the following:
; provided however, that no representation or warranty made by the Borrower
which is based on or related to any previously furnished reports or information
that has been revised by reason of any of the Restatements will be deemed to
have been incorrect in any material respect when made or deemed made for all
purposes under this Agreement.
3.
REPRESENTATIONS AND WARRANTIES. THE
BORROWER 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.
4.
EFFECTIVE DATE. EXCEPT WITH RESPECT TO
THE PROVISIONS OF SECTION 6 HEREOF, WHICH WILL BECOME EFFECTIVE IN ACCORDANCE
WITH THE TERMS OF SUCH SECTION 6, THIS AMENDMENT WILL BECOME EFFECTIVE AS OF
MAY 15, 2005 (SUCH DATE, THE "EFFECTIVE DATE"), TO THE EXTENT ALL OF THE
CONDITIONS PRECEDENT SET FORTH IN THIS SECTION 4 HAVE BEEN SATISFIED ON OR PRIOR
TO MAY 15, 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.
3
(C)
THE BORROWER SHALL NOT HAVE FURNISHED THE REPORTS AND OTHER INFORMATION
REQUIRED TO BE FURNISHED WITH RESPECT TO THE FISCAL QUARTER OF THE BORROWER
ENDING MARCH 31, 2005 WITHIN THE TIME PERIODS REQUIRED PURSUANT TO
SECTION 6.01(B) OF THE CREDIT AGREEMENT (PRIOR TO
GIVING EFFECT TO THE
AMENDMENT TO SUCH SECTION SET FORTH ABOVE IN THIS AMENDMENT).
(d)
The Borrower shall have paid all Attorney
Costs of the Administrative Agent to the extent invoiced prior to May 15, 2005,
plus such additional amounts of Attorney Costs as shall constitute the
Administrative