TO THE PRODUCT OF (I) 15 BASIS POINTS
MULTIPLIED BY (II) THE SUM OF (X) THE PORTION OF THE PRINCIPAL BALANCE OF THE
TERM LOAN HELD BY SUCH LENDER PLUS (Y) THE REVOLVING LOAN COMMITMENT OF SUCH
LENDER, WHICH FEE SHALL BE NON-REFUNDABLE AND FULLY EARNED UPON EXECUTION HEREOF
BY THE LENDERS.
(C)
THE EXECUTION AND DELIVERY OR SATISFACTION
OF EACH OF THE AGREEMENTS, DOCUMENTS OR OTHER INSTRUMENTS OR CONDITIONS SET
FORTH IN THE CLOSING CHECKLIST ATTACHED HERETO AS ANNEX A (THE "CLOSING
CHECKLIST"), IN A FORM, SUBSTANCE AND MANNER SATISFACTORY TO AGENT.
SECTION 4.
LIMITED WAIVER AND AMENDMENT.
THE LIMITED
WAIVER AND AMENDMENTS SET FORTH HEREIN ARE EFFECTIVE SOLELY FOR THE PURPOSES SET
FORTH HEREIN AND SHALL BE LIMITED PRECISELY AS WRITTEN AND SHALL NOT BE DEEMED
TO (I) EXCEPT AS EXPRESSLY PROVIDED IN THIS AMENDMENT, BE A CONSENT TO ANY
AMENDMENT, WAIVER OR MODIFICATION OF ANY TERM OR CONDITION OF THE CREDIT
AGREEMENT OR OF ANY OTHER LOAN DOCUMENT OR (II) PREJUDICE ANY RIGHT OR RIGHTS
THAT AGENT OR LENDERS MAY NOW HAVE OR MAY HAVE IN THE FUTURE UNDER OR IN
CONNECTION WITH THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT.
SECTION 5.
REPRESENTATIONS AND WARRANTIES OF CREDIT
PARTIES.
(A)
THE EXECUTION, DELIVERY AND PERFORMANCE BY
EACH CREDIT PARTY OF THIS AMENDMENT HAS BEEN DULY AUTHORIZED BY ALL NECESSARY
CORPORATE ACTION AND THIS AMENDMENT IS A LEGAL, VALID AND BINDING OBLIGATION OF
SUCH CREDIT PARTY ENFORCEABLE AGAINST SUCH CREDIT PARTY IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS THE ENFORCEMENT THEREOF MAY BE SUBJECT TO (I) THE EFFECT OF ANY
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAW
AFFECTING CREDITORS' RIGHTS GENERALLY AND (II) GENERAL PRINCIPLES OF EQUITY
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS SOUGHT IN A PROCEEDING IN EQUITY OR
AT LAW);
(B)
EACH OF THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN THE CREDIT AGREEMENT IS TRUE AND CORRECT IN ALL MATERIAL RESPECTS
ON AND AS OF THE DATE HEREOF AS IF MADE ON THE DATE HEREOF, EXCEPT TO THE EXTENT
THAT SUCH REPRESENTATIONS AND WARRANTIES EXPRESSLY RELATE TO AN EARLIER DATE;
AND
(C)
NEITHER THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AMENDMENT BY EACH CREDIT PARTY NOR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY DOES OR SHALL CONTRAVENE, RESULT IN A BREACH
OF, OR VIOLATE (I) ANY PROVISION OF SUCH CREDIT PARTY'S CERTIFICATE OR ARTICLES
OF INCORPORATION OR BYLAWS, (II) ANY LAW OR REGULATION, OR ANY ORDER OR DECREE
OF ANY COURT OR GOVERNMENT INSTRUMENTALITY, OR (III) ANY INDENTURE, MORTGAGE,
DEED OF TRUST, LEASE, AGREEMENT OR OTHER INSTRUMENT TO WHICH SUCH CREDIT PARTY
OR ANY OF ITS SUBSIDIARIES IS A PARTY OR BY WHICH SUCH CREDIT PARTY OR ANY OF
ITS SUBSIDIARIES OR ANY OF THEIR PROPERTY IS BOUND, EXCEPT IN ANY SUCH CASE TO
THE EXTENT SUCH CONFLICT OR BREACH HAS BEEN WAIVED BY A WRITTEN WAIVER DOCUMENT,
A COPY OF WHICH HAS BEEN DELIVERED TO AGENT ON OR BEFORE THE DATE HEREOF.
6
SECTION 6.
REFERENCE TO AND EFFECT UPON THE CREDIT
AGREEMENT.
(A)