PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS
TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES,
PENALTIES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED BY A COURT OF
COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR ANY OF SUCH
INDEMNITEE'S RELATED PARTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO LOAN
PARTY SHALL ASSERT, AND EACH LOAN PARTY HEREBY WAIVES, ANY CLAIM AGAINST ANY
INDEMNITEE, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) (WHETHER OR NOT THE
CLAIM THEREFOR IS BASED ON CONTRACT, TORT OR DUTY IMPOSED BY ANY APPLICABLE
LEGAL REQUIREMENT) ARISING OUT OF, IN CONNECTION WITH, ARISING OUT OF, AS A
RESULT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT OR ANY LOAN DOCUMENT OR ANY
AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY OR REFERRED TO HEREIN OR
THEREIN, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR THE USE OF
THE PROCEEDS THEREOF OR ANY ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION
THEREWITH, AND THE LOAN PARTIES HEREBY WAIVE, RELEASE AND AGREE NOT TO SUE UPON
ANY SUCH CLAIM OR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT
KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1.
CONDITIONS TO
EFFECTIVENESS.
THIS AMENDMENT AND THE AMENDMENTS AND MODIFICATIONS TO THE
EXISTING CREDIT AGREEMENT SET FORTH HEREIN OR CONTEMPLATED HEREBY SHALL BECOME
EFFECTIVE UPON THE PRIOR OR SIMULTANEOUS SATISFACTION OF EACH OF THE FOLLOWING
CONDITIONS IN A MANNER REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT. THE
DATE ON WHICH ALL SUCH CONDITIONS ARE SO SATISFIED IS HEREIN REFERRED TO AS THE
"FIRST AMENDMENT EFFECTIVE DATE".
SECTION 3.1.1.
COUNTERPARTS.
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED COUNTERPARTS OF THIS
AMENDMENT EXECUTED ON BEHALF OF EACH BORROWER AND THE LENDERS WHICH, IN THE
REASONABLE JUDGMENT OF THE ADMINISTRATIVE AGENT, CONSTITUTE REQUIRED LENDERS.
SECTION 3.1.2.
SUBSIDIARY GUARANTOR ACKNOWLEDGMENT AND CONSENT.
EACH SUBSIDIARY GUARANTOR
SHALL EXECUTE AND DELIVER AN ACKNOWLEDGMENT AND CONSENT IN SUBSTANTIALLY THE
FORM ANNEXED HERETO AS EXHIBIT A.
SECTION 3.1.3.
AMENDMENT FEE.
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED FOR THE PRO RATA
ACCOUNT OF EACH LENDER (THAT HAS DELIVERED ITS SIGNATURE PAGE IN A MANNER AND
BEFORE THE TIME SET FORTH BELOW), BASED UPON SUCH LENDER'S APPLICABLE
PERCENTAGES, AN AMENDMENT FEE IN AN AMOUNT EQUAL TO 0.50% OF THE REVOLVING
COMMITMENT, BUT PAYABLE ONLY (I) UPON THE EFFECTIVENESS OF THE FIRST AMENDMENT
AND (II) TO EACH LENDER THAT HAS DELIVERED (INCLUDING BY WAY OF FACSIMILE OR
OTHER ELECTRONIC TRANSMISSION) ITS EXECUTED SIGNATURE PAGE TO THIS AMENDMENT TO
THE ATTENTION OF JAIME E. RAMIREZ AT SULLIVAN & CROMWELL LLP, 125 BROAD STREET,
NEW YORK, NEW YORK 10004, FACSIMILE NUMBER: (212) 291-9458, E-MAIL ADDRESS:
RAMIREZJ@SULLCROM.COM, AT OR PRIOR TO 5:00 P.M. (NEW YORK CITY TIME) ON
OCTOBER 14, 2009.
SECTION 3.1.4.
COSTS AND EXPENSES, ETC.
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED FOR THE
ACCOUNT OF