SECTION 3.
REPRESENTATIONS AND WARRANTIES.
THE BORROWER HEREBY
REPRESENTS AND WARRANTS TO EACH OF THE OTHER PARTIES HERETO, THAT:
(A)
THIS AMENDMENT CONSTITUTES ITS LEGAL, VALID AND BINDING
OBLIGATION, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS; AND
(B)
ON THE DATE HEREOF, BEFORE AND AFTER GIVING EFFECT TO THIS
AMENDMENT, OTHER THAN AS AMENDED OR WAIVED PURSUANT TO THIS AMENDMENT, NO EARLY
TERMINATION EVENT OR UNMATURED TERMINATION EVENT HAS OCCURRED AND IS CONTINUING.
SECTION 4.
CONDITIONS.
THIS AMENDMENT SHALL BECOME EFFECTIVE ON THE
FIRST BUSINESS DAY (THE "EFFECTIVE DATE") ON WHICH THE ADMINISTRATIVE AGENT OR
ITS COUNSEL HAS RECEIVED COUNTERPART SIGNATURE PAGES OF THIS AMENDMENT, EXECUTED
BY EACH OF THE PARTIES HERETO.
SECTION 5.
REFERENCE TO AND EFFECT ON THE TRANSACTION DOCUMENTS.
(A)
UPON THE EFFECTIVENESS OF THIS AMENDMENT, (I) EACH REFERENCE IN
THE CREDIT AGREEMENT TO "THIS CREDIT AGREEMENT", "THIS AGREEMENT", "HEREUNDER",
"HEREOF", "HEREIN" OR WORDS OF LIKE IMPORT SHALL MEAN AND BE A REFERENCE TO THE
CREDIT AGREEMENT AS AMENDED OR OTHERWISE MODIFIED HEREBY, AND (II) EACH
REFERENCE TO THE CREDIT AGREEMENT IN ANY OTHER TRANSACTION DOCUMENT OR ANY OTHER
DOCUMENT, INSTRUMENT OR AGREEMENT EXECUTED AND/OR DELIVERED IN CONNECTION
THEREWITH, SHALL MEAN AND BE A REFERENCE TO THE CREDIT AGREEMENT AS AMENDED OR
OTHERWISE MODIFIED HEREBY.
(B)
EXCEPT AS SPECIFICALLY AMENDED, TERMINATED OR OTHERWISE MODIFIED
ABOVE, THE TERMS AND CONDITIONS OF THE CREDIT AGREEMENT, OF ALL OTHER
TRANSACTION DOCUMENTS AND ANY OTHER DOCUMENTS, INSTRUMENTS AND AGREEMENTS
EXECUTED AND/OR DELIVERED IN CONNECTION THEREWITH, SHALL REMAIN IN FULL FORCE
AND EFFECT AND ARE HEREBY RATIFIED AND CONFIRMED.
(C)
THE EXECUTION, DELIVERY AND EFFECTIVENESS OF THIS AMENDMENT SHALL
NOT OPERATE AS A WAIVER OF ANY RIGHT, POWER OR REMEDY OF THE ADMINISTRATIVE
AGENT, ANY MANAGING AGENT OR ANY LENDER UNDER THE CREDIT AGREEMENT OR ANY OTHER
TRANSACTION
DOCUMENT OR ANY OTHER DOCUMENT, INSTRUMENT OR AGREEMENT EXECUTED IN CONNECTION
THEREWITH, NOR CONSTITUTE A WAIVER OF ANY PROVISION CONTAINED THEREIN, IN EACH
CASE EXCEPT AS SPECIFICALLY SET FORTH HEREIN.
SECTION 6.
EXECUTION IN COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED
IN ANY NUMBER OF COUNTERPARTS AND BY DIFFERENT PARTIES HERETO IN SEPARATE
COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED AND DELIVERED SHALL BE DEEMED TO BE
AN ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE BUT ONE AND THE
SAME INSTRUMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF A SIGNATURE PAGE TO
THIS AMENDMENT BY TELECOPIER SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY
EXECUTED COUNTERPART OF THIS AMENDMENT.
SECTION 7.
GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.
HEADINGS.
SECTION HEADINGS IN THIS AMENDMENT ARE INCLUDED
HEREIN FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONSTITUTE A PART OF THIS
AMENDMENT FOR ANY OTHER PURPOSE.
SECTION 9.
FEES AND EXPENSES.
(A)
THE BORROWER HEREBY CONFIRMS ITS AGREEMENT TO PAY TO THE
ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE COMMITTED LENDER, A "UPFRONT FEE"
IN THE AMOUNT OF $300,000, SUCH UPFRONT FEE TO BE DUE AND PAYABLE