to the Consent and Amendment
Effective Date with the issuing bank for any Outstanding Letter of Credit to
cash collateralize such Outstanding Letter of Credit (including with respect to
interest, fees and expenses associated therewith); provided that (i) the amount
of such cash subject to such Lien at any time shall not exceed 101% of the face
amount of such Outstanding Letter of Credit and (ii) upon the termination or
expiration of such Outstanding Letter of Credit, to the extent there has been no
drawing under such Outstanding Letter of Credit that has not been reimbursed at
such time, an amount of cash equal to 101% of the face amount of such
Outstanding Letter of Credit (less any amounts retained to pay interest, fees
and expenses associated therewith) shall be promptly released from such Lien.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
EACH BORROWER REPRESENTS AND
WARRANTS TO THE ADMINISTRATIVE AGENT, TO EACH OF THE LENDERS AND TO LASALLE, AS
REPLACEMENT ISSUING BANK, THAT:
(A)
THIS AMENDMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY IT AND
CONSTITUTES A LEGAL, VALID AND BINDING OBLIGATION OF EACH LOAN PARTY PARTY
HERETO, ENFORCEABLE AGAINST SUCH LOAN PARTY IN ACCORDANCE WITH ITS TERMS.
(B)
AFTER GIVING EFFECT TO THIS AMENDMENT, THE REPRESENTATIONS AND WARRANTIES
SET FORTH IN ARTICLE III OF THE CREDIT AGREEMENT ARE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON AND AS OF THE DATE HEREOF WITH THE SAME EFFECT AS IF MADE
ON AND AS OF THE DATE HEREOF, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND
WARRANTIES EXPRESSLY RELATE TO AN EARLIER DATE.
(C)
AFTER GIVING EFFECT TO THIS AMENDMENT, NO DEFAULT HAS OCCURRED AND IS
CONTINUING.
5
SECTION 6. CONDITIONS TO EFFECTIVENESS.
THIS CONSENT AND AMENDMENT SHALL BECOME
EFFECTIVE WHEN (A) THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED COUNTERPARTS OF
THIS CONSENT AND AMENDMENT THAT, WHEN TAKEN TOGETHER, BEAR THE SIGNATURES OF THE
BORROWERS, THE REQUIRED LENDERS, THE ADMINISTRATIVE AGENT, DBTCA, GECC AND
LASALLE, (B) THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5 HEREOF
ARE TRUE AND CORRECT (AS SET FORTH ON AN OFFICER'S CERTIFICATE DELIVERED TO THE
ADMINISTRATIVE AGENT) AND (C) ALL FEES AND EXPENSES REQUIRED TO BE PAID OR
REIMBURSED BY THE BORROWERS PURSUANT HERETO OR THE CREDIT AGREEMENT OR
OTHERWISE, INCLUDING ALL INVOICED FEES AND EXPENSES OF COUNSEL TO THE
ADMINISTRATIVE AGENT, DBTCA (AS RESIGNING COLLATERAL AGENT AND REPLACED ISSUING
BANK), GECC (AS SUCCESSOR COLLATERAL AGENT AND RESIGNING CO-COLLATERAL AGENT)
AND LASALLE (AS REPLACEMENT ISSUING BANK), SHALL HAVE BEEN PAID OR REIMBURSED,
AS APPLICABLE.
SECTION 7. CREDIT AGREEMENT.
EXCEPT AS SPECIFICALLY AMENDED HEREBY, THE CREDIT
AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT IN ACCORDANCE WITH THE
PROVISIONS THEREOF AS IN EXISTENCE ON THE DATE HEREOF.
AFTER THE DATE HEREOF,
ANY REFERENCE TO THE CREDIT AGREEMENT SHALL MEAN THE CREDIT AGREEMENT AS AMENDED
HEREBY.
THIS CONSENT AND AMENDMENT SHALL BE A LOAN DOCUMENT FOR ALL PURPOSES.
SECTION 8. APPLICABLE LAW.
THIS CONSENT AND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE