RESPONSIBLE OFFICERS OF THE BORROWER AND EACH
GUARANTOR, AND CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATIONS OF THE
BORROWER, ENFORCEABLE AGAINST THE BORROWER IN ACCORDANCE WITH ITS TERMS,
SUBJECT, AS TO ENFORCEMENT OF REMEDIES, TO THE FOLLOWING QUALIFICATIONS:
(I) AN
ORDER OF SPECIFIC PERFORMANCE AND AN INJUNCTION ARE DISCRETIONARY REMEDIES AND,
IN PARTICULAR, MAY NOT BE AVAILABLE WHERE DAMAGES ARE CONSIDERED AN ADEQUATE
REMEDY AT LAW, AND (II) ENFORCEMENT MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY,
LIQUIDATION, REORGANIZATION, RECONSTRUCTION AND OTHER SIMILAR LAWS AFFECTING
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY (INSOFAR AS ANY SUCH LAW RELATES TO
THE BANKRUPTCY, INSOLVENCY OR SIMILAR EVENT OF THE BORROWER);
(D)
THE EXECUTION AND DELIVERY OF THIS AMENDMENT AND PERFORMANCE BY
THE BORROWER UNDER THE CREDIT AGREEMENT, AS AMENDED HEREBY, DOES NOT AND WILL
NOT REQUIRE THE CONSENT OR APPROVAL OF ANY REGULATORY AUTHORITY OR GOVERNMENTAL
AUTHORITY OR AGENCY HAVING JURISDICTION OVER THE BORROWER WHICH HAS NOT ALREADY
BEEN OBTAINED, NOR BE IN CONTRAVENTION OF OR IN CONFLICT WITH THE ARTICLES OF
INCORPORATION OR BY-LAWS OF THE BORROWER, OR ANY PROVISION OF ANY STATUTE,
JUDGMENT, ORDER, INDENTURE, INSTRUMENT, AGREEMENT, OR UNDERTAKING, TO WHICH THE
BORROWER IS PARTY OR BY WHICH THE BORROWER'S ASSETS OR PROPERTIES ARE BOUND; AND
(E)
NO DEFAULT EXISTS BOTH BEFORE AND AFTER GIVING EFFECT TO THIS
AMENDMENT, AND THERE HAS BEEN NO MATERIAL ADVERSE EFFECT BOTH BEFORE AND AFTER
GIVING EFFECT TO THIS AMENDMENT.
4.
CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT.
THE
EFFECTIVENESS OF THIS AMENDMENT IS SUBJECT TO THE FOLLOWING CONDITIONS
PRECEDENT:
(A)
RECEIPT BY LENDERS OF THIS AMENDMENT, DULY EXECUTED AND DELIVERED
BY BORROWER, THE GUARANTORS AND THE LENDERS; AND
(B)
THE BORROWER SHALL HAVE PAID ALL FEES AND EXPENSES REQUIRED TO BE
PAID IN CONNECTION WITH THIS AMENDMENT ON THE DATE HEREOF, INCLUDING WITHOUT
LIMITATION (I) AN AMENDMENT FEE OF $10,000 FOR EACH LENDER AND (II) ALL
REASONABLE FEES, COSTS AND EXPENSES OF CLOSING, INCLUDING ALL REASONABLE LEGAL
FEES OF LENDERS' COUNSEL, PRESENTED AS OF THE DATE OF THIS AMENDMENT.
5.
GUARANTOR ACKNOWLEDGMENT.
(A)
EACH OF THE GUARANTORS HEREBY ACKNOWLEDGES THAT IT HAS REVIEWED
THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT AND THIS AMENDMENT.
EACH OF
THE GUARANTORS HEREBY CONFIRMS THAT THE SUBSIDIARY GUARANTY, AS APPLICABLE, TO
WHICH IT IS A PARTY OR OTHERWISE
2
BOUND WILL CONTINUE TO GUARANTEE, AS THE CASE MAY BE, TO THE FULLEST EXTENT
POSSIBLE IN ACCORDANCE WITH SUCH GUARANTEE THE PAYMENT AND PERFORMANCE OF ALL
"GUARANTIED OBLIGATIONS" UNDER EACH OF THE GUARANTEES, AS THE CASE MAY BE (IN
EACH CASE AS SUCH TERMS ARE DEFINED IN THE APPLICABLE GUARANTEE), INCLUDING
WITHOUT LIMITATION THE PAYMENT AND PERFORMANCE OF ALL SUCH "OBLIGATIONS" UNDER
EACH OF THE GUARANTEES, AS THE CASE MAY BE, IN RESPECT OF THE OBLIGATIONS OF THE
BORROWER NOW OR HEREAFTER EXISTING UNDER OR IN RESPECT OF THE CREDIT AGREEMENT
AND THE NOTES DEFINED THEREIN.
(B)
EACH OF THE GUARANTORS ACKNOWLEDGES AND AGREES THAT ANY OF THE
GUARANTEES TO WHICH IT IS A PARTY OR OTHERWISE BOUND SHALL CONTINUE IN FULL