March
, 2007, executed by Borrower, Lender and Agent.
'Eleventh Amendment Effective Date' means the 'Effective Date' as defined in the
Eleventh Amendment."
ARTICLE III
Conditions Precedent
3.01
CONDITIONS TO EFFECTIVENESS.
NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, THE EFFECTIVENESS OF THIS AMENDMENT IS SUBJECT
TO THE SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT, UNLESS SPECIFICALLY
WAIVED IN WRITING BY AGENT:
(A)
AGENT SHALL HAVE RECEIVED, IN FORM AND
SUBSTANCE SATISFACTORY TO AGENT AND DULY EXECUTED BY EACH PARTY THERETO:
(I)
THIS AMENDMENT, AND
(II)
FOURTH AMENDED AND RESTATED REVOLVING NOTE
IN THE FORM OF EXHIBIT A ATTACHED HERETO; AND
(III)
AMENDED AND RESTATED TERM NOTE IN THE FORM
OF EXHIBIT B ATTACHED HERETO; AND
(IV)
SUCH ADDITIONAL DOCUMENTS, INSTRUMENTS AND
INFORMATION AS AGENT OR ITS LEGAL COUNSEL, PATTON BOGGS LLP, MAY REQUEST; AND
(B)
ALL CORPORATE PROCEEDINGS TAKEN IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT AND THE
AGREEMENTS DESCRIBED IN CLAUSE (A) ABOVE AND ALL DOCUMENTS, INSTRUMENTS AND
OTHER LEGAL MATTERS INCIDENT THERETO SHALL BE SATISFACTORY TO AGENT AND ITS
LEGAL COUNSEL, PATTON BOGGS LLP.
ARTICLE IV
NO Waiver
4.01
NOTHING CONTAINED HEREIN SHALL BE CONSTRUED AS A
WAIVER BY AGENT OR ANY LENDER OF ANY COVENANT OR PROVISION OF THE LOAN
AGREEMENT, THE OTHER LOAN DOCUMENTS, THIS AMENDMENT, OR OF ANY OTHER CONTRACT OR
INSTRUMENT BETWEEN BORROWER, AGENT AND/OR ANY LENDER, AND AGENT'S OR ANY
LENDER'S FAILURE AT ANY TIME OR TIMES HEREAFTER TO REQUIRE STRICT PERFORMANCE BY
BORROWER OF ANY PROVISION THEREOF SHALL NOT WAIVE, AFFECT OR DIMINISH ANY RIGHT
OF AGENT AND/OR ANY LENDER TO THEREAFTER DEMAND STRICT COMPLIANCE THEREWITH.
AGENT AND LENDERS HEREBY RESERVE ALL RIGHTS GRANTED UNDER THE LOAN AGREEMENT,
THE OTHER LOAN DOCUMENTS, THIS AMENDMENT AND ANY OTHER CONTRACT OR INSTRUMENT
BETWEEN BORROWER, AGENT AND/OR ANY LENDER.
4
ARTICLE V
Ratifications, Representations and Warranties
5.01
RATIFICATIONS.
THE TERMS AND PROVISIONS SET FORTH
IN THIS AMENDMENT SHALL MODIFY AND SUPERSEDE ALL INCONSISTENT TERMS AND
PROVISIONS SET FORTH IN THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND
EXCEPT AS EXPRESSLY MODIFIED AND SUPERSEDED BY THIS AMENDMENT, THE TERMS AND
PROVISIONS OF THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE RATIFIED AND
CONFIRMED AND SHALL CONTINUE IN FULL FORCE AND EFFECT.
BORROWER, AGENT AND
LENDERS AGREE THAT THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED
HEREBY, SHALL CONTINUE TO BE LEGAL, VALID, BINDING AND ENFORCEABLE IN ACCORDANCE
WITH THEIR RESPECTIVE TERMS.
5.02
REPRESENTATIONS AND WARRANTIES.
BORROWER HEREBY
REPRESENTS AND WARRANTS TO AGENT AND LENDERS THAT (A) THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AMENDMENT AND ANY AND ALL OTHER LOAN DOCUMENTS EXECUTED
AND/OR DELIVERED IN CONNECTION HEREWITH HAVE BEEN AUTHORIZED BY ALL REQUISITE
CORPORATE ACTION ON THE PART OF BORROWER AND WILL NOT VIOLATE THE CERTIFICATE OF
INCORPORATION OR BYLAWS OF BORROWER; (B) THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN THE LOAN AGREEMENT, AS AMENDED HEREBY, AND ANY OTHER LOAN DOCUMENT
ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE DATE HEREOF AND
ON AND AS OF THE