THIS EIGHTH AMENDMENT (THE "RESTATED CREDIT AGREEMENT") HAD
IT BEEN IN EFFECT AT THE TIME OF THE OCCURRENCE OF SUCH DEFAULT OR EVENT OF
DEFAULT.
IN ADDITION, THE LENDERS HEREBY WAIVE ANY DEFAULT OR EVENT OF DEFAULT
ARISING UNDER SECTION 8.01(D) OF THE CREDIT AGREEMENT TO THE EXTENT THAT THE
REPRESENTATION, WARRANTY OR CERTIFICATION WHICH IS THE SUBJECT OF SUCH DEFAULT
OR EVENT OF DEFAULT IS MADE WITH RESPECT TO A COVENANT, TERM AGREEMENT OR
PROVISION OF THE CREDIT AGREEMENT WHICH WAS APPLICABLE UNDER THE CREDIT
AGREEMENT PRIOR TO ITS RESTATEMENT IN THE RESTATED CREDIT AGREEMENT BUT WHICH IS
NOT APPLICABLE UNDER THE RESTATED CREDIT AGREEMENT.
EXCEPT AS SET FORTH IN THE
IMMEDIATELY PRECEDING SENTENCE, NOTHING CONTAINED HEREIN SHALL BE DEEMED A
WAIVER OF (OR OTHERWISE AFFECT THE ADMINISTRATIVE AGENT'S OR THE LENDERS'
ABILITY TO ENFORCE) ANY DEFAULT OR EVENT OF DEFAULT UNDER THE RESTATED CREDIT
AGREEMENT, WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE.
5.
REPRESENTATIONS AND WARRANTIES.
THE
BORROWER HEREBY REPRESENTS AND WARRANTS, AS OF THE EFFECTIVE DATE (AS DEFINED IN
SECTION 7 BELOW), TO THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS AS
FOLLOWS:
(A)
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED
AND IS CONTINUING.
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY
THE BORROWER OF THIS EIGHTH AMENDMENT HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
CORPORATE AND OTHER ACTION AND DO NOT AND WILL NOT REQUIRE ANY REGISTRATION
WITH, CONSENT OR APPROVAL OF, NOTICE TO OR ACTION BY, ANY PERSON (INCLUDING ANY
GOVERNMENTAL AUTHORITY) IN ORDER TO BE EFFECTIVE AND ENFORCEABLE.
THE CREDIT
AGREEMENT AS AMENDED BY THIS EIGHTH AMENDMENT CONSTITUTES A LEGAL, VALID AND
BINDING OBLIGATION OF THE BORROWER, ENFORCEABLE AGAINST THE BORROWER IN
ACCORDANCE WITH ITS RESPECTIVE TERMS, WITHOUT DEFENSE, COUNTERCLAIM OR OFFSET
EXCEPT AS SUCH ENFORCEMENT MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION OR OTHER SIMILAR LAWS RELATING TO OR LIMITING CREDITORS' RIGHTS
GENERALLY OR BY EQUITABLE PRINCIPLES RELATING TO ENFORCEABILITY WHETHER
ENFORCEMENT IS SOUGHT IN A PROCEEDING AT LAW OR IN EQUITY.
(C)
AFTER GIVING EFFECT TO THIS EIGHTH
AMENDMENT, ALL REPRESENTATIONS AND WARRANTIES MADE BY IT CONTAINED IN THE CREDIT
AGREEMENT ARE TRUE AND
2
CORRECT AS THOUGH MADE ON AND AS OF THE EFFECTIVE DATE (EXCEPT TO THE EXTENT
SUCH REPRESENTATIONS AND WARRANTIES SPECIFICALLY RELATE TO AN EARLIER DATE, IN
WHICH CASE THEY WERE TRUE AND CORRECT AS OF SUCH EARLIER DATE).
(D)
IT IS ENTERING INTO THIS EIGHTH AMENDMENT ON
THE BASIS OF ITS OWN INVESTIGATION AND FOR ITS OWN REASONS, WITHOUT RELIANCE
UPON THE ADMINISTRATIVE AGENT, ANY LENDER (EXCEPT FOR PERFORMANCE OF THE TERMS
HEREOF APPLICABLE TO THEM) OR ANY OTHER PERSON.
6.
AMENDMENT FEE.
IN CONSIDERATION OF THE
EXECUTION OF THIS EIGHTH AMENDMENT, THE BORROWER AGREES TO PAY, AS A CONDITION
TO THE EFFECTIVENESS OF THIS EIGHTH AMENDMENT, TO THE ADMINISTRATIVE AGENT (I)
FOR THE BENEFIT OF EACH LENDER, AN AMENDMENT FEE EQUAL TO 0.15 % OF THE
COMMITMENT OF EACH SUCH LENDER AND (II) SUCH OTHER FEES FOR THE BENEFIT OF THE
ADMINISTRATIVE AGENT