MATTERS.
1.1.
DEFINITIONS.
THE DEFINITION OF "MATURITY DATE" IN § 1.1 OF THE
CREDIT AGREEMENT IS HEREBY DELETED IN ITS ENTIRETY AND THE FOLLOWING SUBSTITUTED
IN ITS PLACE AND STEAD:
"Maturity Date.
June 5, 2008, or such earlier date on which the Loans shall
become due and payable pursuant to the terms hereof."
1.2.
NOTWITHSTANDING ANYTHING IN § 2.2 TO THE CONTRARY, LENDERS
ACKNOWLEDGE AND AGREE THAT THE (I) INCREASE TO THE TOTAL COMMITMENT EFFECTUATED
PURSUANT TO THE TERMS AND PROVISIONS OF THIS AMENDMENT SHALL BE AVAILABLE TO
BORROWER FROM TIME TO TIME FOR A PERIOD OF ONE HUNDRED EIGHTY (180) DAYS FROM
THE DATE OF THIS AMENDMENT, WITHOUT REGARD TO THE FUNDING EXPIRY DATE AND (II)
AS A RESULT OF THE OPERATION OF § 2.2(B) A PORTION OF CERTAIN EXISTING LENDERS'
COMMITMENTS SHALL AGAIN BE AVAILABLE UNDER THE CREDIT AGREEMENT TO THE EXTENT OF
THE AMOUNT RECEIVED BY SUCH EXISTING LENDER IN CONNECTION WITH THE REALLOCATION
CONTEMPLATED IN SAID § 2.2(B).
ANY BORROWINGS WITH RESPECT TO SUCH INCREASE TO
THE TOTAL COMMITMENT SHALL BE SUBJECT TO THE SATISFACTION OF THE TERMS AND
CONDITIONS OF THE CREDIT AGREEMENT, INCLUDING, WITHOUT LIMITATION, § 2.5.
BORROWER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF § 2.2(C) CONTINUE TO
APPLY, SUCH THAT, IF ON THE FUNDING EXPIRY DATE, THE OUTSTANDING OBLIGATIONS ARE
LESS THAN $150,000,000, THE TOTAL COMMITMENT SHALL REDUCE BY AN AMOUNT EQUAL TO
THE EXCESS OF (X) $150,000,000 OVER (Y) THE OUTSTANDING OBLIGATIONS ON THE
FUNDING EXPIRY DATE.
IN SUCH EVENT, EACH LENDER'S COMMITMENT SHALL BE REDUCED
PRO RATA IN ACCORDANCE WITH ITS RESPECTIVE COMMITMENT PERCENTAGE.
1.3.
§ 2.3 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY THE ADDITION OF
THE FOLLOWING PARAGRAPH AT THE END THEREOF:
"Upon receipt of an affidavit (including appropriate indemnification) of an
officer of any Lender as to the loss, theft, destruction or mutilation of such
Lender's Note, and, in the case of such loss, theft, destruction or mutilation,
upon cancellation of such Note, Borrower will issue, in lieu thereof, a
replacement note in the same principal amount thereof and otherwise of like
tenor."
2
1.4.
§ 2.4 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY THE ADDITION OF
THE FOLLOWING CLAUSE (D) AT THE END THEREOF:
"(D)
ALL AGREEMENTS BETWEEN BORROWER AND GUARANTORS, ON THE ONE HAND,
AND AGENT AND THE LENDERS, ON THE OTHER HAND, ARE EXPRESSLY LIMITED SO THAT IN
NO CONTINGENCY OR EVENT WHATSOEVER, WHETHER BY REASON OF ACCELERATION OF
MATURITY OF THE OBLIGATIONS OR OTHERWISE, SHALL THE AMOUNT PAID OR AGREED TO BE
PAID TO THE LENDERS FOR THE USE OR THE FORBEARANCE OF THE INDEBTEDNESS EVIDENCED
UNDER THIS AGREEMENT AND THE NOTES EXCEED THE MAXIMUM PERMISSIBLE UNDER LAW.
AS
USED HEREIN, THE TERM 'APPLICABLE LAW' SHALL MEAN THE LAW IN EFFECT AS OF THE
DATE HEREOF; PROVIDED, HOWEVER, THAT IN THE EVENT THERE IS A CHANGE IN THE LAW
WHICH RESULTS IN A HIGHER PERMISSIBLE RATE OF INTEREST, THEN THIS AGREEMENT AND
THE NOTES SHALL BE GOVERNED BY SUCH NEW