OR BEFORE OCTOBER 25, 2007 IN FORM AND SUBSTANCE SATISFACTORY TO LENDER.
SECTION 3.02.
LIMITATION OF WAIVER. THE WAIVER GRANTED IN SECTION 3.01
OF THIS WAIVER AGREEMENT SHALL BE LIMITED STRICTLY AS WRITTEN AND SHALL NOT BE
DEEMED TO CONSTITUTE A WAIVER OF, OR ANY CONSENT TO NONCOMPLIANCE WITH, ANY TERM
OR PROVISION OF THIS WAIVER AGREEMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN
DOCUMENT EXCEPT AS EXPRESSLY SET FORTH HEREIN. FURTHER, THE WAIVER GRANTED IN
SECTION 3.01 OF THIS WAIVER AGREEMENT SHALL NOT CONSTITUTE A WAIVER OF ANY
DEFAULT OR EVENT OF DEFAULT ARISING AS A RESULT OF ANY FUTURE VIOLATION OF
SECTION 7.23 OR ANY OTHER TERM OR PROVISION OF THE CREDIT AGREEMENT, OR ANY
RIGHTS OR REMEDIES AS A RESULT OF AN EVENT OF DEFAULT, OR THE VIOLATION OF ANY
OTHER TERM OR PROVISION OF THIS WAIVER AGREEMENT.
ARTICLE IV
Amendment Fee
SECTION 4.01.
AMENDMENT FEE. THE BORROWERS SHALL PAY TO THE LENDER, IN
ADDITION TO ALL OTHER FEES AND CHARGES SET FORTH HEREIN AND THE OTHER LOAN
DOCUMENTS, A NON-REFUNDABLE AMENDMENT FEE EQUAL TO $25,000 (THE "AMENDMENT
FEE"), WHICH AMENDMENT FEE WILL BE CHARGED TO THE LOAN ACCOUNT. THE AMENDMENT
FEE SHALL BE IN ADDITION TO ANY OTHER FEES, COSTS, OR EXPENSES PAYABLE PURSUANT
TO THE CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS (INCLUDING LEGAL FEES AND
EXPENSES), IS FULLY-EARNED AS OF THE DATE HEREOF, AND SHALL BE NON-REFUNDABLE
FOR ANY REASON WHATSOEVER.
ARTICLE V
Conditions Precedent
SECTION 5.01.
CONDITIONS PRECEDENT. THIS WAIVER AGREEMENT SHALL NOT BE
BINDING UPON THE LENDER UNTIL EACH OF THE FOLLOWING CONDITIONS PRECEDENT HAVE
BEEN SATISFIED IN FORM AND SUBSTANCE SATISFACTORY TO THE LENDER:
(I)
THE BORROWERS SHALL HAVE DELIVERED TO THE LENDER A FULLY EXECUTED
ORIGINAL COPY OF THIS WAIVER AGREEMENT;
2
(II)
THE BORROWERS SHALL HAVE PAID TO THE LENDER THE AMENDMENT FEE AND
ALL OTHER FEES, COSTS, AND EXPENSES OWED TO AND/OR INCURRED BY THE LENDER IN
CONNECTION WITH THIS WAIVER AGREEMENT;
(III)
NO DEFAULT OR EVENT OF DEFAULT, EXCEPT FOR THE COVENANT
VIOLATION, SHALL HAVE OCCURRED AND BE CONTINUING; AND
(IV)
ALL PROCEEDINGS TAKEN IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS WAIVER AGREEMENT AND ALL DOCUMENTATION AND OTHER LEGAL
MATTERS INCIDENT THERETO SHALL BE SATISFACTORY TO THE LENDER IN ITS SOLE AND
ABSOLUTE DISCRETION.
ARTICLE VI
Miscellaneous
SECTION 6.01.
ACKNOWLEDGMENT. EACH BORROWER HEREBY REPRESENTS AND
WARRANTS THAT THE EXECUTION AND DELIVERY OF THIS WAIVER AGREEMENT AND COMPLIANCE
BY SUCH BORROWER WITH ALL OF THE PROVISIONS OF THIS WAIVER AGREEMENT:
(A) ARE
WITHIN ITS POWERS AND PURPOSES; (B) HAVE BEEN DULY AUTHORIZED OR APPROVED BY
SUCH BORROWER; AND (C) WHEN EXECUTED AND DELIVERED BY OR ON BEHALF OF SUCH
BORROWER, WILL CONSTITUTE VALID AND BINDING OBLIGATIONS OF THE BORROWER,
ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS. EACH BORROWER REAFFIRMS ITS
OBLIGATION TO PAY ALL AMOUNTS DUE THE LENDER UNDER THE LOAN DOCUMENTS IN
ACCORDANCE WITH THE TERMS THEREOF, AS MODIFIED HEREBY.
SECTION 6.02.
REPRESENTATIONS AND WARRANTIES. THE REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN AND IN THE CREDIT AGREEMENT, AS