CONDITION OF THE BORROWER OR ANY OF ITS
SUBSIDIARIES THAT COULD HAVE A MATERIAL ADVERSE EFFECT.
SECTION 3.2.
AUTHORIZATION, VALIDITY AND ENFORCEABILITY.
THIS
AMENDMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE BORROWER AND
CONSTITUTES, AND THE CREDIT AGREEMENT, AND EACH OF THE OTHER LOAN DOCUMENTS, AS
AMENDED BY AND THROUGH THE DATE HEREOF, CONSTITUTE, LEGAL, VALID AND BINDING
OBLIGATIONS OF THE BORROWER, ENFORCEABLE AGAINST THE BORROWER IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS, EXCEPT AS THE ENFORCEMENT THEREOF MAY BE LIMITED BY
APPLICABLE BANKRUPTCY, INSOLVENCY OR SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
RIGHTS OF CREDITORS GENERALLY AND EXCEPT TO THE EXTENT THAT ENFORCEMENT OF
RIGHTS AND REMEDIES SET FORTH THEREIN MAY BE LIMITED BY EQUITABLE PRINCIPLES
(REGARDLESS OF WHETHER ENFORCEMENT IS CONSIDERED IN A COURT OF LAW OR A
PROCEEDING IN EQUITY).
SECTION 3.3.
CONDITIONS PRECEDENT.
PRIOR TO OR CONCURRENTLY WITH THE
EXECUTION OF THIS AMENDMENT, AND AS A CONDITION TO THE OBLIGATION OF THE CREDIT
PARTIES TO EXECUTE THIS AMENDMENT:
3
(A)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A CERTIFICATE, DATED
THE FOURTH AMENDMENT CLOSING DATE, OF THE SECRETARY OF THE BORROWER:
(I)
ATTACHING A TRUE AND COMPLETE COPY OF THE RESOLUTIONS OF ITS
BOARD OF DIRECTORS AND OF ALL OTHER DOCUMENTS EVIDENCING ALL NECESSARY CORPORATE
ACTION (IN FORM AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT) TAKEN TO
AUTHORIZE THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AMENDMENT AND EACH OF
THE OTHER DOCUMENTS AND INSTRUMENTS CONTEMPLATED HEREBY;
(II)
SETTING FORTH THE INCUMBENCY OF ITS OFFICERS WHO ARE AUTHORIZED
TO AND WHO SIGN THIS AMENDMENT, INCLUDING THEREIN A SIGNATURE SPECIMEN OF SUCH
OFFICERS; AND
(III)
ATTACHING A CERTIFICATE OF GOOD STANDING OF THE SECRETARY OF
STATE OF THE JURISDICTION OF ITS FORMATION.
(B)
THE CREDIT PARTIES SHALL HAVE RECEIVED ALL FEES AND OTHER AMOUNTS
DUE AND PAYABLE TO THE CREDIT PARTIES, AND THEIR RESPECTIVE AFFILIATES, UNDER
THE CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY SEPARATE LETTER AGREEMENT
OR OTHER ARRANGEMENT(S) AMONG THE BORROWER AND THE ADMINISTRATIVE AGENT AND
SYNDICATION AGENT TO THE EXTENT THAT SUCH FEES OR OTHER AMOUNTS ARE PAYABLE ON
OR PRIOR TO THE FOURTH AMENDMENT CLOSING DATE, INCLUDING, TO THE EXTENT INVOICED
WITH REASONABLE DETAIL, REIMBURSEMENT OR PAYMENT OF THE FEES AND DISBURSEMENTS
OF SPECIAL COUNSEL AND ALL OTHER OUT-OF-POCKET EXPENSES REQUIRED TO BE
REIMBURSED OR PAID BY THE BORROWER HEREUNDER.
(C)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A WAIVER EXECUTED BY
THE BORROWER AND NML UNDER THE SUBORDINATED NOTE AND WARRANT PURCHASE AGREEMENT,
DATED JANUARY 18, 2002, AS AMENDED, BETWEEN THE BORROWER AND NML IN FORM AND
SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT.
(D)
NO INJUNCTION, WRIT, RESTRAINING ORDER, OR OTHER ORDER OF ANY
NATURE PROHIBITING, DIRECTLY OR INDIRECTLY, THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREIN OR BY THE OTHER LOAN DOCUMENTS SHALL HAVE BEEN ISSUED BY ANY
GOVERNMENTAL AUTHORITY AGAINST THE BORROWER, THE ADMINISTRATIVE AGENT OR ANY
LENDER.
(E)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED ALL OTHER INFORMATION
AND DOCUMENTS WHICH THE ADMINISTRATIVE AGENT OR ITS COUNSEL MAY REASONABLY HAVE
REQUESTED IN