United
States or other jurisdiction asserts a claim that Agent did not properly
withhold tax from amounts paid to or for the account of any Lender due to a
failure on the part of any Lender (because the appropriate form was not
delivered, was not properly executed, or because such Lender failed to notify
the proper Person of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective) such Lender shall indemnify
and hold Agent or the assigning Lender, as applicable, harmless for all amounts
paid, directly or indirectly, by Agent or the assigning Lender, as applicable,
as tax or otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to Agent or the assigning
Lender, as applicable, under this Section 16.11, together with all costs and
expenses (including attorneys fees and expenses). The obligation of the Lenders
under this subsection shall survive the payment of all Obligations and the
resignation or replacement of Agent."
(CC)
SCHEDULE C-1 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY DELETING
SUCH SCHEDULE IN ITS ENTIRETY AND BY INSERTING SCHEDULE C-1 ATTACHED HERETO IN
LIEU THEREOF.
(DD)
SCHEDULE A-1(A),(B) AND (C) OF THE LOAN AGREEMENT ARE HEREBY
DELETED IN THEIR ENTIRETY.
3.
CONDITIONS PRECEDENT TO AMENDMENT. THE SATISFACTION OF EACH OF
THE FOLLOWING SHALL CONSTITUTE CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AMENDMENT AND EACH AND EVERY PROVISION HEREOF:
(A)
AGENT SHALL HAVE RECEIVED THIS AMENDMENT, DULY EXECUTED BY THE
PARTIES HERETO, AND THE SAME SHALL BE IN FULL FORCE AND EFFECT.
(B)
AGENT SHALL HAVE RECEIVED A REAFFIRMATION AND CONSENT
SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT A, DULY EXECUTED AND
DELIVERED BY EACH GUARANTOR.
(C)
AGENT SHALL HAVE RECEIVED AN AMENDMENT FEE FROM BORROWER IN THE
AMOUNT OF $250,000, WHICH AMENDMENT FEE SHALL BE FOR THE ACCOUNT OF THE LENDERS
IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BY AND AMONG AGENT AND THE LENDERS
(IT BEING UNDERSTOOD THAT, BY EXECUTION AND DELIVERY OF THIS AMENDMENT, BORROWER
AUTHORIZES THE AGENT TO CHARGE THE BORROWER'S LOAN ACCOUNT FOR SUCH FEE AND SUCH
AMOUNT SHALL THEREAFTER CONSTITUTE AN ADVANCE AND SHALL ACCRUE INTEREST AT THE
RATE APPLICABLE TO ADVANCES UNDER THE LOAN AGREEMENT IN ACCORDANCE WITH SECTION
2.6 OF THE LOAN AGREEMENT).
(D)
THE REPRESENTATIONS AND WARRANTIES HEREIN AND IN THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON AND AS OF THE DATE HEREOF, AS THOUGH MADE ON SUCH DATE (EXCEPT TO
THE EXTENT THAT SUCH REPRESENTATIONS AND WARRANTIES RELATE SOLELY TO AN EARLIER
DATE).
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(E)
BORROWER SHALL HAVE PAID ALL LEGAL FEES AND RELATED COSTS AND
EXPENSES INCURRED BY AGENT AND LENDERS ON OR BEFORE THE DATE HEREOF.
(F)
AFTER GIVING EFFECT TO THE AMENDMENTS SET FORTH HEREIN, NO
DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING ON THE DATE
HEREOF, NOR SHALL RESULT FROM THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREIN.
(G)
NO INJUNCTION,