WRITING SHALL HEREAFTER BE
DEEMED TO REFER TO THE CREDIT AGREEMENT AS AMENDED HEREBY.
SECTION 4.
CONDITIONS TO EFFECTIVENESS.
THE EFFECTIVENESS OF THIS
AMENDMENT IS SUBJECT TO THE CONDITION THAT, ON OR BEFORE THE AMENDMENT EFFECTIVE
DATE, THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED ALL OF THE FOLLOWING, IN FORM
AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT AND EACH LENDER, AND IN
SUFFICIENT COPIES FOR EACH LENDER:
(A)
AMENDMENT.
THIS AMENDMENT, DULY EXECUTED AND DELIVERED BY EACH OF
THE COMPANY AND THE GUARANTORS;
(B)
RESOLUTIONS; INCUMBENCY; ORGANIZATION DOCUMENTS.
(I) RESOLUTIONS
OF THE BOARD OF DIRECTORS OF THE COMPANY AND MEMBERS OR THE BOARD OF DIRECTORS
OF EACH GUARANTOR OR ITS GENERAL PARTNER, AS APPLICABLE, AUTHORIZING THIS
AMENDMENT, CERTIFIED AS OF THE AMENDMENT EFFECTIVE DATE BY THE SECRETARY OR AN
ASSISTANT SECRETARY OF SUCH PERSON; (II) CERTIFICATES OF THE SECRETARY OF THE
COMPANY AND THE SECRETARY OF EACH GUARANTOR CERTIFYING THE NAMES AND TRUE
4
SIGNATURES OF THE OFFICERS OF SUCH PERSON AUTHORIZED TO EXECUTE, DELIVER AND
PERFORM, AS APPLICABLE, THIS AMENDMENT; AND (III) THE ORGANIZATION DOCUMENTS OF
THE COMPANY AND OF EACH GUARANTOR AS IN EFFECT ON THE AMENDMENT EFFECTIVE DATE,
CERTIFIED BY THE SECRETARY OR ASSISTANT SECRETARY OF THE SUCH PERSON AS OF THE
AMENDMENT EFFECTIVE DATE;
(C)
PAYMENT OF FEES.
EVIDENCE OF PAYMENT BY THE COMPANY OF ALL
ACCRUED AND UNPAID FEES, COSTS AND EXPENSES OWED PURSUANT TO THE CREDIT
AGREEMENT OR THIS AMENDMENT, IN EACH CASE TO THE EXTENT THEN DUE AND PAYABLE AT
THE AMENDMENT EFFECTIVE DATE, INCLUDING ANY SUCH COSTS, FEES AND EXPENSES
ARISING UNDER OR REFERENCED IN SECTIONS 2.8 AND 11.4 OF THE CREDIT AGREEMENT;
(D)
CERTIFICATE.
A CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER, DATED
AS OF THE AMENDMENT EFFECTIVE DATE, STATING THAT (I) THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN ARTICLE VI AND SECTION 4.5(B) OF THE CREDIT AGREEMENT
ARE TRUE AND CORRECT ON AND AS OF THE AMENDMENT EFFECTIVE DATE, AS THOUGH MADE
ON AND AS OF SUCH DATE; (II) NO LITIGATION IS PENDING OR THREATENED AGAINST THE
COMPANY OR ANY SUBSIDIARY IN WHICH THERE IS A REASONABLE PROBABILITY OF AN
ADVERSE DECISION WHICH WOULD RESULT IN A MATERIAL ADVERSE EFFECT; AND (III)
THERE HAS OCCURRED NO EVENT OR CIRCUMSTANCE THAT HAS RESULTED OR WOULD
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT SINCE DECEMBER 31,
2004; AND
(E)
OTHER DOCUMENTS.
SUCH OTHER APPROVALS, OPINIONS, DOCUMENTS OR
MATERIALS AS THE ADMINISTRATIVE AGENT OR ANY LENDER MAY REASONABLY REQUEST.
SECTION 5.
REPRESENTATIONS AND WARRANTIES.
THE COMPANY AND EACH
GUARANTOR EACH HEREBY REPRESENT AND WARRANT THAT, AS OF THE AMENDMENT EFFECTIVE
DATE, AFTER GIVING EFFECT TO THIS AMENDMENT:
(a)
Bring-Down of Representations and Warranties.
The representations
and warranties of the Company and each Guarantor contained in Article VI and
Section 4.5(b) of the Credit Agreement are true and correct on and as of the
Amendment Effective Date, as though made on and as of such date.
(b)
No Litigation.
No litigation is pending or threatened against the
Company or any Subsidiary in which