OF
SECTION 9.10 OF THE LOAN AGREEMENT.
(E)
COMMITMENTS.
SCHEDULE 2.01 TO THE LOAN AGREEMENT IS HEREBY
DELETED IN ITS ENTIRETY AND EXHIBIT A TO THIS AMENDMENT SUBSTITUTED THEREFOR.
(F)
GENERAL.
ALL REFERENCES TO "THIS AGREEMENT" IN THE LOAN
AGREEMENT AND TO "THE LOAN AGREEMENT" IN THE OTHER LOAN DOCUMENTS SHALL BE
DEEMED TO REFER TO THE LOAN AGREEMENT AS AMENDED HEREBY.
2.
CONDITIONS TO EFFECTIVENESS.
THIS AMENDMENT SHALL BE EFFECTIVE
UPON THE SATISFACTION OF EACH OF THE FOLLOWING CONDITIONS:
(A)
THE ADMINISTRATIVE AGENT (OR ITS COUNSEL) SHALL HAVE RECEIVED FROM
EACH PARTY HERETO EITHER (I) A COUNTERPART OF THIS AMENDMENT SIGNED ON BEHALF OF
SUCH PARTY OR (II) WRITTEN EVIDENCE SATISFACTORY TO THE ADMINISTRATIVE AGENT
(WHICH MAY INCLUDE TELECOPY TRANSMISSION OF A SIGNED SIGNATURE PAGE OF THIS
AMENDMENT) THAT SUCH PARTY HAS SIGNED A COUNTERPART OF THIS AMENDMENT.
(B)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED (I) AMENDMENT NO. 3
TO THE MORTGAGE IN FORM AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT
DULY SIGNED ON BEHALF OF BORROWER AND (II) AMENDMENT NO. 2 TO THE SEA COAST
MORTGAGE IN FORM AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT DULY
SIGNED ON BEHALF OF SEA COAST.
(C)
THE LENDERS SHALL BE REASONABLY SATISFIED THAT NO MATERIAL ADVERSE
CHANGE IN THE BUSINESS, ASSETS, OPERATIONS, PROPERTIES, CONDITION (FINANCIAL OR
OTHERWISE), LIABILITIES (INCLUDING CONTINGENT LIABILITIES) OR MATERIAL
AGREEMENTS OF BORROWER AND ITS SUBSIDIARIES HAS OCCURRED SINCE JUNE 30, 2006.
2
(D)
THERE SHALL BE NO INJUNCTION, WRIT, PRELIMINARY RESTRAINING ORDER
OR OTHER ORDER OF ANY NATURE ISSUED BY ANY GOVERNMENTAL AUTHORITY IN ANY RESPECT
AFFECTING THE TRANSACTIONS PROVIDED FOR IN THIS AMENDMENT AND NO ACTION OR
PROCEEDING BY OR BEFORE ANY GOVERNMENTAL AUTHORITY SHALL HAVE BEEN COMMENCED AND
BE PENDING OR, TO THE KNOWLEDGE OF BORROWER, THREATENED, SEEKING TO PREVENT OR
DELAY THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT OR CHALLENGING ANY OTHER
TERMS AND PROVISIONS HEREOF OR THEREOF OR SEEKING ANY DAMAGES IN CONNECTION
HEREWITH OR THEREWITH.
(E)
THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THE LOAN AGREEMENT
SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS, EXCEPT TO THE EXTENT SUCH
REPRESENTATIONS AND WARRANTIES RELATE TO AN EARLIER DATE AND, AFTER GIVING
EFFECT TO THE AMENDMENTS SET FORTH IN SECTION 1 HEREOF, NO DEFAULT OR EVENT OF
DEFAULT SHALL EXIST.
(F)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED ALL AMOUNTS DUE AND
PAYABLE ON OR PRIOR TO THE AMENDMENT NO. 5 EFFECTIVE DATE, INCLUDING, TO THE
EXTENT INVOICED, REIMBURSEMENT OR PAYMENT OF ALL OUT-OF-POCKET EXPENSES REQUIRED
TO BE REIMBURSED OR PAID BY BORROWER HEREUNDER.
(G)
ALL LEGAL MATTERS WITH RESPECT TO AND ALL LEGAL DOCUMENTS
(INCLUDING, BUT NOT LIMITED TO, THE LOAN DOCUMENTS) EXECUTED IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT SHALL BE SATISFACTORY TO COUNSEL
FOR THE ADMINISTRATIVE AGENT.
(H)
BORROWER SHALL HAVE PAID THE REASONABLE FEES AND DISBURSEMENTS OF
COUNSEL TO THE ADMINISTRATIVE AGENT AND THE LENDERS IN CONNECTION WITH THIS
AMENDMENT.
The Administrative Agent shall notify Borrower and the Lenders of the Amendment
No. 5 Effective Date, and such notice