HAS DELIVERED OR CAUSED TO
BE DELIVERED TO THE BANK THE FOLLOWING DOCUMENTS AND THE OTHER CONDITIONS SET
FORTH BELOW HAVE BEEN SATISFIED, WHICH DATE SHALL BE NOVEMBER 30, 2005 (THE
"EFFECTIVE DATE"):
4.1
THIS AMENDMENT EXECUTED BY THE COMPANY AND THE GUARANTOR AND A
REPLACEMENT NOTE SUBSTANTIALLY IN THE FORM SET FORTH IN EXHIBIT A TO THE CREDIT
AGREEMENT (WHICH SHALL BE THE "NOTE" AS DEFINED IN THE CREDIT AGREEMENT)
EXECUTED BY THE COMPANY.
4.2
CERTIFIED COPIES OF RESOLUTIONS OF THE APPLICABLE GOVERNING BOARD
OF THE COMPANY AND THE GUARANTOR AUTHORIZING THE EXECUTION, DELIVERY AND
PERFORMANCE BY THE COMPANY AND THE GUARANTOR, AS APPLICABLE, OF THIS AMENDMENT,
THE NOTE AND THE OTHER LOAN DOCUMENTS TO WHICH EITHER IS A PARTY.
10
4.3
CERTIFIED COPIES OF ALL DOCUMENTS EVIDENCING ANY NECESSARY
CORPORATE, LIMITED LIABILITY COMPANY OR PARTNERSHIP ACTION, CONSENTS AND
GOVERNMENTAL APPROVALS (IF ANY) REQUIRED FOR THE EXECUTION, DELIVERY AND
PERFORMANCE BY THE COMPANY AND THE GUARANTOR OF THE DOCUMENTS REFERRED TO IN
THIS SECTION 4.
4.4
A CERTIFICATE OF THE SECRETARY OR AN ASSISTANT SECRETARY (OR OTHER
APPROPRIATE REPRESENTATIVE) OF THE COMPANY AND THE GUARANTOR CERTIFYING (A) (I)
THE NAMES OF THE OFFICER OR OFFICERS OF SUCH ENTITY AUTHORIZED TO SIGN THE LOAN
DOCUMENTS TO WHICH SUCH ENTITY IS A PARTY, TOGETHER WITH A SAMPLE OF THE TRUE
SIGNATURE OF EACH SUCH OFFICER (IT BEING UNDERSTOOD THAT THE BANK MAY
CONCLUSIVELY RELY ON EACH SUCH CERTIFICATE UNTIL FORMALLY ADVISED BY A LIKE
CERTIFICATE OF ANY CHANGES THEREIN), (II) THE BYLAWS OR OPERATING AGREEMENT OF
SUCH ENTITY AND (III) CERTIFIED COPIES OF THE ARTICLES OF INCORPORATION OR
CERTIFICATE OF FORMATION OF SUCH ENTITY OR (B) THAT SUCH OFFICERS, BYLAWS OR
OPERATING AGREEMENT AND ARTICLES OF INCORPORATION OR CERTIFICATE OF FORMATION
HAVE NOT CHANGED SINCE THE SECRETARY'S CERTIFICATE DELIVERED TO THE BANK ON
NOVEMBER 9, 2004.
4.5
THE OPINION OF COUNSEL TO THE COMPANY AND THE GUARANTOR IN FORM
AND SUBSTANCE REASONABLY ACCEPTABLE TO THE BANK.
SECTION 5.
REAFFIRMATION OF GUARANTY.
THE GUARANTOR HEREBY
CONSENTS TO THE TERMS HEREOF AND REAFFIRMS IN ALL RESPECTS ITS OBLIGATIONS UNDER
THE GUARANTY.
SECTION 6.
PAYMENT OF FEES AND EXPENSES.
THE COMPANY AFFIRMS ITS
OBLIGATION UNDER SECTION 13.6 OF THE CREDIT AGREEMENT TO PAY ON DEMAND ALL
REASONABLE OUT-OF-POCKET COSTS AND EXPENSES OF THE BANK (INCLUDING ATTORNEY
COSTS) IN CONNECTION WITH THE PREPARATION, EXECUTION AND DELIVERY OF THIS
AMENDMENT AND THE ADMINISTRATION OF THE CREDIT AGREEMENT AS AMENDED HEREBY.
SECTION 7.
REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
EXCEPT AS SPECIFICALLY AMENDED ABOVE, THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL REMAIN IN FULL FORCE AND EFFECT AND ARE HEREBY RATIFIED AND
CONFIRMED.
THE EXECUTION, DELIVERY AND EFFECTIVENESS OF THIS AMENDMENT SHALL
NOT OPERATE AS A WAIVER OF ANY RIGHT, POWER OR REMEDY OF THE BANK UNDER THE
CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT, NOR CONSTITUTE A WAIVER OF ANY
PROVISION OF THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT.
UPON THE
EFFECTIVENESS OF THIS AMENDMENT, EACH REFERENCE IN THE CREDIT