UNDER THIS AMENDMENT ARE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF SUCH DATE, AS IF THEN MADE (EXCEPT TO THE EXTENT THAT SUCH
REPRESENTATIONS AND WARRANTIES RELATED SOLELY TO AN EARLIER DATE).
4.3
NO EVENT OF DEFAULT.
NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND
BE CONTINUING NOR SHALL ANY EVENT HAVE OCCURRED OR FAILED TO OCCUR WHICH, WITH
THE PASSAGE OF TIME OR SERVICE OF NOTICE, OR BOTH, WOULD CONSTITUTE AN EVENT OF
DEFAULT.
4.4
MANAGEMENT BUYOUT DOCUMENTS.
THE AGENT SHALL HAVE RECEIVED A TRUE
AND CORRECT COPY OF THAT CERTAIN STOCK PURCHASE AGREEMENT, DATED ON OR ABOUT
SEPTEMBER 30, 2005, BY AND AMONG HOLDINGS AND HOLDINGS II.
4.5
OTHER DOCUMENTS.
THE AGENT SHALL HAVE RECEIVED SUCH OTHER
INSTRUMENTS AND DOCUMENTS INCIDENTAL AND APPROPRIATE TO THE TRANSACTION PROVIDED
FOR HEREIN AS THE AGENT OR ITS COUNSEL MAY REASONABLY REQUEST, AND ALL SUCH
DOCUMENTS SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE AGENT.
4.6
LEGAL MATTERS SATISFACTORY.
ALL LEGAL MATTERS INCIDENT TO THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE REASONABLY
SATISFACTORY TO SPECIAL COUNSEL FOR THE AGENT RETAINED AT THE EXPENSE OF THE
BORROWERS.
7
SECTION 5.
MISCELLANEOUS.
5.1
ADDITIONAL REPRESENTATIONS AND WARRANTIES.
THE BORROWERS HEREBY
REPRESENT AND WARRANT THAT ALL FACTUAL INFORMATION, IF ANY, HERETOFORE AND
CONTEMPORANEOUSLY FURNISHED BY OR ON BEHALF OF THE BORROWERS TO AGENT FOR
PURPOSES OF OR IN CONNECTION WITH THIS AMENDMENT DOES NOT CONTAIN ANY UNTRUE
STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT NECESSARY TO
KEEP THE STATEMENTS CONTAINED HEREIN OR THEREIN FROM BEING MISLEADING.
EACH OF
THE FOREGOING REPRESENTATIONS AND WARRANTIES SHALL CONSTITUTE A REPRESENTATION
AND WARRANTY OF THE BORROWERS MADE UNDER THE CREDIT AGREEMENT, AND IT SHALL BE
AN EVENT OF DEFAULT IF ANY SUCH REPRESENTATION AND WARRANTY SHALL PROVE TO HAVE
BEEN INCORRECT OR FALSE IN ANY MATERIAL RESPECT AT THE TIME GIVEN.
EACH OF THE
REPRESENTATIONS AND WARRANTIES MADE UNDER THE CREDIT AGREEMENT (INCLUDING THOSE
MADE HEREIN) SHALL SURVIVE AND NOT BE WAIVED BY THE EXECUTION AND DELIVERY OF
THIS AMENDMENT OR ANY INVESTIGATION BY AGENT OR THE LENDERS.
5.2
INDEMNIFICATION.
THE BORROWERS AGREE TO INDEMNIFY AND HOLD
HARMLESS AGENT AND THE LENDERS AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS,
ATTORNEYS AND REPRESENTATIVES (SINGULARLY, AN "INDEMNIFIED PARTY", AND
COLLECTIVELY, THE "INDEMNIFIED PARTIES") FROM AND AGAINST ANY LOSS, COST,
LIABILITY, DAMAGE OR EXPENSE (INCLUDING THE REASONABLE FEES AND OUT-OF-POCKET
EXPENSES OF COUNSEL TO AGENT OR THE LENDERS, INCLUDING ALL LOCAL COUNSEL HIRED
BY SUCH COUNSEL) ("CLAIM") INCURRED BY AGENT OR THE LENDERS IN INVESTIGATING OR
PREPARING FOR, DEFENDING AGAINST, OR PROVIDING EVIDENCE, PRODUCING DOCUMENTS OR
TAKING ANY OTHER ACTION IN RESPECT OF ANY COMMENCED OR THREATENED LITIGATION,
ADMINISTRATIVE PROCEEDING OR INVESTIGATION UNDER ANY FEDERAL SECURITIES LAW,
FEDERAL OR STATE ENVIRONMENTAL LAW, OR ANY OTHER STATUTE OF ANY JURISDICTION, OR
ANY REGULATION, OR AT COMMON LAW OR OTHERWISE, WHICH IS ALLEGED TO ARISE OUT OF
OR IS BASED UPON ANY ACTS, PRACTICES OR OMISSIONS OR ALLEGED ACTS, PRACTICES OR
OMISSIONS OF THE