THE BORROWERS SHALL
HAVE EXECUTED AND DELIVERED THIS AMENDMENT, AND OTHER REQUIRED DOCUMENTS, ALL IN
FORM AND SUBSTANCE SATISFACTORY TO THE AGENT.
3.2
AMENDMENT OF OTHER AGREEMENTS.
THE AGENT
SHALL HAVE RECEIVED A FULLY-EXECUTED COPY OF AN AMENDMENT TO THE CANADIAN CREDIT
AGREEMENT IN THE FORM ATTACHED HERETO AS EXHIBIT "A".
3.3
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS UNDER THIS AMENDMENT 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).
3.4
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.
3.5
OTHER DOCUMENTS.
THE AGENT SHALL HAVE
RECEIVED SUCH OTHER INSTRUMENTS AND DOCUMENTS INCIDENTAL AND APPROPRIATE TO THE
TRANSACTION PROVIDED FOR HEREIN AS THE AGENT OR ITS COUNSEL MAY REASONABLY
REQUEST, AND ALL SUCH DOCUMENTS SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO
THE AGENT.
3.6
LEGAL MATTERS SATISFACTORY.
ALL LEGAL MATTERS
INCIDENT TO THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE
REASONABLY SATISFACTORY TO SPECIAL COUNSEL FOR THE AGENT RETAINED AT THE EXPENSE
OF THE BORROWERS.
3.7
BORROWING BASE INCREASE FEE.
ON THE THIRD
AMENDMENT EFFECTIVE DATE, THE BORROWERS SHALL PAY TO THE AGENT, FOR THE RATABLE
BENEFIT OF THE JUNE 2004 NEW LENDERS, A BORROWING BASE INCREASE FEE EQUAL TO
ONE-QUARTER OF ONE PERCENT (.25%) OF THE AMOUNT OF THE INCREASE IN THE BORROWING
BASE FROM THE AMOUNT IN EFFECT PRIOR TO THE EFFECTIVENESS OF THIS AMENDMENT.
EACH JUNE 2004 NEW LENDER'S SHARE OF SUCH FEE SHALL BE IN THE SAME PROPORTION AS
SUCH JUNE 2004 NEW LENDERS' SHARE OF THE REVOLVING COMMITMENT BEARS TO THE
AGGREGATE REVOLVING COMMITMENTS OF ALL JUNE 2004 NEW LENDERS.
THE BORROWERS
FURTHER AGREE THAT ANY FAILURE ON THEIR PART TO COMPLY WITH AND PERFORM THIS
COVENANT SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THE CREDIT AGREEMENT.
SECTION 4.
MISCELLANEOUS.
4.1
ADDITIONAL REPRESENTATIONS AND WARRANTIES.
THE BORROWERS HEREBY REPRESENT AND WARRANT THAT ALL FACTUAL INFORMATION, IF
ANY, HERETOFORE AND CONTEMPORANEOUSLY FURNISHED BY OR ON BEHALF OF THE BORROWERS
TO AGENT FOR PURPOSES OF OR IN CONNECTION WITH THIS AMENDMENT DOES NOT CONTAIN
ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT
4
NECESSARY TO KEEP THE STATEMENTS CONTAINED HEREIN OR THEREIN FROM BEING
MISLEADING.
EACH OF THE FOREGOING REPRESENTATIONS AND WARRANTIES SHALL
CONSTITUTE A REPRESENTATION AND WARRANTY OF THE BORROWERS MADE UNDER THE CREDIT
AGREEMENT, AND IT SHALL BE AN EVENT OF DEFAULT IF ANY SUCH REPRESENTATION AND
WARRANTY SHALL PROVE TO HAVE BEEN INCORRECT OR FALSE IN ANY MATERIAL RESPECT AT
THE TIME GIVEN.
EACH OF THE REPRESENTATIONS AND WARRANTIES MADE UNDER THE
CREDIT AGREEMENT (INCLUDING THOSE MADE HEREIN) SHALL SURVIVE AND NOT BE WAIVED
BY THE EXECUTION AND DELIVERY OF THIS AMENDMENT OR ANY INVESTIGATION