ANY GOVERNMENTAL
AUTHORITY IS REQUIRED IN CONNECTION WITH (A) THE EXECUTION, DELIVERY AND
PERFORMANCE BY, OR ENFORCEMENT AGAINST ANY LOAN PARTY OF THIS AMENDMENT NO. 1,
THE CREDIT AGREEMENT AS AMENDED HEREBY OR ANY OTHER LOAN DOCUMENT OR (B) THE
EXERCISE BY THE ADMINISTRATIVE AGENT OR ANY LENDER OF ITS RIGHTS UNDER THIS
AMENDMENT NO. 1, THE CREDIT AGREEMENT AS AMENDED HEREBY OR THE OTHER LOAN
DOCUMENTS OR THE REMEDIES IN RESPECT OF THE COLLATERAL PURSUANT TO THE
COLLATERAL DOCUMENTS.
3
(F)
BINDING AGREEMENTS. THIS AMENDMENT NO. 1
HAS BEEN DULY EXECUTED AND DELIVERED BY EACH LOAN PARTY AND THE CREDIT AGREEMENT
AS AMENDED HEREBY AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE LEGAL, VALID AND
BINDING OBLIGATIONS OF EACH LOAN PARTY, ENFORCEABLE IN ACCORDANCE WITH THEIR
RESPECTIVE TERMS (EXCEPT FOR LIMITATIONS ON ENFORCEABILITY UNDER BANKRUPTCY,
REORGANIZATION, INSOLVENCY AND OTHER SIMILAR LAWS AFFECTING CREDITORS' RIGHTS
GENERALLY AND LIMITATIONS ON THE AVAILABILITY OF THE REMEDY OF SPECIFIC
PERFORMANCE IMPOSED BY THE APPLICATION OF GENERAL EQUITABLE PRINCIPLES).
SECTION 3.
Conditions of Effectiveness.
This
Amendment No. 1 shall become effective as of the date first above written when,
and only when, the Administrative Agent shall have received:
(I)
COUNTERPARTS OF THIS AMENDMENT NO. 1 EXECUTED BY THE
BORROWER AND THE REQUIRED LENDERS OR, AS TO ANY OF THE LENDERS, ADVICE
SATISFACTORY TO THE ADMINISTRATIVE AGENT AND THE BORROWER THAT SUCH LENDER HAS
EXECUTED THIS AMENDMENT NO. 1, AND
(II)
THE CONSENT ATTACHED HERETO (THE "CONSENT") EXECUTED
BY EACH OF THE GUARANTORS,
except that Section 1 shall only become effective (the "Amendment No. 1
Effective Date" ) when and only when, in addition, the Administrative Agent
shall have received:
(I)
AN OFFICER'S CERTIFICATE, DATED AS OF
THE AMENDMENT NO. 1 EFFECTIVE DATE, DULY EXECUTED AND DELIVERED BY THE BORROWER,
AS TO:
(A)
resolutions of the board of directors of the
Borrower then in full force and effect authorizing, to the extent relevant, the
execution and delivery of this Amendment No. 1 and any other documents necessary
to effect this Amendment No. 1 and the performance of the obligations of the
Borrower hereunder;
(B)
the incumbency and signatures of those
persons as authorized to act with respect to this Amendment No. 1; and
(C)
the absence of any event occurring and
continuing, or resulting from this Amendment No. 1, that constitutes a Default.
(II)
FOR THE ACCOUNT OF EACH LENDER EXECUTING
THIS AMENDMENT NO. 1 ON OR BEFORE 5:00 PM NEW YORK CITY TIME, ON OCTOBER 28,
2009, A FEE EQUAL TO 0.25% OF SUCH LENDER'S COMMITMENT, AND
(III)
ALL REASONABLE OUT-OF-POCKET FEES AND
EXPENSES OF THE ADMINISTRATIVE AGENT AND EACH LENDER (INCLUDING, BUT NOT LIMITED
TO, ALL REASONABLE FEES AND EXPENSES OF COUNSEL TO THE ADMINISTRATIVE AGENT AND
EACH LENDER, INCLUDING THE FEES AND EXPENSES OF DECHERT, LLP, COUNSEL TO CERTAIN
LENDERS) IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY AND
ADMINISTRATION OF THIS AMENDMENT NO. 1 AND AS OTHERWISE PAYABLE IN ACCORDANCE
WITH THE TERMS OF THE CREDIT AGREEMENT INCLUDING, WITHOUT LIMITATION, THE
REASONABLE