OF THE
DATE HEREOF, AND ALL COVENANTS AND OTHER AGREEMENTS HEREIN, IN THE LOAN
AGREEMENT AND IN ALL OTHER LOAN DOCUMENTS SHALL BE AND ARE HEREBY CONFIRMED AND
RATIFIED IN ALL RESPECTS;
(B)
NO DEFAULT OR EVENT OF DEFAULT SHALL BE IN EXISTENCE AS OF THE
DATE HEREOF, EXCEPT FOR THE SPECIFIED EVENTS OF DEFAULT;
(C)
BORROWER (I) SHALL HAVE DELIVERED TO THE LENDER AN EXECUTED
ORIGINAL COPY OF THIS AMENDMENT AND EACH OTHER AGREEMENT, DOCUMENT OR INSTRUMENT
REASONABLY REQUESTED BY THE LENDER IN CONNECTION WITH THIS AMENDMENT; AND
(II) SHALL HAVE DELIVERED TO THE LENDER AMENDED AND RESTATED DISCLOSURE
SCHEDULES, WHICH SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE LENDER IN
ITS PERMITTED DISCRETION AND SHALL BE ATTACHED HERETO AS EXHIBIT 5(C) (THE
"AMENDED AND RESTATED DISCLOSURE SCHEDULES");
(D)
THE BORROWER SHALL BE IN COMPLIANCE WITH THE NOTICE AND OTHER
REQUIREMENTS OF THE BANKRUPTCY CODE AND THE APPLICABLE RULES (AS DEFINED IN THE
INTERIM FINANCING ORDER) WITH RESPECT TO ANY RELEVANT FINANCING ORDER IN A
MANNER ACCEPTABLE TO LENDER AND ITS COUNSEL;
(E)
THE INTERIM FINANCING ORDER SHALL HAVE BEEN ENTERED BY THE
BANKRUPTCY COURT, IN THE FORM ATTACHED HERETO AS EXHIBIT 5(E), AUTHORIZING THE
SECURED FINANCING UNDER THE LOAN DOCUMENTS ON THE TERMS AND CONDITIONS SET FORTH
HEREIN AND IN THE INTERIM FINANCING ORDER, AND GRANTING SUPER-PRIORITY EXPENSE
CLAIMS TO LENDER WITH RESPECT TO ALL OBLIGATIONS DUE LENDER AND THE SAME IS NOT
SUBJECT TO ANY OTHER ORDER THAT IMPAIRS ITS EFFECTIVENESS;
12
(F)
THE SUBORDINATED LENDER AND BORROWER SHALL HAVE EXECUTED A
CONSENT IN THE FORM ATTACHED HERETO AS EXHIBIT 5(F) (THE "ANNEX CONSENT"), WHICH
ANNEX CONSENT: (1) SHALL PROVIDE THAT UNTIL THE DATE UPON WHICH THE OBLIGATIONS
OWED TO THE LENDER HAVE BEEN IRREVOCABLY REPAID IN FULL IN CASH BORROWER MAY NOT
MAKE AND THE SUBORDINATED LENDER MAY NOT RECEIVE OR RETAIN ANY PAYMENT OR
DISTRIBUTION (IN CASH, IN KIND, IN PROPERTIES OR SECURITIES, BY SET OFF OR
OTHERWISE, EXCEPT THAT THE SUBORDINATED LENDER MAY ACCRUE PAYMENT-IN-KIND
INTEREST AND FEES) IN RESPECT OF THE SUBORDINATED DEBT; (2) SHALL OTHERWISE
CONFIRM THAT THE SUBORDINATION PROVISIONS SET FORTH IN SECTION 6P OF THE NOTE
PURCHASE AGREEMENT, AS AMENDED, REMAIN IN FULL FORCE AND EFFECT IN ALL RESPECTS
IN ACCORDANCE WITH THEIR TERMS; AND (3) SHALL CONSENT TO THE BORROWER'S
EXECUTION OF THIS AMENDMENT AND OTHERWISE CONFIRM THAT NONE OF THE PROVISIONS OF
THIS AMENDMENT SHALL CONSTITUTE A BREACH, DEFAULT OR EVENT OF DEFAULT UNDER THE
NOTE PURCHASE AGREEMENT OR UNDER THE SUBORDINATED DEBT;
(G)
BORROWER SHALL HAVE DELIVERED TO LENDER UPDATED COPIES OF ANY AND
ALL PREMIUM FINANCE ARRANGEMENTS, TOGETHER WITH A WRITTEN SUMMARY OF SUCH
ARRANGEMENTS, WHICH WRITTEN SUMMARY SHALL BE SATISFACTORY TO LENDER IN ITS
PERMITTED DISCRETION;
(H)
BORROWER SHALL HAVE DELIVERED TO LENDER A WRITTEN OPINION OR
OPINIONS OF COUNSEL FOR THE BORROWER IN FORM AND CONTENT SATISFACTORY TO THE
LENDER IN ITS SOLE DISCRETION, ADDRESSED TO THE LENDER AND ITS COUNSEL, AND
COVERING SUCH MATTERS RELATED TO THE TRANSACTIONS CONTEMPLATED HEREBY AS