ENFORCEABLE.
THE CREDIT
AGREEMENT AS AMENDED BY THIS AMENDMENT CONSTITUTES THE LEGAL, VALID AND BINDING
OBLIGATIONS OF THE BORROWER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS LIMITED BY APPLICABLE DEBTOR RELIEF LAWS AND GENERAL PRINCIPLES
OF EQUITY, WITHOUT DEFENSE, COUNTERCLAIM OR OFFSET.
(C)
ALL REPRESENTATIONS AND WARRANTIES OF THE
BORROWER CONTAINED IN THE CREDIT AGREEMENT ARE TRUE AND CORRECT ON AND AS OF THE
DATE HEREOF.
4.
EFFECTIVE DATE.
THIS AMENDMENT WILL
BECOME EFFECTIVE AS OF MAY 27, 2004 (THE "EFFECTIVE DATE"), PROVIDED THAT THE
BANK HAS RECEIVED FROM THE BORROWER A DULY EXECUTED ORIGINAL (OR, IF ELECTED BY
THE BANK, AN EXECUTED FACSIMILE COPY) OF THIS AMENDMENT, TOGETHER WITH A DULY
EXECUTED GUARANTOR ACKNOWLEDGMENT AND CONSENT IN THE FORM ATTACHED HERETO (THE
"CONSENT").
5.
RESERVATION OF RIGHTS.
THE BORROWER
ACKNOWLEDGES AND AGREES THAT THE EXECUTION AND DELIVERY BY THE BANK OF THIS
AMENDMENT SHALL NOT BE DEEMED TO CREATE A COURSE OF DEALING OR OTHERWISE
OBLIGATE THE BANK TO ENTER INTO AMENDMENTS UNDER THE SAME, SIMILAR OR ANY OTHER
CIRCUMSTANCES IN THE FUTURE.
6.
MISCELLANEOUS.
(A)
EXCEPT AS HEREIN EXPRESSLY AMENDED, ALL
TERMS, COVENANTS AND PROVISIONS OF THE CREDIT AGREEMENT ARE AND SHALL REMAIN IN
FULL FORCE AND EFFECT AND ALL REFERENCES THEREIN AND IN THE OTHER LOAN DOCUMENTS
TO SUCH CREDIT AGREEMENT SHALL HENCEFORTH REFER TO THE CREDIT AGREEMENT AS
AMENDED BY THIS AMENDMENT.
THIS AMENDMENT SHALL BE DEEMED INCORPORATED INTO,
AND A PART OF, THE CREDIT AGREEMENT.
THIS AMENDMENT IS A LOAN DOCUMENT.
2
(B)
THIS AMENDMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES HERETO AND TO THE CREDIT AGREEMENT AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
NO THIRD PARTY BENEFICIARIES ARE INTENDED IN
CONNECTION WITH THIS AMENDMENT.
(C)
THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NORTH CAROLINA.
(D)
THIS AMENDMENT MAY BE EXECUTED IN ANY NUMBER
OF COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL SUCH
COUNTERPARTS TOGETHER SHALL CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
EACH OF
THE PARTIES HERETO UNDERSTANDS AND AGREES THAT THIS DOCUMENT (AND ANY OTHER
DOCUMENT REQUIRED HEREIN) MAY BE DELIVERED BY ANY PARTY THERETO EITHER IN THE
FORM OF AN EXECUTED ORIGINAL OR AN EXECUTED ORIGINAL SENT BY FACSIMILE
TRANSMISSION TO BE FOLLOWED PROMPTLY BY MAILING OF A HARD COPY ORIGINAL, AND
THAT RECEIPT BY THE BANK OR THE BORROWER OF A FACSIMILE TRANSMITTED DOCUMENT
PURPORTEDLY BEARING THE SIGNATURE OF THE BANK OR THE BORROWER, AS APPLICABLE,
SHALL BIND THE BANK OR THE BORROWER WITH THE SAME FORCE AND EFFECT AS THE
DELIVERY OF A HARD COPY ORIGINAL.
ANY FAILURE BY THE BANK OR THE BORROWER TO
RECEIVE THE HARD COPY EXECUTED ORIGINAL OF SUCH DOCUMENT SHALL NOT DIMINISH THE
BINDING EFFECT OF RECEIPT OF THE FACSIMILE TRANSMITTED EXECUTED ORIGINAL OF SUCH
DOCUMENT WHICH HARD COPY ORIGINAL WAS NOT RECEIVED BY THE BANK OR THE BORROWER,
AS APPLICABLE.
(E)
THIS AMENDMENT, TOGETHER WITH THE CREDIT
AGREEMENT, CONTAINS THE ENTIRE