AMENDMENT HAS BEEN DULY EXECUTED AND DELIVERED BY BORROWER AND CONSTITUTES THE
VALID AND LEGALLY BINDING OBLIGATION OF BORROWER, EXCEPT AS SUCH ENFORCEABILITY
MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM
OR OTHER SIMILAR LAWS, NOW OR HEREAFTER IN EFFECT, RELATING TO OR AFFECTING THE
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY, AND EXCEPT THAT THE REMEDY OF
SPECIFIC PERFORMANCE AND OTHER EQUITABLE REMEDIES ARE SUBJECT TO JUDICIAL
DISCRETION.
ARTICLE 4.
CONDITIONS TO AMENDMENT.
The effectiveness of the amendments contained in Article 1 shall be subject to
the fulfillment of the following conditions precedent:
SECTION 4.1.
AMENDMENT.
BORROWER AND EACH OF THE
LENDERS SHALL HAVE EXECUTED AND DELIVERED TO THE ADMINISTRATIVE AGENT THIS THIRD
AMENDMENT.
SECTION 4.2.
NO DEFAULT. THERE SHALL EXIST NO
EVENT OF DEFAULT OR DEFAULT UNDER THE CREDIT AGREEMENT.
8
SECTION 4.3.
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE 4 HEREOF SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS ON THE DATE HEREOF AS IF MADE ON THE DATE
HEREOF.
SECTION 4.4.
CERTIFICATE.
THE BORROWER SHALL
HAVE DELIVERED A CERTIFICATE SIGNED ON BEHALF OF THE BORROWER, BY A RESPONSIBLE
OFFICER AND THE SECRETARY OR AN ASSISTANT SECRETARY OF THE BORROWER, DATED THE
DATE HEREOF (THE STATEMENTS MADE IN SUCH CERTIFICATE SHALL BE TRUE ON AND AS OF
THE DATE HEREOF), CERTIFYING AS TO (1) THE TRUTH OF THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN THE LOAN DOCUMENTS AS THOUGH MADE ON AND AS OF THE DATE
HEREOF, EXCEPT FOR ANY REPRESENTATION OR WARRANTY LIMITED BY ITS TERMS TO A
SPECIFIC DATE AND EXCEPT FOR CHANGES IN THE ORDINARY COURSE OF BUSINESS THAT ARE
NOT PROHIBITED BY THE CREDIT AGREEMENT, (2) THE ABSENCE OF ANY EVENT OCCURRING
AND CONTINUING, OR RESULTING FROM THE TRANSACTIONS CONTEMPLATED BY THIS THIRD
AMENDMENT, THAT CONSTITUTES A DEFAULT OR AN EVENT OF DEFAULT AND (3) THE
CERTIFICATION OF THE NAMES AND TRUE SIGNATURES OF THE OFFICERS OF THE BORROWER
AUTHORIZED TO SIGN THIS THIRD AMENDMENT AND EACH OTHER LOAN DOCUMENT TO WHICH
THEY ARE OR ARE TO BE PARTIES AND THE OTHER DOCUMENTS TO BE DELIVERED HEREUNDER
AND THEREUNDER.
SECTION 4.5.
AMENDMENT FEES.
THE BORROWER SHALL
HAVE PAID AN AMENDMENT FEE TO THE ADMINISTRATIVE AGENT, FOR THE ACCOUNT OF EACH
LENDER WHICH HAS APPROVED THIS THIRD AMENDMENT, AS EVIDENCED BY SUCH LENDER'S
TIMELY EXECUTION AND DELIVERY OF A COUNTERPART SIGNATURE PAGE TO THIS THIRD
AMENDMENT, IN AN AMOUNT EQUAL TO 0.10% (I.E. 10 BASIS POINTS) OF THE AGGREGATE
OF SUCH APPROVING LENDERS' COMMITMENTS IMMEDIATELY AFTER THE EFFECTIVENESS OF
THIS THIRD AMENDMENT.
SECTION 4.6.
FEES AND EXPENSES. THE BORROWER
SHALL HAVE PAID ALL FEES REFERRED TO IN THE FEE LETTER, DATED AS OF THE DATE
HEREOF, FROM FLEET TO BORROWER, AT SUCH TIMES AND IN SUCH MANNER AS SET FORTH
THEREIN AND ALL ACCRUED FEES AND EXPENSES OF THE ADMINISTRATIVE AGENT AND THE
LENDERS (INCLUDING REASONABLE FEES AND EXPENSES OF COUNSEL FOR THE
ADMINISTRATIVE AGENT).
ARTICLE 5.
MISCELLANEOUS.
SECTION 5.1.
CONTINUED EFFECTIVENESS.
EXCEPT AS
SPECIFICALLY AMENDED HEREIN, THE CREDIT AGREEMENT AND