satisfaction of the conditions set forth in Section 3 hereof, the
Existing Note Purchase Agreement is hereby amended in the manner specified in
Exhibit 1.1 (such amendments herein referred to as the "Amendments").
1.3.
AFFIRMATION OF OBLIGATIONS UNDER EXISTING NOTE
PURCHASE AGREEMENT AND NOTES.
The Obligors hereby acknowledge and affirm all of their respective obligations
under the terms of the Existing Note Purchase Agreement and the Notes.
The
execution, delivery and effectiveness of this Agreement shall not be deemed,
except as expressly provided herein, (a) to operate as a waiver of any right,
power or remedy of any of the Noteholders under the Existing Note Purchase
Agreement or the Notes, nor constitute a waiver of any provision thereunder, or
(b) to prejudice any rights which any Noteholder now has or may have in the
future under or in connection with the Note Purchase Agreement or the Notes or
under applicable law.
2.
WARRANTIES AND REPRESENTATIONS.
To induce the Noteholders to enter into this Agreement, each of the Obligors
represents and warrants to each of the Noteholders that as of the Effective Date
(as hereinafter defined):
2.1.
CORPORATE AND OTHER ORGANIZATION AND AUTHORITY.
(A)
EACH OBLIGOR IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND
IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF INCORPORATION, AND IS
DULY QUALIFIED AS A FOREIGN CORPORATION AND IS IN GOOD STANDING IN EACH
JURISDICTION IN WHICH SUCH QUALIFICATION IS REQUIRED BY LAW, OTHER THAN THOSE
JURISDICTIONS AS TO WHICH THE FAILURE TO BE SO QUALIFIED OR IN GOOD STANDING
COULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT; AND
(B)
EACH OF THE OBLIGORS HAS THE REQUISITE CORPORATE POWER AND
AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM ITS OBLIGATIONS
HEREUNDER.
2.2.
AUTHORIZATION, ETC.
This Agreement has been duly authorized by all necessary corporate action on the
part of the Obligors.
Each of this Agreement, the Note Purchase Agreement and
the Notes constitutes a
2
legal, valid and binding obligation of the Obligors, enforceable, in each case,
against such Obligor in accordance with its terms, except as such enforceability
may be limited by
(A)
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR
OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND
(B)
GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER SUCH
ENFORCEABILITY IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW).
2.3.
NO CONFLICTS, ETC.
The execution and delivery by each Obligor of this Agreement and the performance
by such Obligor of its obligations under each of this Agreement, the Note
Purchase Agreement and the Notes do not conflict with, result in any breach in
any of the provisions of, constitute a default under, violate or result in the
creation of any Lien upon any property of such Obligor under the provisions of:
(A)
ANY CHARTER DOCUMENT, CONSTITUTIVE DOCUMENT, AGREEMENT WITH
SHAREHOLDERS OR MEMBERS, BYLAWS OR ANY OTHER ORGANIZATIONAL OR GOVERNING
AGREEMENT OF SUCH OBLIGOR;
(B)
ANY AGREEMENT, INSTRUMENT OR CONVEYANCE BY WHICH SUCH