Lender an amendment fee in an amount equal to (a)
.20% times (b) such Lender's Commitment.
Section 9.
Benefits.
This Amendment shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
Section 10.
GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 11.
Effect; Ratification.
Except for the amendments expressly set
forth and referred to above, the provisions of the Credit Agreement and the
other Loan Documents shall remain unchanged and in full force and effect, and
the amendments contained herein shall be deemed to have prospective application
only, unless otherwise specifically stated herein.
The Company and the Borrower
hereby (a) ratify and reaffirm each and every term, covenant and condition set
forth in the Credit Agreement and the other Loan Documents effective as of the
date hereof and (b) acknowledges and reaffirms its Obligations and its
continuing obligations owing to the Administrative Agent and the Lenders under
the Loan Documents.
Section 12.
RELEASE.
IN CONSIDERATION OF THE AMENDMENTS CONTAINED HEREIN THE
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, THE COMPANY AND THE BORROWER HEREBY
IRREVOCABLY RELEASE AND FOREVER DISCHARGE ADMINISTRATIVE AGENT AND LENDERS AND
EACH OF THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, SUCCESSORS, ASSIGNS,
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES AND ATTORNEYS (EACH, A
"RELEASED PERSON") OF AND FROM ALL DAMAGES, LOSSES, CLAIMS, DEMANDS,
LIABILITIES, OBLIGATIONS, ACTIONS AND CAUSES OF ACTION WHATSOEVER WHICH THE
BORROWER OR THE COMPANY MAY NOW HAVE OR CLAIM TO HAVE ON AND AS OF THE DATE
HEREOF AGAINST ANY RELEASED PERSON, WHETHER PRESENTLY KNOWN OR UNKNOWN,
LIQUIDATED OR UNLIQUIDATED, SUSPECTED OR UNSUSPECTED, CONTINGENT OR
NON-CONTINGENT, AND OF EVERY NATURE AND EXTENT WHATSOEVER (COLLECTIVELY,
"CLAIMS") OTHER THAN ANY CLAIM ARISING SOLELY OUT OF THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF SUCH RELEASED PERSON.
EACH OF THE BORROWER AND THE
COMPANY REPRESENTS AND WARRANTS TO ADMINISTRATIVE AGENT AND LENDERS THAT IT HAS
NOT GRANTED OR PURPORTED TO GRANT TO ANY OTHER PERSON ANY INTEREST WHATSOEVER IN
ANY CLAIM, AS SECURITY OR OTHERWISE.
EACH OF THE COMPANY AND THE BORROWER
JOINTLY AND SEVERALLY SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS EACH RELEASED
PERSON FROM AND AGAINST ANY AND ALL CLAIMS AND ANY LOSS, COST, LIABILITY, DAMAGE
OR EXPENSE (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES) INCURRED BY ANY
RELEASED PERSON IN INVESTIGATING, PREPARING FOR, DEFENDING AGAINST, PROVIDING
EVIDENCE OR PRODUCING DOCUMENTS IN CONNECTION WITH OR TAKING OTHER ACTION IN
RESPECT OF ANY COMMENCED OR THREATENED CLAIM.
Section 13.
Counterparts.
This Amendment may be executed
in any number of counterparts, each of which shall be deemed to be an original
and shall be binding upon all parties, their successors and assigns.
Any
signatures delivered by a party hereto by facsimile transmission or by
electronic transmission shall be deemed an original signature hereto.
[Signatures on Next Page]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to