0.15% of such Lender's Revolving Credit Commitment or, (b) after
December 5, 2008 and on or prior to December 12, 2008, an amendment fee equal to
0.10% of such Lender's Revolving Credit Commitment.
This Amendment is subject
to the provisions of Section 9.01 of the Credit Agreement.
SECTION 3.
Representations and Warranties of the
Borrowers.
Each Borrower represents and warrants as follows:
(A)
EACH OF THE COMPANY AND ITS MATERIAL
SUBSIDIARIES (I) IS DULY ORGANIZED, VALIDLY EXISTING AND, IF APPLICABLE, IN GOOD
STANDING, UNDER THE LAWS OF THE JURISDICTION OF ITS INCORPORATION OR
ORGANIZATION, (II) HAS THE CORPORATE OR COMPARABLE POWER AND AUTHORITY TO OWN
ITS PROPERTY AND ASSETS AND TO TRANSACT THE BUSINESS IN WHICH IT IS ENGAGED AND
PRESENTLY PROPOSES TO ENGAGE AND (III) IS DULY QUALIFIED AS A FOREIGN
CORPORATION AND, IF APPLICABLE, IN GOOD STANDING IN EACH JURISDICTION WHERE THE
OWNERSHIP, LEASING OR OPERATION OF PROPERTY OR THE CONDUCT OF ITS BUSINESS
REQUIRES SUCH QUALIFICATION, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED WOULD
NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(B)
EACH BORROWER HAS THE CORPORATE OR
COMPARABLE POWER AND AUTHORITY TO EXECUTE, DELIVER AND PERFORM THE TERMS AND
PROVISIONS OF THIS AMENDMENT AND EACH OF THE LOAN DOCUMENTS TO WHICH IT IS A
PARTY AND HAS TAKEN ALL NECESSARY CORPORATE OR COMPARABLE ACTION TO AUTHORIZE
THE EXECUTION, DELIVERY AND PERFORMANCE BY IT OF THIS AMENDMENT AND EACH OF SUCH
LOAN DOCUMENTS, AS AMENDED HEREBY.
EACH BORROWER AND EACH SUBSIDIARY GUARANTOR
HAS DULY EXECUTED AND DELIVERED THIS AMENDMENT AND EACH OF THE LOAN DOCUMENTS TO
WHICH IT IS A PARTY, AND THIS AMENDMENT AND EACH OF SUCH LOAN DOCUMENTS, AS
AMENDED HEREBY, CONSTITUTES ITS LEGAL, VALID AND BINDING OBLIGATION ENFORCEABLE
IN ACCORDANCE WITH ITS TERMS, EXCEPT TO THE EXTENT THAT THE ENFORCEABILITY
THEREOF MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER SIMILAR LAWS GENERALLY AFFECTING CREDITORS' RIGHTS AND BY
EQUITABLE PRINCIPLES (REGARDLESS OF WHETHER ENFORCEMENT IS SOUGHT IN EQUITY OR
AT LAW).
(C)
NEITHER THE EXECUTION, DELIVERY OR
PERFORMANCE BY ANY BORROWER OF THIS AMENDMENT OR THE LOAN DOCUMENTS, AS AMENDED
HEREBY, TO WHICH IT IS A PARTY, NOR COMPLIANCE BY IT WITH THE TERMS AND
PROVISIONS THEREOF, (I) CONTRAVENES ANY PROVISION OF ANY LAW, STATUTE, RULE OR
REGULATION OR ANY MATERIAL ORDER, WRIT, INJUNCTION OR DECREE OF ANY COURT OR
GOVERNMENTAL INSTRUMENTALITY, (II) CONFLICTS OR IS INCONSISTENT WITH OR RESULTS
IN ANY BREACH OF ANY OF THE TERMS, COVENANTS, CONDITIONS OR PROVISIONS OF, OR
CONSTITUTES A DEFAULT UNDER, OR RESULTS IN THE CREATION OR IMPOSITION OF (OR THE
OBLIGATION TO CREATE OR IMPOSE) ANY LIEN UPON ANY OF THE PROPERTY OR ASSETS OF
THE COMPANY OR ANY OF ITS MATERIAL SUBSIDIARIES PURSUANT TO THE TERMS OF ANY
MATERIAL INDENTURE, MORTGAGE, DEED OF TRUST, CREDIT AGREEMENT, LOAN AGREEMENT OR
ANY OTHER MATERIAL AGREEMENT, CONTRACT OR INSTRUMENT TO WHICH THE COMPANY OR ANY
OF ITS MATERIAL SUBSIDIARIES IS A PARTY OR BY WHICH IT OR ANY OF ITS PROPERTY OR