ADMINISTRATIVE AGENT SHALL HAVE RECEIVED SUCH EVIDENCE OF THE
VALID EXISTENCE AND GOOD STANDING OF THE LOAN PARTIES EXECUTING ANY OF THE
AMENDMENT DOCUMENTS AS THE ADMINISTRATIVE AGENT SHALL REQUEST.
(IV)
THE COMPANY SHALL HAVE SUBMITTED TO THE ADMINISTRATIVE AGENT AN
IRREVOCABLE NOTICE PURSUANT TO SECTION 6.1.1 OF THE CREDIT AGREEMENT,
PERMANENTLY REDUCING THE REVOLVING COMMITMENT TO $75,000,000.
THE
ADMINISTRATIVE AGENT AND LENDERS HEREBY WAIVE THE FIVE BUSINESS DAYS NOTICE
REQUIREMENT IN CONNECTION WITH SUCH NOTICE.
(V)
THE COMPANY SHALL HAVE PAID ALL FEES REQUIRED UNDER THAT LETTER
DATED OCTOBER 26, 2009, AMONG BANC OF AMERICA SECURITIES LLC, THE ADMINISTRATIVE
AGENT AND THE COMPANY.
(VI)
THE COMPANY SHALL HAVE PAID OR REIMBURSED TO THE ADMINISTRATIVE
AGENT ALL REASONABLE AND DOCUMENTED COSTS AND ATTORNEYS' FEES INCURRED BY THE
ADMINISTRATIVE AGENT IN CONNECTION WITH THIS AMENDMENT AND THE OTHER AMENDMENT
DOCUMENTS.
(VII)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED, IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO IT, SUCH ADDITIONAL OPINIONS, APPROVALS,
CONSENTS, DOCUMENTS AND OTHER INFORMATION AS THE ADMINISTRATIVE AGENT OR ANY
LENDER SHALL REASONABLY REQUEST.
(B)
FOR THE AVOIDANCE OF DOUBT, THE AMENDMENTS SET FORTH IN SECTIONS
2(A) AND 2(C) SHALL BE DEEMED EFFECTIVE AS OF SEPTEMBER 30, 2009 AND THEREAFTER.
5.
REPRESENTATIONS AND WARRANTIES.
TO INDUCE THE ADMINISTRATIVE
AGENT AND THE UNDERSIGNED LENDERS TO EXECUTE THIS AMENDMENT, THE COMPANY
REPRESENTS AND WARRANTS AS FOLLOWS:
(A)
THE COMPANY IS DULY AUTHORIZED TO EXECUTE AND DELIVER THIS
AMENDMENT AND THE OTHER AMENDMENT DOCUMENTS, AND TO PERFORM ITS OBLIGATIONS
HEREUNDER AND THEREUNDER.
(B)
THE REPRESENTATIONS AND WARRANTIES IN THE LOAN DOCUMENTS
(INCLUDING BUT NOT LIMITED TO SECTION 9 OF THE CREDIT AGREEMENT), AS AMENDED
HEREBY, ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS WITH THE SAME EFFECT AS
THOUGH MADE ON AND AS OF THE DATE OF THIS AMENDMENT (EXCEPT TO THE EXTENT STATED
TO RELATE TO A SPECIFIC EARLIER DATE, IN WHICH CASE SUCH REPRESENTATIONS AND
WARRANTIES WERE TRUE AND CORRECT AS OF SUCH EARLIER DATE).
6.
AFFIRMATION.
EXCEPT AS EXPRESSLY AMENDED HEREBY OR BY THE OTHER
AMENDMENT DOCUMENTS, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE AND
SHALL CONTINUE IN FULL FORCE AND EFFECT AND THE COMPANY HEREBY FULLY RATIFIES
AND AFFIRMS EACH LOAN DOCUMENT TO WHICH IT IS A PARTY.
ANY REFERENCE TO THE
CREDIT AGREEMENT FOUND IN THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL
BE A REFERENCE TO THE CREDIT AGREEMENT AS AMENDED HEREBY.
THIS AMENDMENT SHALL
CONSTITUTE A LOAN DOCUMENT FOR PURPOSES OF THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
6
7.
COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED IN TWO OR MORE
COUNTERPARTS, EACH OF WHICH SHALL CONSTITUTE AN ORIGINAL, BUT ALL OF WHICH WHEN
TAKEN TOGETHER SHALL CONSTITUTE ONE INSTRUMENT.
DELIVERY OF AN EXECUTED
COUNTERPART OF THIS AMENDMENT BY FACSIMILE OR ELECTRONIC MAIL SHALL BE EFFECTIVE
AS DELIVERY OF AN ORIGINAL COUNTERPART.
8.
HEADINGS.
THE HEADINGS AND CAPTIONS OF THIS AMENDMENT ARE FOR
THE PURPOSES OF REFERENCE ONLY AND SHALL NOT AFFECT THE CONSTRUCTION OF, OR BE
TAKEN INTO CONSIDERATION IN INTERPRETING, THIS