Common use of Amendment to Section 12 Clause in Contracts

Amendment to Section 12. Section 12 of the Original Agreement is hereby amended as follows: (a) Section 12(a) of the Original Agreement is hereby amended and restated to read in its entirety as follows: “Subject to the provisions of the last paragraph of Section 22(e), Standby Purchaser on one hand may terminate at any time prior to the Closing Date its rights and obligations hereunder and Additional Purchaser on the other hand may terminate at any time prior to the Closing Date its rights and obligations hereunder by written notice to the Company if there is a Material Adverse Effect or a Market Adverse Effect, in either case that is not cured within twenty-one (21) days after the occurrence thereof (the “Cure Period”), provided that the right to such termination after the occurrence of each Material Adverse Effect or a Market Adverse Effect, which has not been cured within the Cure Period, shall expire seven (7) days after the expiration of such Cure Period.” (b) Section 12(b) of the Original Agreement is hereby amended and restated to read in its entirety as follows: (b) Subject to the provisions of the last paragraph of Section 22(e): (i) if there is a material breach of this Agreement by Standby Purchaser or Additional Purchaser that is not cured within fifteen (15) days after receipt of written notice by such breaching party, the Company may terminate this Agreement with respect to such breaching party by written notice to the other parties hereto; (ii) if there is a material breach of this Agreement by the Company that is not cured within fifteen (15) days after receipt of written notice by the Company, either Standby Purchaser or Additional Purchaser may terminate its rights and obligations hereunder by written notice to the other parties hereto; or (iii) the Company may terminate this Agreement on one hand or either Standby Purchaser or Additional Purchaser may terminate its rights and obligations hereunder on the other hand if the Closing has not occurred on or prior to November 15, 2007, for any reason whatsoever, other than a material breach hereunder by such terminating party or failure of the closing condition specified in Section 9(a)(iv).”

Amendment to Section 12. Section 12 3(a) of the Original Credit Agreement (Termination). Section 12.3(a) of the Credit Agreement is hereby amended and restated in its entirety, to read as follows: (a) Subject to Agent’s, Documentation Agent’s, other Lender Parties’ rights to accelerate the Loans and terminate and cease making Advances upon the occurrence and during the continuation of any Event of Default, this Agreement shall continue in full force and effect until the Maturity Date, unless terminated sooner as provided in this Section 12(a) 12.3. The Credit Parties may not terminate this Agreement without terminating the entire Agreement and repaying all of the Original Obligations in full in cash and terminating or cash collateralizing in accordance with the terms of this Agreement is hereby amended all of the outstanding Letters of Credit. The Credit Parties may terminate this Agreement at any time upon not less than five (5) Business Days’ prior written notice to Agent and restated Documentation Agent and upon full performance and indefeasible payment in full in cash of all Obligations and termination or cash collateralization in accordance with the terms of this Agreement of all outstanding Letters of Credit on or prior to read such 5th Business Day after Receipt by Agent and Documentation Agent of such written notice. Upon the earlier of the Maturity Date or any such termination by the Credit Parties, the obligation of the Lenders to make Advances and issue Letters of Credit shall terminate. All of the Obligations shall be immediately due and payable upon the earlier of (i)(A) with respect to Obligations in its entirety respect of the Revolving Loans, the Revolving Loan Maturity Date, and (B) with respect to Obligations in respect of the Term Loan A, the Term Loan A Maturity Date, or (ii) the termination date stated in any notice of termination, as follows: applicable (the “Subject to Termination Date”). Notwithstanding any other provision of any Loan Document, no termination of this Agreement shall affect any Lender’s, Documentation Agent’s, Agent’s or other Lender Party’s rights or any of the Obligations existing as of the effective date of such termination, and the provisions of the last paragraph Loan Documents shall continue to be fully operative until the Obligations have been fully performed and indefeasibly paid in cash in full and all outstanding Letters of Section 22(eCredit shall have been terminated. The Liens granted to Agent, for the benefit of the Lender Parties, under the Security Documents and the financing statements filed pursuant thereto and the rights and powers of Agent, Documentation Agent, the other Lender Parties and the Term Loan Lenders shall continue in full force and effect until all of the Obligations have been fully performed and indefeasibly paid in full in cash, and all of the Commitments, the outstanding Letters of Credit and this Agreement and the other Loan Documents have been terminated (or in the case of outstanding Letters of Credit, cash collateralized in accordance with the terms of this Agreement). As a condition to the effectiveness of any such termination and, in any event, upon the Termination Date, the Credit Parties shall pledge and furnish to Agent cash collateral, other collateral or a written indemnity (from a financial institution that is acceptable to Agent), Standby Purchaser on one hand in each case acceptable to Agent for indemnity obligations under the Loan Documents as Agent or Documentation Agent may terminate at any time prior to the Closing Date its rights and obligations hereunder and Additional Purchaser on the other hand may terminate at any time prior to the Closing Date its rights and obligations hereunder by written notice to the Company if there is a Material Adverse Effect or a Market Adverse Effect, in either case that is not cured within twenty-one (21) days after the occurrence thereof (the “Cure Period”), provided that the right to such termination after the occurrence of each Material Adverse Effect or a Market Adverse Effect, which has not been cured within the Cure Period, shall expire seven (7) days after the expiration of such Cure Periodreasonably require.” (b) Section 12(b) of the Original Agreement is hereby amended and restated to read in its entirety as follows: (b) Subject to the provisions of the last paragraph of Section 22(e): (i) if there is a material breach of this Agreement by Standby Purchaser or Additional Purchaser that is not cured within fifteen (15) days after receipt of written notice by such breaching party, the Company may terminate this Agreement with respect to such breaching party by written notice to the other parties hereto; (ii) if there is a material breach of this Agreement by the Company that is not cured within fifteen (15) days after receipt of written notice by the Company, either Standby Purchaser or Additional Purchaser may terminate its rights and obligations hereunder by written notice to the other parties hereto; or (iii) the Company may terminate this Agreement on one hand or either Standby Purchaser or Additional Purchaser may terminate its rights and obligations hereunder on the other hand if the Closing has not occurred on or prior to November 15, 2007, for any reason whatsoever, other than a material breach hereunder by such terminating party or failure of the closing condition specified in Section 9(a)(iv).”

Amendment to Section 12. Section 12 1(a) of the Original Loan Agreement. Effective as of the date hereof, Section 12.1(a) of the Loan Agreement is hereby amended and restated in its entirety to read as follows: (a) Section 12(a) This Agreement and the other Financing Agreements shall become effective as of the Original Agreement is hereby amended and restated to read in its entirety as follows: “Subject to the provisions of the last paragraph of Section 22(e), Standby Purchaser on one hand may terminate at any time prior to the Closing Date its rights and obligations hereunder and Additional Purchaser date set forth on the other hand may terminate at any time prior to the Closing Date its rights first page hereof and obligations hereunder by written notice to the Company if there is shall continue in full force and effect for a Material Adverse Effect or a Market Adverse Effectterm ending November 17, in either case that is not cured within twenty-one (21) days after the occurrence thereof 2005 (the “Cure PeriodRenewal Date”), provided that the right and from year to such termination after the occurrence of each Material Adverse Effect or a Market Adverse Effectyear thereafter, which has not been cured within the Cure Period, shall expire seven (7) days after the expiration of such Cure Period.” (b) Section 12(b) of the Original Agreement is hereby amended and restated to read in its entirety as follows: (b) Subject unless sooner terminated pursuant to the provisions of the last paragraph of Section 22(e): (i) if there is a material breach of this Agreement by Standby Purchaser terms hereof. Lender or Additional Purchaser that is not cured within fifteen (15) days after receipt of written notice by such breaching party, the Company Borrower may terminate this Agreement with respect to such breaching party and the other Financing Agreements effective on the Renewal Date or on the anniversary of the Renewal Date in any year by written notice giving to the other parties hereto; party at least sixty (ii60) if there is a material breach of days prior written notice; provided, that, this Agreement by the Company that is not cured within fifteen (15) days after receipt of written notice by the Companyand all other Financing Agreements must be terminated simultaneously. In addition, either Standby Purchaser or Additional Purchaser may terminate its rights and obligations hereunder by written notice to the other parties hereto; or (iii) the Company Borrower may terminate this Agreement on one hand or either Standby Purchaser or Additional Purchaser at any time upon ten (10) days prior written notice to Lender (which notice shall be irrevocable) and Lender may terminate this Agreement at any time on or after an Event of Default; provided, that, in each case, this Agreement and all other Financing Agreements must be terminated simultaneously. Upon the effective date of termination or non-renewal of this Agreement, Borrower shall pay to Lender, in full, all outstanding and unpaid Obligations and shall furnish cash collateral to Lender (or at Lender’s option, a letter of credit issued for the account of Borrower and at Borrower’s expense, in form and substance satisfactory to Lender, by an issuer acceptable to Lender and payable to Lender as beneficiary) in such amounts as Lender determines are reasonably necessary to secure or reimburse Lender from loss, cost, damage or expense, including attorneys’ fees and expenses, in connection with any contingent Obligations, including issued and outstanding Letter of Credit Accommodations and checks or other payments provisionally credited to the Obligations and/or as to which Lender has not yet received final and indefeasible payment. The amount of such cash collateral (or letter of credit, as Lender may determine) as to any Letter of Credit Accommodations shall be in the amount equal to one hundred ten (110%) percent of the amount of the Letter of Credit Accommodations plus the amount of any fees and expenses payable in connection therewith through the end of the latest expiration date of such Letter of Credit Accommodations. Such payments in respect of the Obligations and cash collateral shall be remitted by wire transfer in Federal funds to such bank account of Lender, as Lender may, in its rights discretion, designate in writing to Borrower for such purpose. Interest shall be due until and obligations hereunder on including the other hand next business day, if the Closing has not occurred on or prior amounts so paid by Borrower to November 15, 2007, for any reason whatsoever, other the bank account designated by Lender are received in such bank account later than a material breach hereunder by such terminating party or failure of the closing condition specified in Section 9(a)(iv)12:00 noon time.”

Amendment to Section 12. Section 12 1. Effective as of the Original Agreement is hereby amended as followsdate hereof: (a) Section 12(a12.1(a) of the Original Loan Agreement is hereby amended by deleting the date “November 17, 2005” contained therein and substituting “November 17, 2007” in lieu thereof. (b) Section 12.1(c) of the Loan Agreement is hereby amended and restated to read in its entirety as follows: “Subject to the provisions of the last paragraph of Section 22(e), Standby Purchaser on one hand may terminate at any time prior to the Closing Date its rights and obligations hereunder and Additional Purchaser on the other hand may terminate at any time prior to the Closing Date its rights and obligations hereunder by written notice to the Company if there is a Material Adverse Effect or a Market Adverse Effect, in either case that is not cured within twenty-one (21) days after the occurrence thereof (the “Cure Period”), provided that the right to such termination after the occurrence of each Material Adverse Effect or a Market Adverse Effect, which has not been cured within the Cure Period, shall expire seven (7) days after the expiration of such Cure Period.” (b) Section 12(b) of the Original Agreement is hereby amended and restated to read in its entirety as follows: (bc) Subject to the provisions of the last paragraph of Section 22(e): (i) if there is a material breach of this Agreement by Standby Purchaser or Additional Purchaser that is not cured within fifteen (15) days after receipt of written notice by such breaching party, the Company may terminate this Agreement with respect to such breaching party by written notice to the other parties hereto; (ii) if there is a material breach of this Agreement by the Company that is not cured within fifteen (15) days after receipt of written notice by the Company, either Standby Purchaser or Additional Purchaser may terminate its rights and obligations hereunder by written notice to the other parties hereto; or (iii) the Company may terminate this Agreement on one hand or either Standby Purchaser or Additional Purchaser may terminate its rights and obligations hereunder on the other hand if the Closing has not occurred on or prior to November 15, 2007, If for any reason whatsoever, other than a material breach hereunder by such terminating party or failure this Agreement is terminated prior to the end of the closing condition specified then current term or renewal term of this Agreement, in view of the impracticality and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of Lender’s lost profits as a result thereof, Borrower agrees to pay to Lender, upon the effective date of such termination, an early termination fee in an amount equal to one-half of one percent (0.5%) of the Maximum Credit if the termination occurs on or after the Fourth Amendment Closing Date to and including the date immediately preceding the first anniversary of the Fourth Amendment Closing Date and one-quarter of one percent (0.25%) of the Maximum Credit if the termination occurs on or after the first anniversary of the Fourth Amendment Closing Date to and including the Renewal Date. Such early termination fee shall be presumed to be the amount of damages sustained by Lender as a result of such early termination and Borrower agrees that it is reasonable under the circumstances currently existing. In addition, Lender shall be entitled to such early termination fee upon the occurrence of any Event of Default described in Sections 10.1(g) and 10.1(h) hereof, even if Lender does not exercise its right to terminate this Agreement, but elects, at its option, to provide financing to Borrower or permit the use of cash collateral under the United States Bankruptcy Code. The early termination fee provided for in this Section 9(a)(iv)12.1 shall be deemed included in the Obligations. Notwithstanding anything contained herein to the contrary, the early termination fee shall not apply to any early termination as the result of a complete refinancing of the Loans by Wachovia Bank, National Association.”