NO DEFAULT HAS OCCURRED AND IS CONTINUING UNDER THE CREDIT
AGREEMENT; 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 19.
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:
(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 OF ANY AND ALL FEES OWING IN
CONNECTION WITH THIS AMENDMENT, INCLUDING (A) AN AMENDMENT FEE IN THE AMOUNT OF
$5,000.00 FOR EACH LENDER AND (B) A COMMITMENT INCREASE FEE PAYABLE TO EACH
LENDER WHOSE COMMITMENT IS BEING INCREASED PURSUANT TO THIS AMENDMENT IN THE
AMOUNT OF 7.5 BASIS POINTS (0.075%) ON THE AMOUNT OF SUCH INCREASE.
(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
14
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 APPLICABLE OF THE BORROWERS AND THE GUARANTORS AND SUCH OTHER
DOCUMENTS, INSTRUMENTS AND AGREEMENTS AS THE AGENT SHALL REQUIRE TO EVIDENCE THE
VALID CORPORATE EXISTENCE AND AUTHORITY TO CONDUCT BUSINESS OF THE BORROWERS AND
THE GUARANTORS AND THE DUE AUTHORIZATION, EXECUTION AND DELIVERY OF THIS
AMENDMENT ANY OTHER DOCUMENTS RELATED TO THIS AMENDMENT AND ANY OTHER LEGAL
MATTERS RELATING TO THE BORROWERS, THE GUARANTORS, ANY SUBSIDIARY OR THE OTHER
LOAN DOCUMENTS BY THE BORROWERS AND/OR THE GUARANTORS, ALL IN A FORM AND
SUBSTANCE REASONABLE SATISFACTORY TO THE AGENT AND ITS COUNSEL;
(E)
THE BORROWERS SHALL HAVE DELIVERED TO THE AGENT A FAVORABLE
OPINION OF POWELL GOLDSTEIN LLP, COUNSEL TO THE BORROWERS AND THE GUARANTORS
DATED AS OF THE EFFECTIVE DATE, ADDRESSED TO THE AGENT AND THE LENDERS AND
COVERING SUCH MATTERS IN CONNECTION WITH THE FOREGOING AS THE AGENT OR THE
LENDERS MAY REASONABLY REQUEST, IN A FORM AND SUBSTANCE REASONABLY SATISFACTORY
TO