WARRANTIES OF THE LOAN PARTIES CONTAINED IN THE CREDIT AGREEMENT OR ANY OTHER
LOAN DOCUMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE
DATE HEREOF, EXCEPT TO THE EXTENT THAT SUCH REPRESENTATIONS AND WARRANTIES
SPECIFICALLY REFER TO AN EARLIER DATE, IN WHICH CASE THEY ARE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS AS OF SUCH EARLIER DATE.
4.
CONDITIONS TO EFFECTIVENESS.
THIS
SECOND AMENDMENT SHALL NOT BE EFFECTIVE UNTIL EACH OF THE FOLLOWING CONDITIONS
PRECEDENT HAS BEEN FULFILLED TO THE REASONABLE SATISFACTION OF THE
ADMINISTRATIVE AGENT:
(A)
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED COUNTERPARTS OF THIS SECOND AMENDMENT DULY EXECUTED AND DELIVERED BY
EACH OF THE PARTIES HERETO.
(B)
ALL CORPORATE AND SHAREHOLDER ACTION ON THE
PART OF THE LOAN PARTIES NECESSARY FOR THE VALID EXECUTION, DELIVERY AND
PERFORMANCE BY THE LOAN PARTIES OF THIS SECOND AMENDMENT SHALL HAVE BEEN DULY
AND EFFECTIVELY TAKEN AND EVIDENCE THEREOF REASONABLY SATISFACTORY TO THE
ADMINISTRATIVE AGENT SHALL HAVE BEEN PROVIDED TO THE ADMINISTRATIVE AGENT.
(C)
THE LOAN PARTIES SHALL HAVE PAID TO THE
ADMINISTRATIVE AGENT, FOR THE ACCOUNT OF EACH LENDER SIGNING THIS SECOND
AMENDMENT, AN AMENDMENT FEE (THE "AMENDMENT FEE") IN THE AMOUNT SET FORTH ON
SCHEDULE I HERETO.
THE AMENDMENT FEE SHALL BE FULLY EARNED AND PAID BY THE LOAN
PARTIES TO THE ADMINISTRATIVE AGENT IN FULL ON THE EFFECTIVE DATE OF THIS SECOND
AMENDMENT.
THE AMENDMENT FEE SHALL NOT BE SUBJECT TO REFUND OR REBATE UNDER ANY
CIRCUMSTANCES.
(D)
THE LOAN PARTIES SHALL HAVE PAID IN FULL ALL
REASONABLE AND DOCUMENTED COSTS AND EXPENSES OF THE AGENTS (INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS' FEES) IN CONNECTION WITH THE PREPARATION,
NEGOTIATION, EXECUTION AND DELIVERY OF THIS SECOND AMENDMENT AND RELATED
DOCUMENTS.
2
(E)
AFTER GIVING EFFECT TO THIS SECOND
AMENDMENT, NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING.
5.
MISCELLANEOUS.
(A)
THIS SECOND AMENDMENT MAY BE EXECUTED IN
SEVERAL COUNTERPARTS AND BY EACH PARTY ON A SEPARATE COUNTERPART, EACH OF WHICH
WHEN SO EXECUTED AND DELIVERED SHALL BE AN ORIGINAL, AND ALL OF WHICH TOGETHER
SHALL CONSTITUTE ONE INSTRUMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF A
SIGNATURE PAGE TO THIS SECOND AMENDMENT BY TELECOPY OR OTHER ELECTRONIC
TRANSMISSION SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED COUNTERPART
OF THIS SECOND AMENDMENT.
(B)
THIS SECOND AMENDMENT EXPRESSES THE ENTIRE
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
HEREBY.
NO PRIOR NEGOTIATIONS OR DISCUSSIONS SHALL LIMIT, MODIFY, OR OTHERWISE
AFFECT THE PROVISIONS HEREOF.
(C)
ANY DETERMINATION THAT ANY PROVISION OF
THIS SECOND AMENDMENT OR ANY APPLICATION HEREOF IS INVALID, ILLEGAL OR
UNENFORCEABLE IN ANY RESPECT AND IN ANY INSTANCE SHALL NOT EFFECT THE VALIDITY,
LEGALITY, OR ENFORCEABILITY OF SUCH PROVISION IN ANY OTHER INSTANCE, OR THE
VALIDITY, LEGALITY OR ENFORCEABILITY OF ANY OTHER PROVISIONS OF THIS SECOND
AMENDMENT.
(D)
THE LOAN PARTIES REPRESENT AND WARRANT THAT
THEY HAVE CONSULTED WITH INDEPENDENT LEGAL COUNSEL OF THEIR SELECTION IN
CONNECTION WITH THIS SECOND AMENDMENT AND ARE NOT RELYING ON ANY REPRESENTATIONS
OR WARRANTIES