CREDIT PARTIES REPRESENT AND WARRANT TO THE
AGENT AND EACH OF THE OTHER LENDER PARTIES THAT, AS OF THE EFFECTIVE DATE
(DEFINED BELOW):
(A)
AFTER GIVING EFFECT TO THE PROVISIONS OF THIS AMENDMENT WHICH ARE
EFFECTIVE ON THE THIRD AMENDMENT EFFECTIVE DATE, THE REPRESENTATIONS AND
WARRANTIES OF THE CREDIT PARTIES SET FORTH IN SECTION 5 OF THE CREDIT AGREEMENT
ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE EFFECTIVE DATE
WITH THE SAME EFFECT AS IF MADE ON AND AS OF THE EFFECTIVE DATE, EXCEPT TO THE
EXTENT SUCH REPRESENTATIONS AND WARRANTIES EXPRESSLY RELATE TO AN EARLIER DATE,
IN WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES WERE TRUE AND CORRECT AS OF
SUCH EARLIER DATE, AND EXCEPT FOR ANY CHANGE OF FACTS EXPRESSLY PERMITTED UNDER
THE PROVISIONS OF THE CREDIT AGREEMENT AND THE OTHER DOCUMENTS;
(B)
NO DEFAULT HAS OCCURRED AND IS CONTINUING UNDER THE CREDIT
AGREEMENT, AFTER GIVING EFFECT TO THIS AMENDMENT; AND
(C)
THIS AMENDMENT HAS BEEN DULY EXECUTED AND DELIVERED BY THE CREDIT
PARTIES AND THE CREDIT AGREEMENT, AS AMENDED HEREBY, CONSTITUTES A LEGAL, VALID
AND BINDING OBLIGATION OF THE CREDIT PARTIES, ENFORCEABLE AGAINST THE CREDIT
PARTIES IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS AFFECTING
CREDITORS' RIGHTS GENERALLY AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY,
REGARDLESS OF WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
SECTION 37.
CONDITIONS TO EFFECTIVENESS OF AMENDMENT. THIS AMENDMENT SHALL
BECOME EFFECTIVE AS OF THE DATE (THE "EFFECTIVE DATE") ON WHICH EACH OF THE
FOLLOWING CONDITIONS HAS BEEN SATISFIED:
30
(A)
THE AGENT SHALL HAVE RECEIVED COUNTERPARTS OF THIS AMENDMENT THAT,
WHEN TAKEN TOGETHER, BEAR THE SIGNATURES OF THE CREDIT PARTIES AND ALL THE
LENDERS;
(B)
THE AGENT SHALL HAVE RECEIVED PAYMENT FOR ANY AND ALL FEES OWING
IN CONNECTION WITH THIS AMENDMENT, INCLUDING THE AMENDMENT FEE IN THE AGGREGATE
AMOUNT OF $165,000 FOR ALL SUCH LENDERS, WHICH AMENDMENT FEE SHALL BE DIVIDED ON
A PRO RATA BASIS AMONG SUCH LENDERS BY AGENT BASED ON EACH LENDER'S COMMITMENT
PERCENTAGE (AFTER GIVING EFFECT TO THE AMENDMENTS SET FORTH IN THIS AMENDMENT,
INCLUDING THE INCREASE OF THE TOTAL COMMITMENT).
(C)
TO THE EXTENT INVOICED, THE LENDERS, THE AGENT AND THE BOOK-RUNNER
SHALL HAVE RECEIVED PAYMENT OR REIMBURSEMENT OF THEIR OUT-OF-POCKET EXPENSES IN
CONNECTION WITH THIS AMENDMENT AND ANY OTHER OUT-OF-POCKET EXPENSES OF THE
LENDERS, THE AGENT OR THE BOOK-RUNNER REQUIRED TO BE PAID OR REIMBURSED PURSUANT
TO THE CREDIT AGREEMENT, INCLUDING THE REASONABLE FEES, CHARGES AND
DISBURSEMENTS OF COUNSEL FOR THE AGENT;
(D)
THE BORROWERS SHALL HAVE DELIVERED TO THE AGENT SUCH CERTIFICATES
OF AUTHORIZED OFFICERS OF THE BORROWERS AND THE GUARANTORS, CERTIFICATES OF
GOVERNMENTAL AUTHORITIES, CERTIFIED COPIES OF THE CERTIFICATES OF INCORPORATION,
FORMATION, BYLAWS AND OPERATING AGREEMENTS, AS APPLICABLE, OF THE BORROWERS AND
THE GUARANTORS (OR CERTIFIED CONFIRMATION THAT NO AMENDMENTS, MODIFICATIONS OR
REVISIONS HAVE BEEN TO THOSE PREVIOUSLY CERTIFIES AND DELIVERED TO THE AGENT, AS
APPLICABLE), CERTIFIED COPIES OF RESOLUTIONS OF THE DIRECTORS, MANAGERS OR
MEMBERS, AS