DOCUMENTS, ALL IN
FORM AND SUBSTANCE SATISFACTORY TO THE BANKS;
(C)
CORPORATE RESOLUTIONS. BANKS SHALL HAVE RECEIVED APPROPRIATE
CERTIFIED CORPORATE RESOLUTIONS OF EACH BORROWER AND EACH GUARANTOR;
(D)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF BORROWER UNDER THE NINTH RESTATED ARE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS AS OF SUCH DATE, AS IF THEN MADE (EXCEPT TO THE EXTENT THAT
SUCH REPRESENTATIONS AND WARRANTIES RELATED SOLELY TO AN EARLIER DATE);
(E)
NO EVENT OF DEFAULT.
NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND
BE CONTINUING NOR SHALL ANY EVENT HAVE OCCURRED OR FAILED TO OCCUR WHICH, WITH
THE PASSAGE OF TIME OR SERVICE OF NOTICE, OR BOTH, WOULD CONSTITUTE AN EVENT OF
DEFAULT;
(F)
OTHER DOCUMENTS.
EACH BANK SHALL HAVE RECEIVED SUCH OTHER
INSTRUMENTS AND DOCUMENTS INCIDENTAL AND APPROPRIATE TO THE TRANSACTION PROVIDED
FOR HEREIN AS SUCH BANK OR ITS COUNSEL MAY REASONABLY REQUEST, AND ALL SUCH
DOCUMENTS SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO SUCH BANK; AND
(G)
LEGAL MATTERS SATISFACTORY.
ALL LEGAL MATTERS INCIDENT TO THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE SATISFACTORY TO
SPECIAL COUNSEL FOR BANK RETAINED AT THE EXPENSE OF BORROWER.
6.
EXCEPT TO THE EXTENT ITS PROVISIONS ARE SPECIFICALLY AMENDED,
MODIFIED OR SUPERSEDED BY THIS FIRST AMENDMENT, THE REPRESENTATIONS, WARRANTIES
AND AFFIRMATIVE AND NEGATIVE COVENANTS OF THE BORROWER CONTAINED IN THE NINTH
RESTATED ARE INCORPORATED HEREIN BY REFERENCE FOR ALL PURPOSES AS IF COPIED
HEREIN IN FULL.
THE BORROWER HEREBY RESTATES AND REAFFIRMS EACH AND EVERY TERM
AND PROVISION OF THE NINTH RESTATED, AS AMENDED, INCLUDING, WITHOUT LIMITATION,
ALL REPRESENTATIONS, WARRANTIES AND AFFIRMATIVE AND NEGATIVE COVENANTS.
EXCEPT
TO THE
2
EXTENT ITS PROVISIONS ARE SPECIFICALLY AMENDED, MODIFIED OR SUPERSEDED BY THIS
FIRST AMENDMENT, THE NINTH RESTATED, AS AMENDED, AND ALL TERMS AND PROVISIONS
THEREOF SHALL REMAIN IN FULL FORCE AND EFFECT, AND THE SAME IN ALL RESPECTS ARE
CONFIRMED AND APPROVED BY THE BORROWER AND THE BANKS.
7.
THIS FIRST AMENDMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS AND ALL OF SUCH COUNTERPARTS TAKEN TOGETHER SHALL BE DEEMED TO
CONSTITUTE ONE AND THE SAME INSTRUMENT.
8.
THE GUARANTORS HEREBY CONSENT TO THE EXECUTION OF THIS FIRST
AMENDMENT BY THE BORROWER AND REAFFIRMS THEIR GUARANTY OF ALL OF THE OBLIGATIONS
OF THE BORROWER TO THE BANK.
BORROWER AND EACH GUARANTOR ACKNOWLEDGE AND AGREE
THAT THE RENEWAL, EXTENSION AND AMENDMENT OF THE LOAN AGREEMENT SHALL NOT BE
CONSIDERED A NOVATION OF ACCOUNT OR NEW CONTRACT BUT THAT ALL EXISTING RIGHTS,
TITLES, POWERS, LIENS, SECURITY INTERESTS AND ESTATES IN FAVOR OF THE BANKS
CONSTITUTE VALID AND EXISTING OBLIGATIONS AND LIENS AND SECURITY INTERESTS AS
AGAINST THE COLLATERAL IN FAVOR OF THE BANKS.
BORROWER AND EACH GUARANTOR
CONFIRM AND AGREE THAT (A) NEITHER THE EXECUTION OF THIS FIRST AMENDMENT OR ANY
OTHER LOAN DOCUMENT NOR THE CONSUMMATION OF THE TRANSACTIONS DESCRIBED HEREIN
AND THEREIN SHALL IN ANY WAY EFFECT, IMPAIR OR LIMIT THE COVENANTS, LIABILITIES,
OBLIGATIONS AND DUTIES OF THE BORROWER AND UNDER THE LOAN DOCUMENTS AND (B) THE
OBLIGATIONS EVIDENCED