OF THE FEE DESCRIBED IN PARAGRAPH 20.
(B)
PAYMENT OF ALL FEES AND EXPENSES INCURRED BY THE BANK IN
CONNECTION WITH THE PREPARATION OF THIS AMENDMENT AND ALL RELATED DOCUMENTS AND
INSTRUMENTS, INCLUDING BUT NOT LIMITED TO THE AMENDMENT TO INTERCREDITOR
COLLATERAL AGREEMENT DATED AS OF DECEMBER 28, 2001 (THE "INTERCREDITOR
AMENDMENT") AND ALL RELATED DOCUMENTS AND INSTRUMENTS.
(C)
A FIRST PRIORITY MORTGAGE COVERING THE BORROWER'S REAL PROPERTY
LOCATED IN EDINA, MINNESOTA IN THE AMOUNT OF $15,000,000.00 TO SECURE THE
BORROWER'S OBLIGATIONS UNDER THE CREDIT AGREEMENT AND THE NOTE PURCHASE
AGREEMENT.
(D)
A COLLATERAL PLEDGE AGREEMENT AND ANY ANCILLARY DOCUMENTS
NECESSARY TO GRANT AND PERFECT A LIEN ON, AND INTEREST IN, CERTAIN VARIABLE
UNIVERSAL LIFE INSURANCE POLICIES AND MULTI-FUNDED ANNUITY CONTRACTS OWNED BY
THE BORROWER TO SECURE THE BORROWER'S OBLIGATIONS UNDER THE CREDIT AGREEMENT AND
THE NOTE PURCHASE AGREEMENT.
(E)
A FULLY EXECUTED COPY OF THE NOTE PURCHASE AMENDMENT.
(F)
A FULLY EXECUTED COPY OF THE INTERCREDITOR AMENDMENT.
(G)
AN OPINION OF COUNSEL TO THE BORROWER WITH RESPECT TO, AMONG OTHER
THINGS, THE DUE AUTHORIZATION AND ENFORCEABILITY OF THIS AMENDMENT, THE
INTERCREDITOR AGREEMENT, THE MORTGAGE, THE COLLATERAL PLEDGE AGREEMENT AND
RELATED DOCUMENTS.
(H)
SUCH OTHER DOCUMENTS OR INSTRUMENTS AS THE BANK MAY REQUIRE.
22.
REPRESENTATIONS AND WARRANTIES. THE BORROWER HEREBY REPRESENTS AND
WARRANTS TO THE BANK AS FOLLOWS:
(A)
THE BORROWER HAS ALL REQUISITE POWER AND AUTHORITY TO EXECUTE THIS
AMENDMENT AND TO PERFORM ALL OF ITS OBLIGATIONS HEREUNDER, AND THIS AMENDMENT
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 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
7
DEFAULT UNDER ANY INDENTURE OR LOAN OR CREDIT AGREEMENT OR ANY OTHER AGREEMENT,
LEASE OR INSTRUMENT TO WHICH THE BORROWER IS A PARTY OR BY WHICH IT OR ITS
PROPERTIES MAY BE BOUND OR AFFECTED.
(C)
ALL OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV
OF THE CREDIT AGREEMENT ARE CORRECT ON AND AS OF THE DATE HEREOF AS THOUGH MADE
ON AND AS OF SUCH DATE, EXCEPT TO THE EXTENT THAT SUCH REPRESENTATIONS AND
WARRANTIES RELATE SOLELY TO AN EARLIER DATE.
23.
REFERENCES. ALL REFERENCES IN THE CREDIT AGREEMENT TO "THIS
AGREEMENT" SHALL BE DEEMED TO REFER TO THE CREDIT AGREEMENT AS AMENDED HEREBY;
AND ANY AND ALL REFERENCES IN THE LOAN DOCUMENTS TO THE CREDIT AGREEMENT SHALL
BE DEEMED TO REFER TO THE CREDIT AGREEMENT AS AMENDED BY THIS AMENDMENT.
24.
RELEASE. THE BORROWER ABSOLUTELY AND UNCONDITIONALLY