with respect to the financial statements for which such certification is required, the certification of the chief accounting officer of the Borrower that such financial statements fairly present, in all material respects, the financial condition of the Borrower and its Restricted Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to (in the case of unaudited financial statements) changes resulting from audit and normal year-end adjustments and, in the case of monthly financial statements, the absence of footnotes and with respect to the consolidated balance sheet of the Borrower and its Restricted Subsidiaries for each fiscal month and fiscal quarter ending on or after December 31, 2008, such balance sheet shall not reclassify long-term debt as short-term debt solely as a result of the existence of the Potential Specified Defaults (as defined in the Forbearance Agreement).

 

“ MD&A ” means, with respect to financial statements to which it pertains, management’s discussion and analysis of the Borrower’s and its Restricted Subsidiaries’ financial performance for the period covered by such financial statements as compared to projected financial performance for such period.

 

“ Forbearance Agreement ” means the Forbearance Agreement; Waiver; and First Amendment to the Credit Agreement, dated as of March 2, 2009, by and among the Borrower, the Holding Companies, the other Loan Parties, the Lenders party thereto and the Administrative Agent.

 

“ Forbearance Effective Date ” has the meaning assigned to that term in the Forbearance Agreement.

 

(b)           Amendments to Section 2.03 .  (i) Section 2.03(h) is amended by inserting the text “(or, from and after the Forbearance Effective Date, the last Business Day of each calendar month)” immediately after the text “September and December” appearing in said Section.

 

(ii) Section 2.03(i) is amended by inserting the text “(or, from and after the Forbearance Effective Date, the last Business Day of each calendar month)” immediately after the text “September and December” appearing in said Section.

 

(c)    Amendments to Section 2.05 .  (i) Section 2.05(a) is amended by adding the following new clause (iv) at the end of said Section:

 

“(iv) It is understood and agreed that, for all periods from and after the Forbearance Effective Date and prior to the Borrower Forbearance Termination Date, the application of prepayments as provided in Section 2.05(a) shall be subject to the express requirements of Section 4(b) of the Forbearance Agreement and, in the event of any conflict or inconsistency, the provisions of said Section 4(b) of the Forbearance Agreement shall control. On and after the Borrower Forbearance Termination Date, cash payments shall be applied in accordance with the requirements of the Cash Collateral Stipulation.”.

 

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(