AND (II) AND 2 HERALD MEZZ TO ENTER
INTO THE CDO LC GUARANTEE - 2 HERALD MEZZ;
14
(F)
THE BORROWERS SHALL HAVE PAID TO THE ADMINISTRATIVE AGENT AN
AMOUNT EQUAL TO $225,000 IN SATISFACTION OF THE EXPENSES DUE AND OWING THROUGH
THE DATE OF THIS AMENDMENT UNDER SECTION 26 OF THIS AMENDMENT.
(G)
THE BORROWERS SHALL HAVE PAID THE ADMINISTRATIVE AGENT AN AMOUNT
EQUAL TO $100,000, IN FULL SATISFACTION OF ALL UNPAID COMMITMENT AND APPRAISAL
FEES WHICH ARE DUE AND OWING TO THE ADMINISTRATIVE AGENT THROUGH THE DATE OF
THIS AMENDMENT; AND
(H)
THE BORROWERS AND THE GUARANTORS SHALL HAVE DELIVERED SUCH LEGAL
OPINIONS, UCC-3 AMENDMENTS, OFFICERS CERTIFICATES AND OTHER SUPPORTING DOCUMENTS
OR INSTRUMENTS WHICH THE ADMINISTRATIVE AGENT MAY REASONABLY REQUEST.
SECTION 23.
REPRESENTATIONS AND WARRANTIES.
EACH BORROWER AND EACH GUARANTOR
HEREBY REPRESENTS AND WARRANTS TO THE ADMINISTRATIVE AGENT, AS OF THE DATE
HEREOF AND AS OF THE AMENDMENT EFFECTIVE DATE, THAT (I) EACH OF THE
REPRESENTATIONS AND WARRANTIES MADE BY THE BORROWERS AND THE GUARANTORS IN EACH
CREDIT DOCUMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS IF MADE ON AND
AS OF THE DATE OF THIS AMENDMENT; (II) EACH BORROWER AND EACH GUARANTOR HAS
PERFORMED IN ALL MATERIAL RESPECTS ALL AGREEMENTS AND SATISFIED ALL CONDITIONS
THAT THE CREDIT DOCUMENTS PROVIDE SHALL BE PERFORMED OR SATISFIED BY THE
BORROWERS AND GUARANTORS; AND (III) NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED
AND IS CONTINUING.
SECTION 24.
LIMITED EFFECT.
EXCEPT AS EXPRESSLY AMENDED AND MODIFIED BY THIS
AMENDMENT, THE CREDIT AGREEMENT AND EACH OF THE OTHER CREDIT DOCUMENTS SHALL
CONTINUE TO BE, AND SHALL REMAIN, IN FULL FORCE AND EFFECT IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS; PROVIDED, HOWEVER, THAT UPON THE AMENDMENT EFFECTIVE
DATE, EACH REFERENCE THEREIN AND HEREIN TO THE "CREDIT DOCUMENTS" SHALL BE
DEEMED TO INCLUDE, IN ANY EVENT, THIS AMENDMENT AND EACH REFERENCE TO THE
"CREDIT AGREEMENT" IN ANY OF THE CREDIT DOCUMENTS SHALL BE DEEMED TO BE A
REFERENCE TO THE CREDIT AGREEMENT AS AMENDED HEREBY.
SECTION 25.
COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED BY EACH OF THE
PARTIES HERETO ON ANY NUMBER OF SEPARATE COUNTERPARTS, EACH OF WHICH SHALL BE AN
ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF A SIGNATURE PAGE TO THIS
AMENDMENT IN PORTABLE DOCUMENT FORMAT (PDF) OR BY FACSIMILE TRANSMISSION SHALL
BE EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED ORIGINAL COUNTERPART THEREOF.
SECTION 26.
EXPENSES.
THE BORROWERS AND THE GUARANTORS AGREE TO PAY AND
REIMBURSE THE LENDERS AND THE ADMINISTRATIVE AGENT FOR REASONABLE OUT-OF-POCKET
COSTS AND EXPENSES INCURRED BY THE LENDERS AND THE ADMINISTRATIVE AGENT IN
CONNECTION WITH THE PREPARATION, EXECUTION AND DELIVERY OF THIS AMENDMENT,
INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND DISBURSEMENTS OF CADWALADER,
WICKERSHAM & TAFT LLP, COUNSEL TO THE LENDERS AND THE ADMINISTRATIVE AGENT.
15
SECTION 27.
GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURES FOLLOW]