HAVE EXCESS AVAILABILITY ON THE DATE OF
EXECUTION OF THIS AMENDMENT, AFTER THE APPLICATION OF PROCEEDS OF THE LOANS
REQUESTED BY BORROWERS ON THE DATE OF EXECUTION OF THIS AMENDMENT AND AFTER
PROVISION FOR BORROWERS' PAYMENT OF ALL FEES AND EXPENSES OF THE TRANSACTIONS
CONTEMPLATED BY THIS AMENDMENT AND THE AMENDMENT NO. 1 FEE LETTER, OF NOT LESS
THAN THE AMOUNT EQUAL TO 15% OF THE AGGREGATE COMMITMENTS SET FORTH ON SCHEDULE
2.01 TO THE CREDIT AGREEMENT, AS AMENDED AND RESTATED PURSUANT TO THIS
AMENDMENT; AND
(G)
IMMEDIATELY PRIOR TO, AND IMMEDIATELY AFTER GIVING EFFECT TO,
THE AMENDMENTS AND AGREEMENTS SET FORTH HEREIN, THERE SHALL EXIST NO DEFAULT OR
EVENT OF DEFAULT.
24.
EFFECT OF THIS AMENDMENT.
THIS AMENDMENT CONSTITUTES THE
ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND
SUPERSEDES ALL PRIOR ORAL OR WRITTEN COMMUNICATIONS, MEMORANDA, PROPOSALS,
NEGOTIATIONS, DISCUSSIONS, TERM SHEETS AND COMMITMENTS WITH RESPECT TO THE
SUBJECT MATTER HEREOF.
EXCEPT AS EXPRESSLY AMENDED PURSUANT HERETO, NO OTHER
CHANGES OR MODIFICATIONS TO THE LOAN DOCUMENTS ARE INTENDED OR IMPLIED, AND IN
ALL OTHER RESPECTS THE LOAN DOCUMENTS ARE HEREBY SPECIFICALLY RATIFIED, RESTATED
AND CONFIRMED BY ALL PARTIES HERETO AS OF THE EFFECTIVE DATE HEREOF.
TO THE
EXTENT THAT ANY PROVISION OF THE CREDIT AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS ARE INCONSISTENT WITH THE PROVISIONS OF THIS AMENDMENT, THE PROVISIONS
OF THIS AMENDMENT SHALL CONTROL.
25.
FURTHER ASSURANCES.
LOAN PARTIES SHALL EXECUTE AND DELIVER
SUCH ADDITIONAL DOCUMENTS AND TAKE SUCH ADDITIONAL ACTION AS MAY BE REASONABLY
REQUESTED BY AGENT TO EFFECTUATE THE PROVISIONS AND PURPOSES OF THIS AMENDMENT.
2270379.15
26
26.
GOVERNING LAW.
THE RIGHTS AND OBLIGATIONS HEREUNDER OF EACH OF
THE PARTIES HERETO SHALL BE GOVERNED BY AND INTERPRETED AND DETERMINED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, BUT EXCLUDING ANY
PRINCIPLES OF CONFLICTS OF LAW OR OTHER RULE OF LAW THAT WOULD CAUSE THE
APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE LAWS OF THE STATE OF
NEW YORK.
27.
BINDING EFFECT.
THIS AMENDMENT SHALL BE BINDING UPON AND INURE
TO THE BENEFIT OF EACH OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS.
28.
COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, BUT ALL OF SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND
THE SAME AGREEMENT.
IN MAKING PROOF OF THIS AMENDMENT, IT SHALL NOT BE
NECESSARY TO PRODUCE OR ACCOUNT FOR MORE THAN ONE COUNTERPART THEREOF SIGNED BY
EACH OF THE PARTIES HERETO.
DELIVERY OF AN EXECUTED COUNTERPART OF THIS
AMENDMENT BY TELECOPIER OR OTHER ELECTRONIC MEANS SHALL HAVE THE SAME FORCE AND
EFFECT AS DELIVERY OF AN ORIGINAL EXECUTED COUNTERPART OF THIS AMENDMENT.
ANY
PARTY DELIVERING AN EXECUTED COUNTERPART OF THIS AMENDMENT BY TELECOPIER OR
OTHER ELECTRONIC MEANS ALSO SHALL DELIVER AN ORIGINAL EXECUTED COUNTERPART OF
THIS AMENDMENT, BUT THE FAILURE TO DELIVER AN ORIGINAL EXECUTED COUNTERPART
SHALL NOT AFFECT THE VALIDITY, ENFORCEABILITY, AND BINDING EFFECT OF THIS
AMENDMENT AS TO SUCH PARTY OR ANY OTHER