OF THIS AMENDMENT NO.
3 SIGNED ON BEHALF OF SUCH PARTY;
(B)
ALL CORPORATE AND OTHER PROCEEDINGS TAKEN OR TO BE TAKEN IN
CONNECTION WITH THIS AMENDMENT NO. 3 AND ALL DOCUMENTS INCIDENTAL THERETO,
WHETHER OR NOT REFERRED TO HEREIN, SHALL BE REASONABLY SATISFACTORY IN FORM AND
SUBSTANCE TO THE ADMINISTRATIVE AGENT; AND
(C)
THE REPRESENTATIONS AND WARRANTIES IN SECTION 2 OF THIS AMENDMENT
NO. 3 SHALL BE TRUE AND CORRECT.
Upon satisfaction of the conditions precedent set forth above, the
Administrative Agent shall promptly notify the Borrower and the Lenders of its
determination that this Amendment No. 3 has become effective, which
determination shall, absent manifest error, be conclusive and binding on the
Borrower and the Lenders for all purposes.
In addition, the Borrower agrees to
pay a fee of $100,000 in consideration for the execution and effectiveness of
this Amendment No. 3, such fee to be due and payable on Friday, October 6, 2006;
provided that the Borrower shall have no liability for such fee if the Amendment
No. 3 Effective Date does not occur.
SECTION 4.
CREDIT AGREEMENT.
EXCEPT AS EXPRESSLY SET FORTH HEREIN,
THIS AMENDMENT NO. 3 SHALL NOT BY IMPLICATION OR OTHERWISE LIMIT, IMPAIR,
CONSTITUTE A WAIVER OF, OR OTHERWISE AFFECT THE RIGHTS AND REMEDIES OF THE
LENDERS, THE ADMINISTRATIVE AGENT, THE BORROWER OR ANY OTHER CREDIT PARTY UNDER
THE CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT, AND SHALL NOT ALTER, MODIFY,
AMEND OR IN ANY WAY AFFECT ANY OF THE TERMS, CONDITIONS, OBLIGATIONS, COVENANTS
OR AGREEMENTS CONTAINED IN THE CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT,
ALL OF WHICH ARE RATIFIED AND AFFIRMED IN ALL RESPECTS AND SHALL CONTINUE IN
FULL FORCE AND EFFECT.
NOTHING HEREIN SHALL BE DEEMED TO ENTITLE THE BORROWER
TO ANY FUTURE CONSENT TO, OR WAIVER, AMENDMENT, MODIFICATION OR OTHER CHANGE OF,
ANY OF THE TERMS, CONDITIONS, OBLIGATIONS, COVENANTS OR AGREEMENTS CONTAINED IN
THE CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT IN SIMILAR OR DIFFERENT
CIRCUMSTANCES.
AFTER THE AMENDMENT NO. 3 EFFECTIVE DATE, ANY REFERENCE TO THE
CREDIT AGREEMENT SHALL MEAN THE CREDIT AGREEMENT AS MODIFIED HEREBY, PROVIDED
THAT ANY REFERENCE IN THE CREDIT AGREEMENT TO THE DATE OF THE CREDIT AGREEMENT,
AS MODIFIED HEREBY, SHALL IN ALL INSTANCES REMAIN AS OF JANUARY 25, 2006, AND
REFERENCES IN THE CREDIT AGREEMENT TO "THE DATE HEREOF" AND "THE DATE OF THIS
AGREEMENT," AND PHRASES OF SIMILAR IMPORT, SHALL IN ALL INSTANCES BE AND
CONTINUE TO REFER TO JANUARY 25, 2005, AND NOT THE DATE OF THIS AMENDMENT NO.
3.
THIS AMENDMENT NO. 3 SHALL CONSTITUTE A "CREDIT DOCUMENT" FOR ALL PURPOSES
OF THE CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS.
SECTION 5.
GOVERNING LAW.
THIS AMENDMENT NO. 3 AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
2
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT NO. 3
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK