THE DATE OF THE CERTIFICATE DESCRIBED IN THIS CLAUSE (A), (B) A CERTIFICATE OF
THE COMPANY TO THE EFFECT THAT EACH OF THE CERTIFICATIONS, INCLUDING, WITHOUT
LIMITATION, AS TO INCUMBENCY OF AUTHORIZED OFFICERS, MADE IN THE SECRETARY'S
CERTIFICATE DATED MARCH 17, 2003 WHICH WAS DELIVERED IN CONNECTION WITH THE
INSTRUMENT OF ADHERENCE ARE REMADE ON AND AS OF THE DATE OF THE CERTIFICATE
DESCRIBED IN THIS CLAUSE (B), EXCEPT THAT NEW RESOLUTIONS ADOPTED BY THE
COMPANY'S BOARD OF DIRECTORS AUTHORIZING THE TRANSACTIONS DESCRIBED HEREIN SHALL
BE ATTACHED TO SUCH CERTIFICATE AND CERTIFIED BY ITS SECRETARY TO BE TRUE AND
COMPLETE AND IN EFFECT ON THE DATE HEREOF, (C) ORIGINALLY EXECUTED COPIES OF A
WRITTEN OPINION OF COUNSEL, ADDRESSED TO THE LENDERS AND AGENT, RELATING TO THE
DUE AUTHORIZATION, EXECUTION AND DELIVERY OF THIS AMENDMENT AND OF SUCH NEW
NOTES AND THE ENFORCEABILITY THEREOF, SUBSTANTIALLY IN THE FORM OF THE RELEVANT
PORTIONS OF THE OPINION DELIVERED PURSUANT TO § 10.6 OF THE CREDIT AGREEMENT AND
(D) A COMPLIANCE CERTIFICATE DATED THE DATE HEREOF; AND
(IV)
BORROWER (X) SHALL HAVE PAID TO AGENT ALL FEES DUE AND PAYABLE BY
BORROWER PURSUANT TO § 4.1 OF THE CREDIT AGREEMENT AND PURSUANT TO THE FEE
AGREEMENT WITH RESPECT TO THE ADDITIONAL COMMITMENT BETWEEN WELLS AND BORROWER
DATED APRIL 22, 2003 AND (Y) SHALL HAVE PAID ALL OTHER EXPENSES AS PROVIDED IN
§ 15 OF THE CREDIT AGREEMENT DUE AND PAYABLE BY BORROWER AS OF THE FIRST
AMENDMENT EFFECTIVE DATE.
6
In furtherance of the foregoing clause (ii), each Lender receiving a replacement
Note pursuant to the foregoing clause (ii) covenants that it shall promptly
surrender to Agent, and Agent covenants that it shall promptly thereafter return
to Borrower for cancellation, such Lender's existing Note replaced thereby.
SECTION 4.
ACKNOWLEDGMENT AND CONSENT.
Each of Borrower, the Company and each other Guarantor (each individually a
"Credit Support Party" and, collectively, the "Credit Support Parties") hereby
acknowledges that it has reviewed the terms and provisions of the Credit
Agreement and this Amendment and consents to the amendment of the Credit
Agreement and Schedule 1.2 thereto effected pursuant to this Amendment.
Each
Credit Support Party hereby confirms that each Loan Document to which it is a
party or otherwise bound will continue to guaranty or secure, as the case may
be, to the fullest extent possible the payment and performance of all
Obligations of Borrower now or hereafter existing under or in respect of the
Credit Agreement and the Notes.
SECTION 5.
MISCELLANEOUS.
(A)
REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(I)
ON AND AFTER THE EFFECTIVE DATE OF THIS AMENDMENT, EACH REFERENCE
IN THE CREDIT AGREEMENT TO "THIS AGREEMENT", "HEREUNDER", "HEREOF", "HEREIN" OR
WORDS OF LIKE IMPORT REFERRING TO THE CREDIT AGREEMENT AND EACH REFERENCE IN THE
OTHER LOAN DOCUMENTS TO THE "CREDIT AGREEMENT", "THEREUNDER", "THEREOF" OR WORDS
OF LIKE IMPORT REFERRING TO THE CREDIT AGREEMENT SHALL MEAN AND BE A REFERENCE
TO THE CREDIT AGREEMENT AS AMENDED HEREBY.
(II)