INTEREST IN AND TO THE COLLATERAL AND THE PARTIES
HEREBY DECLARE AND CONFIRM THAT ALL SUCH SECURITY INTERESTS WERE AND ARE GRANTED
TO AND HELD BY THE LENDER.
8.
CONDITIONS PRECEDENT
Section 8 of the 4/04 A&R Credit Agreement is hereby amended by adding the
following new Section 8.3 to the end of Section 8, viz.:
8.3
Advances.
In addition to the conditions precedent stated in
Sections 8.1 and 8.2, above, the obligations of the Lender to fund any Advance
under this Agreement after the 4/05 Amendment Effective Date are subject to the
satisfaction, in the sole discretion of the Lender, on or before the date of the
first such Advance, of the following condition precedent:
The Lender shall have received the following, all of which must be satisfactory
in form and content to the Lender in its sole discretion:
(A)
THE 4/05 AMENDMENT, DULY EXECUTED BY ALL PARTIES;
(B)
A CERTIFICATE OF EACH BORROWER'S SECRETARY AS TO (I) THE
INCUMBENCY OF THE OFFICERS OF SUCH BORROWER EXECUTING THIS AMENDMENT, EACH
APPLICABLE REQUEST FOR BORROWING AND ALL OTHER CREDIT PAPERS EXECUTED OR TO BE
EXECUTED BY OR ON BEHALF OF SUCH BORROWER AND (II) THE AUTHENTICITY OF THEIR
SIGNATURES - AND SPECIMENS OF THEIR SIGNATURES SHALL BE INCLUDED IN SUCH
CERTIFICATE OR SET FORTH ON AN EXHIBIT ATTACHED TO IT - (THE LENDER SHALL BE
ENTITLED TO RELY ON THAT CERTIFICATE UNTIL SUCH BORROWER HAS FURNISHED NEW
CERTIFICATES TO THE LENDER, AND CERTIFYING THAT ATTACHED TO SUCH CERTIFICATES
ARE TRUE AND CORRECT COPIES OF ALL AMENDMENTS TO SUCH BORROWER'S CERTIFICATES OF
ORGANIZATION AND REGULATIONS SINCE ITS INCEPTION);
(C)
SUCH OTHER DOCUMENTS, IF ANY, AS SHALL BE SPECIFIED BY THE LENDER.
7
9.
REPRESENTATIONS
Each Borrower hereby republishes, and ratifies and (except as to those that are
specified to relate only to a specific date) confirms as being currently true
and correct, its warranties and representations made in the 4/04 A&R Credit
Agreement, effective as of the 4/05 Amendment Effective Date.
11.
NEGATIVE COVENANTS
Section 11.1 is hereby amended to add subsection (j) to henceforth read as
follows:
(J)
PERMITTED GUARANTEES.
Sections 11.2, 11.3, 11.4 and 11.8(e) are hereby amended in their entirety to
henceforth read as follows:
11.2
DEBT TO AFFILIATES.
INCUR ANY DEBT TO ANY AFFILIATE OR OTHERWISE
UNDERTAKE OR ENGAGE IN ANY OTHER TRANSACTION WITH ANY AFFILIATE (EXCEPT
UNSECURED DEBT TO THE OTHER BORROWER) EXCEPT UPON FAIR AND REASONABLE TERMS NO
LESS FAVORABLE THAN THE APPLICABLE BORROWER COULD OBTAIN IN A COMPARABLE
ARM'S-LENGTH TRANSACTION WITH A PERSON WHO IS NOT AN AFFILIATE AND, AFTER GIVING
EFFECT TO ANY AND ALL OF WHICH TRANSACTIONS, THERE IS NO VIOLATION OF ANY OF
SECTIONS 11.1, 11.8 OR 12.1(I).
11.3
CONTINGENT LIABILITIES.
ASSUME, GUARANTEE, ENDORSE OR OTHERWISE
BECOME LIABLE FOR THE DEBT OR OTHER OBLIGATION OF ANY PERSON OR ENTITY EXCEPT
(I) PERMITTED DEBT OF THE OTHER BORROWER OR BY ENDORSEMENT OF NEGOTIABLE
INSTRUMENTS FOR DEPOSIT OR COLLECTION IN THE ORDINARY COURSE OF BUSINESS AND
(II) PERMITTED GUARANTEES; PROVIDED THAT CUSTOMARY