Common use of REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT Clause in Contracts

REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and delivery hereof, the Borrower represents and warrants that, as of the date hereof, and both before and immediately after giving effect to this Third Amendment: (a) the representations and warranties contained in the Credit Agreement and the other Loan Documents that are subject to materiality or Material Adverse Effect qualifications are true and correct in all respects on and as of the date hereof as made on and as of such date, and the representations and warranties contained in the Credit Agreement and the other Loan Documents that are not subject to materiality or Material Adverse Effect qualifications are true and correct in all material respects on and as of the date hereof as made on and as of such date, except in each case to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that the representations and warranties contained in Sections 5.05(a) and (c) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and (b), respectively, of the Credit Agreement; (b) no event has occurred and is continuing which constitutes a Default or Event of Default; (c) (i) the Borrower has full power and authority to execute and deliver this Third Amendment, (ii) this Third Amendment has been duly executed and delivered by the Borrower and (iii) this Third Amendment and the Credit Agreement, as amended hereby, constitute the legal, valid and binding obligations of the Borrower, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as rights to indemnity may be limited by federal or state securities laws; (d) neither the execution, delivery and performance of this Third Amendment or the Credit Agreement, as amended hereby, nor the consummation of any transactions contemplated herein or therein, will conflict with (i) any Organization Documents of the Borrower or its Subsidiaries, (ii) any Law applicable to the Borrower or its Subsidiaries or (iii) any Contractual Obligation to which the Borrower or the Subsidiaries is a party; and (e) no authorization, approval, consent, or other action by, notice to, or filing with, any Governmental Authority or other Person not previously obtained is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, the Borrower of this Third Amendment or (ii) the acknowledgement by each Guarantor of this Third Amendment.

REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and delivery hereof, the Borrower represents and warrants that, as of the date hereof, hereof and both before and immediately after giving effect to this Third Amendmentthe amendments contemplated by the foregoing Section 1 and the effectiveness of the First Amendments to the Note Agreements (as defined in the Intercreditor Agreement), as amended: (a) the representations and warranties contained in the Credit Agreement and the other Loan Documents that are subject to materiality or Material Adverse Effect qualifications are true and correct in all respects on and as of the date hereof as if made on and as of such date, and the representations and warranties contained in the Credit Agreement and the other Loan Documents that are not subject to materiality or Material Adverse Effect qualifications are true and correct in all material respects on and as of the date hereof as made on and as of such date, except in each case to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that the representations and warranties contained in Sections 5.05(a) and (c) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and (b), respectively, of the Credit Agreement; (b) no event has occurred and is continuing which constitutes a Default or an Event of Default; (c) (i) the Borrower has full power and authority to execute and deliver this Third Amendment, (ii) this Third Amendment has been duly executed and delivered by the Borrower and (iii) this Third Amendment and the Credit Agreement, as amended hereby, constitute the legal, valid and binding obligations of the Borrower, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable Debtor Relief Laws debtor relief laws and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as rights to indemnity may be limited by federal or state securities laws; (d) neither the execution, delivery and performance of this Third Amendment or the Credit Agreement, as amended hereby, nor the consummation of any transactions contemplated herein or therein, will conflict with (i) any Organization Documents of the Law to which Borrower or any of its SubsidiariesSubsidiaries is subject, (ii) or any Law applicable indenture, agreement or other instrument to the which Borrower or any of its Subsidiaries or (iii) any Contractual Obligation to which the Borrower or the Subsidiaries of their respective property is a partysubject; and (e) no authorization, approval, consent, or other action by, notice to, or filing with, any Governmental Authority governmental authority or other Person not previously obtained (other than the Board of Directors of the Borrower and the Guarantors), is necessary or required in connection with (i) for the execution, delivery or performance by, or enforcement against, the by (i) Borrower of this Third Amendment or (ii) the acknowledgement by each Guarantor acknowledgment of this Third AmendmentAmendment by each Guarantor; and each Material Domestic Subsidiary has executed a Subsidiary Guaranty.

REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and delivery hereof, the Borrower represents and warrants that, as of the date hereof, and both before and immediately after giving effect to this Third Amendment: (a) the representations and warranties contained in the Credit Financing Agreement and the other Loan Documents that are subject to materiality or Material Adverse Effect qualifications are true and correct in all respects on and as of the date hereof as made on and as of such date, and the representations and warranties contained in the Credit Agreement and the other Loan Documents that are not subject to materiality or Material Adverse Effect qualifications are true and correct in all material respects on and as of the date hereof as made on and as of such date, except in each case to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that the representations and warranties contained in Sections 5.05(a) and (c) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and (b), respectively, of the Credit Agreement; (b) no event has occurred and is continuing which constitutes a Default or an Event of Default; (c) (i) the Borrower has full power and authority to execute and deliver this Third Fifth Amendment, the Revolving Note payable to the order of each New Lender (collectively, the “New Notes”) and the replacement Revolving Note payable to the order of each Lender whose Commitment has been amended pursuant to this Fifth Amendment (collectively, the “Replacement Notes”), (ii) this Third Amendment has Fifth Amendment, the New Notes and the Replacement Notes have been duly executed and delivered by the Borrower Borrower, and (iii) this Third Amendment Fifth Amendment, the New Notes, and the Credit Replacement Notes and the Financing Agreement, as amended hereby, constitute the legal, valid and binding obligations of the Borrower, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable Debtor Relief Laws debtor relief laws and by general principles principals of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as rights to indemnity may be limited by federal or state securities laws; (d) neither the execution, delivery and performance of this Third Amendment Fifth Amendment, the New Notes, the Replacement Notes, or the Credit Financing Agreement, as amended hereby, nor the consummation of any transactions contemplated herein or therein, will conflict with (i) any Organization Documents law or any articles of the incorporation, bylaws or other governing documents of Borrower or its Subsidiariesany Guarantor, (ii) or any Law applicable indenture, agreement or other instrument to the which Borrower or its Subsidiaries any Guarantor or (iii) any Contractual Obligation to which the Borrower or the Subsidiaries is a partyof their respective properties are subject; and (e) no authorization, approval, consent, or other action by, notice to, or filing with, any Governmental Authority governmental authority or other Person not previously obtained is necessary or required in connection with for (i) the execution, delivery or performance by, or enforcement against, the by Borrower of this Third Amendment Fifth Amendment, the New Notes or the Replacement Notes or (ii) the acknowledgement acknowledgment by each Guarantor of this Third Fifth Amendment. Conditions to Effectiveness. This Fifth Amendment shall be effective (and the Applicable Margins set forth in Section 18 of this Fifth Amendment will go into effect notwithstanding anything in the last paragraph thereof to the contrary) upon satisfaction or completion of the following: Agent shall have received counterparts of this Fifth Amendment executed by all Lenders; Agent shall have received counterparts of this Fifth Amendment executed by Borrower and acknowledged by each Guarantor; Agent shall have received a certified resolution of the Board of Directors of Borrower authorizing the execution, delivery and performance of this Fifth Amendment, the New Notes and the Replacement Notes; Agent shall have received an opinion of Borrower’s counsel, in form and substance satisfactory to Agent, with respect to matters set forth in Section 45(c), (d) and (e) of this Fifth Amendment; Agent shall have received a duly executed (i) New Note for each New Lender and (ii) Replacement Note for each Lender whose Commitment is being amended by this Fifth Amendment; Agent shall have received an amendment to the Guaranty executed by the Parent, in form and substance satisfactory to the Agent; Agent shall have received from Borrower in immediately available funds for (i) each Lender whose original commitment amount as set forth in such Lender’s commitment letter to Agent with respect to this Fifth Amendment was less than $25,000,000, an amount equal to the product of (A) 0.125% and (B) the amount of each such Lender’s Commitment (after giving effect to this Fifth Amendment), and (ii) for each Lender whose original commitment amount as set forth in such Lender’s commitment letter to Agent with respect to this Fifth Amendment was equal to or greater than $25,000,000, an amount equal to the product of (A) 0.175% and (B) the amount of each such Lender’s Commitment (after giving effect to this Fifth Amendment); Agent shall have received from Borrower in immediately available funds all other fees and amounts due and payable pursuant to that certain letter, dated November 25, 2003, among Borrower, Agent and Banc of America Securities LLC; Agent shall have received from Borrower a Borrowing Base Report setting forth a certification of Eligible Accounts and Eligible Inventory as of December 31, 2003; and Agent shall have received, in form and substance satisfactory to Agent and its counsel, such other documents, certificates and instruments as Agent shall require. Payments by Lenders. Upon the effectiveness of this Fifth Amendment, each Lender shall, to the extent necessary, make a payment to Agent in an am ount sufficient, upon the application of such payments by all Lenders to the reduction of outstanding Loans held by Lenders, to cause the principal amount of Loans outstanding made by each Lender to be in the amount of its pro rata share (after giving effect to this Fifth Amendment) of all outstanding Loans. Borrower hereby irrevocably authorizes each Lender to fund to Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding Loans held by other Lenders. If, as a result of the repayment of Loans provided for in this Section 47, any payment of LIBOR Based Loans occurs on a day which is not the last day of the applicable Interest Period, Borrower will pay to Agent for the benefit of any Lender holding a LIBOR Based Loan any Lender’s Consequential Loss incurred by such Lender resulting therefrom in accordance with paragraph 3.1.4 to the extent a LIBOR Based Loan is paid on other than the last day of an Interest Period as a result thereof. Upon the effective date of this Fifth Amendment, each New Lender and each Lender whose Commitment is increased as a result of this Fifth Amendment, shall be deemed to have irrevocably and unconditionally purchased and received, without recourse or warranty, an undivided participation in all outstanding Letter of Credit Liabilities in accordance with its pro rata share (after giving effect to this Fifth Amendment). Addition of New Lenders. The parties hereto agree that the provisions of paragraph 11.9 of the Financing Agreement shall not be applicable to the addition of the New Lenders pursuant to this Fifth Amendment. Each New Lender represents, warrants and acknowledges to Agent as follows: such New Lender confirms that is has received a copy of the Financing Agreement and all amendments thereto, together with copies of the financial statements and other information referred to in paragraphs 7.5 and 7.6 of the Financing Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Fifth Amendment; such New Lender will, independently and without reliance upon Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Financing Agreement and the other Loan Documents; such New Lender confirms that it is an Eligible Assignee; such New Lender appoints and authorizes Agent to take such action as agent on its behalf and exercise such powers under the Loan Documents as are delegated to Agent by the terms thereof, together with such powers as are reasonably incidental thereto; such New Lender agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender; neither Agent nor any Lender has made any representation or warranty or accrued any responsibility with respect to any statements, warranties or representations made in or in connection with this Fifth Amendment or any of the Loan Documents or the execution, legality, validity, enforceability or genuineness, sufficiency or value of this Fifth Amendment or any of the Loan Documents or any other instrument or document furnished pursuant hereto or thereto; and neither Agent nor any Lender has made any representation or warranty or assumed any responsibility with respect to the financial condition or results of operations of any Loan Party or the performance or observance by any Loan Party of its obligations under this Fifth Amendment or under the Loan Documents. Reference to the Financing Agreement. Upon the effectiveness of this Fifth Amendment, each reference in the Financing Agreement to “this Agreement”, “hereunder”, or words of like import shall mean and be a reference to the Financing Agreement, as affected and amended hereby. The Financing Agreement, as amended by the amendments referred to above, and the other Loan Documents shall remain in full force and effect and is hereby ratified and confirmed. Further Assurances. Borrower shall execute and deliver such further agreements, documents, instruments, and certificates in form and substance satisfactory to Agent, as Agent or any Lender may deem necessary or appropriate in connection with this Fifth Amendment. No Waiver. Nothing contained in this Fifth Amendment shall be construed as a waiver by Agent or Lenders of any covenants or provisions of the Financing Agreement, the other Loan Documents, this Fifth Amendment, or of any other contract or instrument between Borrower, Agent and/or Lenders, and the failure of Agent or Lenders at any time or times hereafter to require strict performance by Borrower of any provisions thereof shall not waive, affect or diminish any right of Agent or Lenders to thereafter demand strict compliance therewith. Agent and Lenders hereby reserve all rights granted under the Financing Agreement, and the other Loan Documents, this Fifth Amendment and an y other contract or instrument between Borrower, Agent and/or Lenders. Costs, Expenses and Taxes. Borrower agrees to pay on demand all costs and expenses of Agent in connection with the preparation, reproduction, execution and delivery of this Fifth Amendment and the other instruments and documents to be delivered hereunder (including the reasonable fees and out-of-pocket expenses of counsel for Agent with respect thereto). Guarantor’s Acknowledgment. By signing below, each Guarantor (a) acknowledges, consents and agrees to the execution, delivery and performance by Borrower of this Fifth Amendment, (b) acknowledges and agrees that its obligations in respect of its Guaranty (i) are not released, diminished, waived, modified, impaired or affected in any manner by this Fifth Amendment or any of the provisions contemplated herein and (ii) cover the Commitments as increased by this Fifth Amendment, (c) ratifies and confirms its obligations under its Guaranty, and (d) acknowledges and agrees that it has no claims or offsets against, or defenses or counterclaims to, its Guaranty. Execution in Counterparts. This Fifth Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument. For purposes of this Fifth Amendment, a counterpart hereof (or signature page thereto) signed and transmitted by any Person party hereto to Agent (or its counsel) by facsimile machine, telecopies or electronic mail is to be treated as an original. The signature of such Person thereon, for purposes hereof, is to be considered as an original signature, and the counterpart (or signature page thereto) so transmitted is to be considered to have the same binding effect as an original signature on an original document. Governing Law; Binding Effect. This Fifth Amendment shall be governed by and construed in accordance with the laws of the State of Texas applicable to agreements made and to be performed entirely within such state, provided that each party shall retain all rights arising under federal law, and shall be binding upon the parties hereto and their respective successors and assigns. Headings. Section headings in this Fifth Amendment are included herein for convenience of reference only and shall not constitute a part of this Fifth Amendment for any other purpose. Entire Agreement. THE FINANCING AGREEMENT, AS AMENDED BY THIS FIFTH AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS AMONG THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES. Waiver of Trial by Jury. THE PARTIES HERETO AGREE THAT NO PARTY HERETO SHALL REQUEST A TRIAL BY JURY IN THE EVENT OF LITIGATION BETWEEN OR AMONG THEM CONCERNING THIS FIFTH AMENDMENT OR ANY OTHER LOAN DOCUMENTS OR ANY CLAIMS OR TRANSACTIONS IN CONNECTION THEREWITH, IN EITHER A STATE OR FEDERAL COURT, THE RIGHT TO TRIAL BY JURY BEING EXPRESSLY WAIVED BY ALL PARTIES HERETO. AGENT, EACH LENDER AND BORROWER ACKNOWLEDGES THAT SUCH WAIVER IS MADE WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE NATURE OF THE RIGHTS AND BENEFITS WAIVED HEREBY, AND WITH THE BENEFIT OF ADVICE OF COUNSEL OF ITS CHOOSING.

REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and delivery hereof, each of the Borrower Guarantors represents and warrants that, as of the date hereof, and both before and immediately after giving effect to this Third Amendment: (a) the representations and warranties contained in the Credit Guaranty Agreement and the other Loan Documents that are subject to materiality or Material Adverse Effect qualifications are true and correct in all respects on and as of the date hereof as made on and as of such date, and the representations and warranties contained in the Credit Agreement and the other Loan Documents that are not subject to materiality or Material Adverse Effect qualifications are true and correct in all material respects on and as of the date hereof as made on and as of such date, except in each case to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of on such earlier date, and except that the representations and warranties contained in Sections 5.05(a) and (c) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and (b), respectively, of the Credit Agreement; (b) no event has occurred and is continuing which constitutes a Default or an Event of Default; (c) (i) the Borrower each Guarantor has full power and authority to execute and deliver this Third Fifth Amendment, (ii) this Third Fifth Amendment has been duly executed and delivered by the Borrower Guarantors, and (iii) this Third Fifth Amendment and the Credit Guaranty Agreement, as amended hereby, constitute the legal, valid and binding obligations of the BorrowerGuarantors, as the case may be, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as rights to indemnity may be limited by federal or state securities laws; (d) neither the execution, delivery and performance of this Third Fifth Amendment or the Credit Guaranty Agreement, as amended hereby, nor the consummation of any transactions contemplated herein or therein, will conflict with (i) any Law or Organization Documents of any of the Borrower Guarantors, or its Subsidiariesany indenture, (ii) any Law applicable to the Borrower agreement or its Subsidiaries or (iii) any Contractual Obligation other instrument to which the Borrower Guarantors or the Subsidiaries any of their respective property is a partysubject; and (e) no authorization, approval, consent, or other action by, notice to, or filing with, any Governmental Authority or other Person not previously obtained is necessary or required in connection with (i) for the execution, delivery or performance by, or enforcement against, by any of the Borrower Guarantors of this Third Amendment or (ii) the acknowledgement by each Guarantor of this Third Fifth Amendment. 3.

REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and delivery hereof, the Borrower represents and warrants that, as of the date hereof, and both before and immediately after giving effect to this Third Seventh Amendment: (a) the representations and warranties of the Borrower and each other Loan Party contained in the Credit Agreement Article II, Article V and the each other Loan Documents Document, or which are contained in any document that has been furnished under or in connection herewith or therewith, are subject (i) with respect to representations and warranties that contain a materiality or Material Adverse Effect qualifications are qualification, true and correct in all respects on and as of the date hereof as made on and as of such date, and the (ii) with respect to representations and warranties contained in the Credit Agreement and the other Loan Documents that are do not subject to contain a materiality or Material Adverse Effect qualifications qualification, are true and correct in all material respects on respects, and as of the date hereof as made on and as of such dateexcept that for purposes hereof, except in each case (x) to the extent that Administrative Agent has been previously notified of any changes in the facts on which such representations and warranties specifically refer were based in a certificate delivered to an earlier dateAdministrative Agent pursuant to Section 6.02(b) of the Credit Agreement, in which case they shall be true and correct as of such earlier date, and except that (y) the representations and warranties contained in Sections 5.05(a) and (cb) of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 6.01(a) and (b), respectively, and (z) any representation and warranty that by its terms is made only as of an earlier date, is true and correct in all material respects (or in the Credit Agreementcase of such representations and warranties that are subject to a materiality qualification, in all respects) as of such earlier date; (b) no event has occurred and is continuing which constitutes a Default or Event of Defaultexists; (c) (i) the Borrower and each Guarantor has full power and authority to execute and deliver this Third Seventh Amendment, (ii) this Third Seventh Amendment has been duly executed and delivered by the Borrower and each Guarantor and (iii) this Third Seventh Amendment and the Credit Agreement, as amended hereby, constitute the legal, valid and binding obligations of the BorrowerBorrower and each Guarantor, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and except as rights to indemnity may be limited by federal or state securities laws; 8 (d) neither the execution, delivery and performance of this Third Seventh Amendment or the Credit Agreement, as amended hereby, nor the consummation of any transactions contemplated herein or therein, will conflict with (i) conflict with any Organization Documents of the Borrower or its Subsidiariesany Guarantor, (ii) violate any Applicable Law applicable to the Borrower or its Subsidiaries any Guarantor in any material respect (other than failures to obtain governmental authorizations, make filings or provide notices, etc. which do not violate Section 5.03 of the Credit Agreement), or (iii) conflict with any Contractual Obligation to which the Borrower or the Subsidiaries a Guarantor is a partyparty or affecting the Borrower, any Guarantor or the properties of the Borrower or any of its Subsidiaries or any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower, any Guarantor or their property is subject, except in each case referred to in this clause (iii) for such violations, breaches and defaults that, individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect; and (e) no authorization, approval, consent, or other action by, notice to, or filing with, any Governmental Authority or other Person not previously obtained is necessary required to be obtained or required in connection with made by (i) the Borrower as a condition to the execution, delivery or performance by, or enforcement against, by the Borrower of this Third Seventh Amendment or (ii) any Guarantor as a condition to the acknowledgement by each any Guarantor of this Third Seventh Amendment. 4.