CONFIRMS THAT ITS OBLIGATIONS TO THE LENDER ARE SENIOR INDEBTEDNESS FOR PURPOSES
OF THE INDENTURE.
23.
CONDITIONS PRECEDENT.
THIS AMENDMENT SHALL
BE EFFECTIVE WHEN THE LENDER SHALL HAVE RECEIVED AN EXECUTED ORIGINAL HEREOF,
TOGETHER WITH EACH OF THE FOLLOWING, EACH IN SUBSTANCE AND FORM ACCEPTABLE TO
THE LENDER IN ITS SOLE DISCRETION:
(A)
THE TERM NOTE, DULY EXECUTED ON BEHALF OF
THE BORROWER.
(B)
THE ACKNOWLEDGMENT AND AGREEMENT OF
GUARANTORS SET FORTH AT THE END OF THIS AMENDMENT, DULY EXECUTED BY EACH
GUARANTOR.
(C)
A CERTIFICATE OF THE SECRETARY OF THE
BORROWER CERTIFYING AS TO (I) THE RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE
BORROWER APPROVING THE EXECUTION AND DELIVERY OF THIS AMENDMENT, (II) THE FACT
THAT THE ARTICLES OF INCORPORATION AND BYLAWS OF THE BORROWER, WHICH WERE
CERTIFIED AND DELIVERED TO THE LENDER PURSUANT TO THE CERTIFICATE OF AUTHORITY
OF THE BORROWER'S SECRETARY OR ASSISTANT SECRETARY DATED AS OF AUGUST 15, 2003
CONTINUE IN FULL FORCE AND EFFECT AND HAVE NOT BEEN AMENDED OR OTHERWISE
MODIFIED EXCEPT AS SET FORTH IN THE CERTIFICATE TO BE DELIVERED, AND
(III) CERTIFYING THAT THE OFFICERS AND AGENTS OF THE BORROWER WHO HAVE BEEN
CERTIFIED TO THE LENDER, PURSUANT TO THE CERTIFICATE OF AUTHORITY OF THE
BORROWER'S SECRETARY OR ASSISTANT SECRETARY DATED AS OF AUGUST 15, 2003 AS BEING
AUTHORIZED TO SIGN AND TO ACT ON BEHALF OF THE BORROWER CONTINUE TO BE SO
AUTHORIZED OR SETTING FORTH THE SAMPLE SIGNATURES OF EACH OF THE OFFICERS AND
AGENTS OF THE BORROWER AUTHORIZED TO EXECUTE AND DELIVER THIS AMENDMENT AND ALL
OTHER DOCUMENTS, AGREEMENTS AND CERTIFICATES ON BEHALF OF THE BORROWER.
(D)
THE ALLOCATION AGREEMENT DATED AS OF
MARCH 9, 2004 BY AND BETWEEN THE LENDER AND IBM CREDIT LLC SHALL BE TERMINATED
AND IBM CREDIT LLC SHALL ACKNOWLEDGE THE LENDER'S FIRST PRIORITY SECURITY
INTEREST IN THE EQUIPMENT PURCHASED WITH THE PROCEEDS OF THE TERM ADVANCE.
(E)
SUCH OTHER MATTERS AS THE LENDER MAY
REQUIRE.
24.
REPRESENTATIONS AND WARRANTIES.
THE
BORROWER HEREBY REPRESENTS AND WARRANTS TO THE LENDER AS FOLLOWS:
(A)
THE BORROWER HAS ALL REQUISITE POWER AND
AUTHORITY TO EXECUTE THIS AMENDMENT AND THE TERM NOTE AND TO PERFORM ALL OF ITS
OBLIGATIONS HEREUNDER, AND THIS
10
AMENDMENT AND THE TERM NOTE HAVE HAS BEEN DULY EXECUTED AND DELIVERED BY THE
BORROWER AND CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF THE
BORROWER, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY
THE BORROWER OF THIS AMENDMENT AND THE TERM NOTE HAVE BEEN DULY AUTHORIZED BY
ALL NECESSARY CORPORATE ACTION AND DO NOT (I) REQUIRE ANY AUTHORIZATION, CONSENT
OR APPROVAL BY ANY GOVERNMENTAL DEPARTMENT, COMMISSION, BOARD, BUREAU, AGENCY OR
INSTRUMENTALITY, DOMESTIC OR FOREIGN, (II) VIOLATE ANY PROVISION OF ANY LAW,
RULE OR REGULATION OR OF ANY ORDER, WRIT, INJUNCTION OR DECREE PRESENTLY IN
EFFECT, HAVING APPLICABILITY TO THE BORROWER, OR THE ARTICLES OF INCORPORATION
OR BY-LAWS OF THE BORROWER, OR (III) RESULT IN A BREACH OF OR CONSTITUTE A
DEFAULT UNDER ANY INDENTURE OR LOAN OR CREDIT