each of the Subsidiary Guarantors (or receipt by the Administrative Agent
from a party thereto of a facsimile signature page signed by such party which
shall have agreed to promptly provide the Administrative Agent with originally
executed counterparts thereof).
3.5.
Opinion of Counsel to the Borrower.
The
Administrative Agent shall have received an opinion of (i) Hogan & Hartson
L.L.P., outside counsel to the Borrower, (ii) Steven F. Siegel, Esq., in house
counsel to the Borrower, and (iii) counsel to each Subsidiary Guarantor, and
their respective general partners, managing partners or managing members, as
applicable, each addressed to the Administrative Agent and the Lenders, and each
dated the First Amendment Effective Date, and each in form and substance
satisfactory to Administrative Agent, covering such matters as the
Administrative Agent may reasonably request.
3.6.
Fees and Expenses of Special Counsel.
The fees
and expenses of Special Counsel in connection with the preparation, negotiation
and closing of this Amendment shall have been paid.
SECTION 4.
MISCELLANEOUS
A.
REFERENCE TO AND EFFECT ON THE AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
1.
ON AND AFTER THE FIRST AMENDMENT
EFFECTIVE DATE, EACH REFERENCE IN THE AGREEMENT TO "THIS AGREEMENT",
"HEREUNDER", "HEREOF", "HEREIN" OR WORDS OF LIKE IMPORT REFERRING TO THE
AGREEMENT, AND EACH REFERENCE IN THE OTHER LOAN DOCUMENTS TO THE "AGREEMENT",
"THEREUNDER", "THEREOF" OR WORDS OF LIKE IMPORT REFERRING TO THE AGREEMENT SHALL
MEAN AND BE A REFERENCE TO THE AMENDED AGREEMENT.
2.
EXCEPT AS SPECIFICALLY AMENDED BY THIS
AMENDMENT, THE AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL REMAIN IN FULL FORCE
AND EFFECT AND ARE HEREBY RATIFIED AND CONFIRMED.
3.
THE EXECUTION, DELIVERY AND PERFORMANCE
OF THIS AMENDMENT SHALL NOT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, CONSTITUTE A
WAIVER OF ANY PROVISION OF, OR OPERATE AS A WAIVER OF ANY RIGHT, POWER OR REMEDY
OF THE ADMINISTRATIVE AGENT OR ANY LENDER UNDER, THE AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS.
9
B.
COSTS AND EXPENSES.
THE BORROWER
ACKNOWLEDGES THAT ALL COSTS, FEES AND EXPENSES AS DESCRIBED IN SECTION 11.5 OF
THE AGREEMENT INCURRED BY THE ADMINISTRATIVE AGENT AND THE LEAD ARRANGERS,
INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF SPECIAL
COUNSEL, WITH RESPECT TO THIS AMENDMENT AND THE DOCUMENTS AND TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE FOR THE ACCOUNT OF THE BORROWER.
C.
HEADINGS.
SECTION HEADINGS HAVE BEEN
INSERTED IN THIS AMENDMENT FOR CONVENIENCE ONLY AND SHALL NOT BE CONSTRUED TO BE
A PART HEREOF.
D.
GOVERNING LAW.
THIS AMENDMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
E.
COUNTERPARTS.
THIS AMENDMENT MAY BE
EXECUTED IN COUNTERPARTS (AND BY DIFFERENT PARTIES HERETO IN DIFFERENT
COUNTERPARTS), EACH OF WHICH SHALL CONSTITUTE AN ORIGINAL, BUT ALL OF WHICH WHEN
TAKEN TOGETHER SHALL CONSTITUTE A SINGLE CONTRACT.
[Remainder of page intentionally left blank]
10
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to