of
funds on the part of such officer, director, shareholder or employee."
10.
CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT.
THIS FIRST AMENDMENT
SHALL BECOME EFFECTIVE UPON THE DATE (THE "FIRST AMENDMENT EFFECTIVE DATE") WHEN
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED (I) COUNTERPARTS OF THIS FIRST
AMENDMENT DULY EXECUTED BY EACH OF THE BORROWER AND THE ADMINISTRATIVE AGENT AND
CONSENTED TO BY THE REQUIRED BANKS AND (II) AN EXECUTED GUARANTEE AGREEMENT,
SUBSTANTIALLY IN THE FORM OF EXHIBIT A HERETO, FROM THE GUARANTORS, AND (III)
ALL FEES REQUIRED TO BE PAID ON OR BEFORE THE FIRST AMENDMENT EFFECTIVE DATE,
AND ALL EXPENSES REQUIRED TO BE PAID ON OR BEFORE THE FIRST AMENDMENT EFFECTIVE
DATE FOR WHICH INVOICES HAVE BEEN PRESENTED.
5
11.
REPRESENTATIONS AND WARRANTIES.
(A)
NO DEFAULT.
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED
AND BE CONTINUING ON THE FIRST AMENDMENT EFFECTIVE DATE AFTER GIVING EFFECT TO
THE TRANSACTIONS CONTEMPLATED HEREIN.
(B)
REPRESENTATIONS AND WARRANTIES.
EACH OF THE REPRESENTATIONS AND
WARRANTIES MADE BY THE BORROWER AND THE GUARANTORS IN OR PURSUANT TO THE LOAN
DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE
FIRST AMENDMENT EFFECTIVE DATE (AFTER GIVING EFFECT HERETO) AS IF MADE ON AND AS
OF SUCH DATE, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES EXPRESSLY
RELATE TO A PARTICULAR DATE, IN WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES
WERE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH DATE.
12.
PAYMENT OF EXPENSES.
THE BORROWER AGREES TO PAY OR REIMBURSE THE
ADMINISTRATIVE AGENT FOR ALL OF ITS REASONABLE OUT-OF-POCKET COSTS AND EXPENSES
INCURRED IN CONNECTION WITH THIS FIRST AMENDMENT, ANY OTHER DOCUMENTS PREPARED
IN CONNECTION HEREWITH AND THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING,
WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL TO THE
ADMINISTRATIVE AGENT.
13.
CONTINUING EFFECT OF THE LOAN DOCUMENTS.
THIS FIRST AMENDMENT SHALL NOT
CONSTITUTE AN AMENDMENT OR WAIVER OF ANY PROVISION OF THE CREDIT AGREEMENT OR
ANY OTHER LOAN DOCUMENT NOT EXPRESSLY REFERRED TO HEREIN AND SHALL NOT BE
CONSTRUED AS AN AMENDMENT, WAIVER OR CONSENT TO ANY FURTHER OR FUTURE ACTION ON
THE PART OF THE BORROWER OR ANY GUARANTORS THAT WOULD REQUIRE AN AMENDMENT,
WAIVER OR CONSENT OF THE BANKS OR ADMINISTRATIVE AGENT.
EXCEPT AS EXPRESSLY
AMENDED HEREBY, THE PROVISIONS OF THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS ARE AND SHALL REMAIN IN FULL FORCE AND EFFECT.
ANY REFERENCE TO THE
"CREDIT AGREEMENT" IN THE LOAN DOCUMENTS OR ANY RELATED DOCUMENTS SHALL BE
DEEMED TO BE A REFERENCE TO THE CREDIT AGREEMENT AS AMENDED BY THIS FIRST
AMENDMENT.
14.
COUNTERPARTS.
THIS FIRST AMENDMENT MAY BE EXECUTED BY ONE OR MORE OF THE
PARTIES HERETO ON ANY NUMBER OF SEPARATE COUNTERPARTS (INCLUDING BY FACSIMILE),
AND ALL OF SAID COUNTERPARTS TAKEN TOGETHER SHALL BE DEEMED TO CONSTITUTE ONE
AND THE SAME INSTRUMENT.
15.
SEVERABILITY.
ANY PROVISION OF THIS FIRST AMENDMENT WHICH IS PROHIBITED
OR UNENFORCEABLE IN ANY JURISDICTION SHALL, AS TO SUCH JURISDICTION, BE
INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR