AMENDMENT NO. 3 TO CREDIT AGREEMENT

1. Amendments to Credit Agreement.  Subject to the terms and conditions set forth herein and in reliance upon the representations and warranties set forth herein, the Credit Agreement is amended as follows:

(a)	Section 1.01 of the Credit Agreement is amended to add the following new definitions in the appropriate alphabetical location therein:

(b)	The definition of "Change of Control" in Section 1.01 of the Credit Agreement is amended by deleting the parenthetical at the end of clause (b) therein.

(c)	The definitions of "Eurocurrency Rate", "Loan Notice", "Responsible Officer" and "Swing Line Loan Notice" in Section 1.01 of the Credit Agreement are amended and restated in their entirety as follows:

(d)	The definition of "Federal Funds Rate" in Section 1.01 of the Credit Agreement is amended by deleting the reference therein to "arranged by Federal funds brokers on such day".

 

(e)	The first sentence of Section 2.02(a) of the Credit Agreement is amended and restated in its entirety as follows:

(f)	The first sentence of Section 2.04(b) of the Credit Agreement is amended and restated in its entirety as follows:

(g)	Section 2.05(a) of the Credit Agreement is amended by replacing the reference therein to ", upon notice to the Administrative Agent," with ", upon notice to the Administrative Agent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment,".

(h)

Section 2.05(b) of the Credit Agreement is amended by replacing the reference therein to ",upon notice to the Swing Line Lender (with a copy to the Administrative Agent)," with ", upon notice to the Swing Line Lender pursuant to delivery to the Swing Line Lender of a Notice of Loan Prepayment (with a copy to the Administrative Agent),".

(i)	Each of Section 6.12 and Section 7.04 of the Credit Agreement is amended by (i) replacing each reference therein to "30%" with "50%" and (ii) replacing each reference therein to "40%" with "50%".

(j)	Section 10.17 of the Credit Agreement is amended and restated in its entirety as follows:

2. Effectiveness; Condition Precedent.  The parties hereto agree that this Amendment and the amendments provided in Section 1 shall become effective upon the Administrative Agent's receipt of a counterpart of this Amendment, duly executed and delivered by each of the Borrower, the Subsidiary Guarantors, the Administrative Agent and Lenders constituting Required Lenders.

3. Representations and Warranties.  In order to induce the Administrative Agent, the Lenders, the Swing Line Lender and the L/C Issuer to enter into this Amendment, the Borrower represents and warrants to the Administrative Agent, the Swing Line Lender, such Lenders and the L/C Issuer as follows:

(a) The representations and warranties made by it in Article V of the Credit Agreement, and by each Loan Party in each of the Loan Documents to which such Loan Party is a party, are true and correct in all material respects on and as of the date hereof, except that (i) if a qualifier relating to materiality or Material Adverse Effect applies, such representation or warranty is true and correct in all respects and (ii) 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 (except that if a qualifier relating to materiality or Material Adverse Effect applies, such representation or warranty is true and correct in all respects as of such earlier date).

(b) Since the date of the most recent financial reports of the Borrower delivered pursuant to Section 6.01 of the Credit Agreement, no act, event, condition or circumstance has occurred or arisen which, singly or in the aggregate with one or more other acts, events, occurrences or conditions (whenever occurring or arising), has had or could reasonably be expected to have a Material Adverse Effect;

(c) This Amendment has been duly authorized, executed and delivered by the Borrower and the Subsidiary Guarantors party hereto and constitutes a legal, valid and binding obligation of each such Person, except as may be limited by general principles of equity or by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally; and

(d) No Default or Event of Default has occurred and is continuing or will exist after giving effect to this Amendment.

4. Fees and Expenses.  The Borrower shall pay on demand all reasonable costs and expenses of the Administrative Agent in connection with the preparation, negotiation, execution, and delivery of this Amendment and any other documents prepared in connection herewith, including, without limitation, the reasonable fees, charges and disbursements of one counsel for the Administrative Agent.

5. Entire Agreement.  This Amendment, together with the Loan Documents (collectively, the "Relevant Documents"), sets forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter.  No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty.  Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to the other in relation to the subject matter hereof or thereof.  None of the terms or conditions of this Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and in accordance with Section 10.01 of the Credit Agreement.

 

6. Ratification and Confirmation of Loan Documents.  The Borrower and the Subsidiary Guarantors each hereby consents, acknowledges and agrees to the amendments set forth herein and hereby confirms and ratifies in all respects the Loan Documents to which such Person is a party (including without limitation, with respect to each Subsidiary Guarantor, the continuation of its payment and performance obligations under the Subsidiary Guaranty), in each case upon and after the effectiveness of the amendments contemplated hereby.

7. Counterparts.  This Amendment may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument.  Delivery of an executed counterpart of a signature page of this Amendment by telecopy, facsimile or other electronic transmission (including .pdf) shall be effective as delivery of a manually executed counterpart of this Amendment.

8. Governing Law.  This Amendment shall in all respects be governed by, and construed in accordance with, the laws of the State of New York.

9. Enforceability.  Should any one or more of the provisions of this Amendment be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.

10. References.  All references in any of the Loan Documents to the "Credit Agreement" shall mean the Credit Agreement, as amended hereby and as from time to time hereafter further amended, modified, supplemented, restated or amended and restated.

11. Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assignees to the extent such assignees are permitted assignees as provided in Section 10.06 of the Credit Agreement.