Commitment Termination
Date:
3
Usage
Percentage
Unused Line Fee Rate
Less than 50%
0.15
%
Greater than or equal to 50%
0.10
%
2.
AMENDMENT EFFECTIVE.
THIS FIRST AMENDMENT WILL BE EFFECTIVE
WHEN:
(A)
THIS FIRST AMENDMENT HAS BEEN DULY EXECUTED AND DELIVERED BY
BORROWER, THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE LENDERS; AND
(B)
THE BORROWER HAS PAID THE REASONABLE FEES AND EXPENSES OF THE
ADMINISTRATIVE AGENT IN CONNECTION WITH THIS FIRST AMENDMENT.
3.
COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
(A)
THE BORROWER AND EACH OTHER BORROWER PARTY (BY ITS EXECUTION OF
THIS FIRST AMENDMENT), REAFFIRM ALL TERMS, COVENANTS, REPRESENTATIONS AND
WARRANTIES (EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES PERTAIN
SOLELY TO AN EARLIER DATE AS SET FORTH IN THE LOAN DOCUMENTS) THAT THEY MADE IN
THE LOAN DOCUMENTS, AS MODIFIED BY THIS FIRST AMENDMENT.
(B)
THE BORROWER REPRESENTS AND WARRANTS TO THE LENDERS, THE
ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT THAT (I) THE BORROWER HAS THE
LEGAL POWER AND AUTHORITY TO ENTER INTO THIS FIRST AMENDMENT WITHOUT CONSENT OR
APPROVAL BY ANY THIRD PARTY AND (II) THIS FIRST AMENDMENT CONSTITUTES THE LEGAL,
VALID AND BINDING OBLIGATION OF THE BORROWER, ENFORCEABLE AGAINST THE BORROWER
IN ACCORDANCE WITH ITS TERMS, EXCEPT, IN EACH CASE, AS MAY BE LIMITED BY
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS RELATING TO
OR LIMITING CREDITORS' RIGHTS GENERALLY OR BY EQUITABLE PRINCIPLES AFFECTING
ENFORCEABILITY.
(C)
THE BORROWER REPRESENTS AND WARRANTS TO THE LENDERS, THE
ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT THAT, AS OF THE DATE HEREOF, (I)
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING; (II) NO DEFAULT
OR EVENT OF DEFAULT WILL OCCUR AS A RESULT OF THE EXECUTION, DELIVERY AND
PERFORMANCE BY THE BORROWER OF THIS AMENDMENT; (III) THE BORROWER HAS NOT GIVEN
ANY NOTICE OF ANY UNCURED DEFAULT UNDER THE CREDIT AGREEMENT; AND (IV) THERE ARE
NO LEGAL PROCEEDINGS COMMENCED OR THREATENED BY ANY BORROWER PARTY AGAINST THE
LENDERS, THE ADMINISTRATIVE AGENT OR THE COLLATERAL AGENT.
(D)
THE BORROWER CONFIRMS AND ACKNOWLEDGES THAT, AS OF THE DATE
HEREOF, NEITHER IT NOR ANY OTHER BORROWER PARTY HAS ANY OFFSETS, DEFENSES,
CLAIMS, COUNTERCLAIMS, SETOFFS, OR OTHER BASIS FOR REDUCTION WITH RESPECT TO ANY
OF THE OBLIGATIONS.
4
4.
EFFECT UPON LOAN DOCUMENTS.
(A)
EXCEPT AS SPECIFICALLY SET FORTH IN THIS FIRST AMENDMENT, THE LOAN
DOCUMENTS SHALL REMAIN IN FULL FORCE AND EFFECT AND ARE HEREBY RATIFIED AND
CONFIRMED.
(B)
THE PARTIES HERETO SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE
CREDIT AGREEMENT, AS HEREBY AMENDED, IS IN FULL FORCE AND EFFECT IN ACCORDANCE
WITH ITS TERMS AND HAS NOT BEEN MODIFIED, EXCEPT PURSUANT TO THIS FIRST
AMENDMENT.
(C)
ALL REFERENCES TO THE "CREDIT AGREEMENT" IN THE CREDIT AGREEMENT
AND ANY OTHER LOAN DOCUMENT SHALL MEAN AND REFER TO THE CREDIT AGREEMENT, AS
MODIFIED HEREBY.
(D)
THIS FIRST AMENDMENT SHALL BE A LOAN DOCUMENT FOR ALL PURPOSES
UNDER THE CREDIT AGREEMENT.
(E)
EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, THE EXECUTION,
DELIVERY AND EFFECTIVENESS OF THIS FIRST AMENDMENT