HEREBY REPRESENTS AND WARRANTS TO THE ADMINISTRATIVE AGENT AND THE LENDERS AS
FOLLOWS:
(A)
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND
IS CONTINUING.
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE
BORROWER OF THIS AMENDMENT HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE
AND OTHER ACTION AND DO NOT AND WILL NOT REQUIRE ANY REGISTRATION WITH, CONSENT
OR APPROVAL OF, NOTICE TO OR ACTION BY, ANY PERSON (INCLUDING ANY GOVERNMENTAL
AUTHORITY) IN ORDER TO BE EFFECTIVE AND ENFORCEABLE. THE CREDIT AGREEMENT AS
AMENDED BY THIS AMENDMENT CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF
THE BORROWER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS RESPECTIVE TERMS,
WITHOUT DEFENSE, COUNTERCLAIM OR OFFSET.
(C)
ALL REPRESENTATIONS AND WARRANTIES OF THE
BORROWER CONTAINED IN ARTICLE V OF THE CREDIT AGREEMENT ARE TRUE AND CORRECT AS
OF THE EFFECTIVE DATE, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES
SPECIFICALLY REFER TO AN EARLIER DATE, IN WHICH CASE THEY SHALL BE TRUE AND
CORRECT AS OF SUCH EARLIER DATE.
(D)
THE BORROWER IS ENTERING INTO THIS AMENDMENT ON
THE BASIS OF ITS OWN INVESTIGATION AND FOR ITS OWN REASONS, WITHOUT RELIANCE
UPON THE ADMINISTRATIVE AGENT AND THE LENDERS OR ANY OTHER PERSON.
5.
EFFECTIVE DATE. EXCEPT WITH RESPECT TO THE
PROVISIONS OF SECTION 7 HEREOF, WHICH WILL BECOME EFFECTIVE IN ACCORDANCE WITH
THE TERMS OF SUCH SECTION 7, THIS AMENDMENT WILL BECOME EFFECTIVE AS OF
MARCH 31, 2005 (SUCH DATE, THE "EFFECTIVE DATE"), TO THE EXTENT ALL OF THE
CONDITIONS PRECEDENT SET FORTH IN THIS SECTION 5 HAVE BEEN SATISFIED ON OR PRIOR
TO MARCH 31, 2005:
(A)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
FROM EACH OF THE BORROWER AND THE REQUIRED LENDERS A DULY EXECUTED ORIGINAL (OR,
IF ELECTED BY THE ADMINISTRATIVE AGENT, AN EXECUTED FACSIMILE COPY) COUNTERPART
TO THIS AMENDMENT.
(B)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
FROM THE BORROWER A CERTIFICATE EXECUTED BY THE SECRETARY, DEPUTY SECRETARY OR
ASSISTANT SECRETARY OF THE BORROWER PROVIDING SATISFACTORY EVIDENCE OF THE
AUTHORIZATION OF THE EXECUTION, DELIVERY AND PERFORMANCE BY THE BORROWER OF THIS
AMENDMENT.
(C)
THE BORROWER SHALL HAVE PAID ALL ATTORNEY COSTS
OF THE ADMINISTRATIVE AGENT TO THE EXTENT INVOICED PRIOR TO MARCH 31, 2005, PLUS
SUCH ADDITIONAL AMOUNTS OF ATTORNEY COSTS AS SHALL CONSTITUTE THE ADMINISTRATIVE
AGENT'S REASONABLE ESTIMATE OF ATTORNEY COSTS INCURRED OR TO BE INCURRED BY IT
THROUGH THE CLOSING PROCEEDINGS RELATED TO THIS AMENDMENT (PROVIDED THAT SUCH
ESTIMATE SHALL NOT THEREAFTER PRECLUDE A FINAL SETTLING OF ACCOUNTS BETWEEN THE
BORROWER AND THE ADMINISTRATIVE AGENT).
(D)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED, IN
FORM AND SUBSTANCE SATISFACTORY TO IT, SUCH ADDITIONAL APPROVALS, CONSENTS,
OPINIONS, DOCUMENTS AND OTHER INFORMATION AS THE ADMINISTRATIVE AGENT MAY
REQUEST PRIOR TO MARCH 31, 2005.
3
(E)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
FROM THE BORROWER THE AMOUNT PAYABLE IN ACCORDANCE WITH SECTION 7 HEREOF.
6.
RESERVATION OF RIGHTS. THE BORROWER ACKNOWLEDGES
AND AGREES THAT THE EXECUTION AND DELIVERY BY THE ADMINISTRATIVE AGENT AND THE
REQUIRED LENDERS OF THIS AMENDMENT SHALL NOT (A) BE DEEMED