GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER SUCH
ENFORCEABILITY IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW).
SECTION 5.
CONDITIONS.
THIS THIRD AMENDMENT SHALL BE EFFECTIVE UPON THE
FULFILLMENT BY THE BORROWERS, IN A MANNER SATISFACTORY TO AGENT AND THE LENDERS,
OF ALL OF THE FOLLOWING CONDITIONS PRECEDENT SET FORTH IN THIS SECTION 5 (SUCH
DATE, THE "EFFECTIVE DATE"):
5.01
EXECUTION OF THE THIRD AMENDMENT.
EACH OF THE PARTIES HERETO SHALL HAVE
EXECUTED AN ORIGINAL COUNTERPART OF THIS THIRD AMENDMENT AND SHALL HAVE
DELIVERED (INCLUDING BY WAY OF TELEFACSIMILE OR ELECTRONIC MAIL) THE SAME TO
AGENT.
5.02
AMENDMENT FEE.
BORROWERS SHALL HAVE PAID TO AGENT, FOR ITS OWN ACCOUNT,
IN IMMEDIATELY AVAILABLE FUNDS AN AMENDMENT FEE EQUAL TO $15,000.00.
5.03
REPRESENTATIONS AND WARRANTIES.
AS OF THE EFFECTIVE DATE, THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 4 HEREOF SHALL BE TRUE AND
CORRECT.
5.04
COMPLIANCE WITH TERMS.
BORROWERS SHALL HAVE COMPLIED IN ALL RESPECTS
WITH THE TERMS HEREOF AND OF ANY OTHER AGREEMENT, DOCUMENT, INSTRUMENT OR OTHER
WRITING TO BE DELIVERED BY BORROWERS IN CONNECTION HEREWITH.
5.05
DELIVERY OF OTHER DOCUMENTS.
AGENT SHALL HAVE RECEIVED ALL SUCH OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS AS AGENT MAY REASONABLY REQUEST, IN FORM
AND SUBSTANCE REASONABLY SATISFACTORY TO AGENT.
SECTION 6.
MISCELLANEOUS.
6.01
CONTINUING EFFECT.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE CREDIT
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL REMAIN IN FULL FORCE AND EFFECT IN
ACCORDANCE WITH THEIR RESPECTIVE TERMS AND ARE HEREBY RATIFIED AND CONFIRMED IN
ALL RESPECTS.
6.02
NO WAIVER; RESERVATION OF RIGHTS.
THIS THIRD AMENDMENT IS LIMITED AS
SPECIFIED AND THE EXECUTION, DELIVERY AND EFFECTIVENESS OF THIS THIRD AMENDMENT
SHALL NOT OPERATE AS A MODIFICATION, ACCEPTANCE OR WAIVER OF ANY PROVISION OF
THE CREDIT AGREEMENT, OR ANY OTHER LOAN DOCUMENT, EXCEPT AS SPECIFICALLY SET
FORTH HEREIN.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS THIRD AMENDMENT TO THE
CONTRARY, AGENT AND THE LENDERS EXPRESSLY RESERVE THE RIGHT TO EXERCISE ANY AND
ALL OF THEIR RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT, ANY OTHER LOAN
DOCUMENT AND APPLICABLE LAW IN RESPECT OF ANY DEFAULT OR EVENT OF DEFAULT (OTHER
THAN THE SECTION 3.6(B) DEFAULT TO THE EXTENT WAIVED UNDER SECTION 2 HEREOF).
3
6.03
REFERENCES.
(A)
FROM AND AFTER THE EFFECTIVE DATE, (I) THE CREDIT AGREEMENT, THE OTHER
LOAN DOCUMENTS AND ALL AGREEMENTS, INSTRUMENTS AND DOCUMENTS EXECUTED AND
DELIVERED IN CONNECTION WITH ANY OF THE FOREGOING SHALL EACH BE DEEMED AMENDED
HEREBY TO THE EXTENT NECESSARY, IF ANY, TO GIVE EFFECT TO THE PROVISIONS OF THIS
THIRD AMENDMENT AND (II) ALL OF THE TERMS AND PROVISIONS OF THIS THIRD AMENDMENT
ARE HEREBY INCORPORATED BY REFERENCE INTO THE CREDIT AGREEMENT, AS APPLICABLE,
AS IF SUCH TERMS AND PROVISIONS WERE SET FORTH IN FULL THEREIN, AS APPLICABLE.
(B)
FROM AND AFTER THE EFFECTIVE DATE, (I) ALL REFERENCES IN THE CREDIT
AGREEMENT TO "THIS AGREEMENT", "HERETO", "HEREOF", "HEREUNDER" OR WORDS OF LIKE
IMPORT REFERRING TO THE CREDIT AGREEMENT SHALL MEAN THE CREDIT AGREEMENT AS
AMENDED HEREBY AND (II) ALL REFERENCES IN THE CREDIT AGREEMENT,