OWING TO THE NON-ASSIGNING LENDERS
UNDER THE CREDIT DOCUMENTS.
(B)
ALL APPLICABLE NOTICE PERIODS, MINIMUM
PREPAYMENT REQUIREMENTS AND APPLICATION OF PAYMENT PROVISIONS OF THE CURRENT
CREDIT AGREEMENT (INCLUDING THOSE CONTAINED IN SECTION 2.5(B) AND
2.5(G) THEREOF) ARE WAIVED TO EFFECTUATE THE AMENDMENT SET FORTH IN THIS
SECTION 15.
THE REQUIREMENT CONTAINED IN THE LAST SENTENCE OF SECTION 2.5(B) OF
THE CURRENT CREDIT AGREEMENT REQUIRING THE BORROWER TO BE ABLE TO INCUR
ADDITIONAL REVOLVING OUTSTANDINGS AS A CONDITION TO PREPAY THE TERM LOANS IS
HEREBY WAIVED.
(c)
Upon application of the proceeds of the
Loan referred to in Section 15(a) above in accordance with such Section 15(a),
the rights and obligations of the Non-Assigning Lenders shall be terminated,
released and discharged except those indemnity
15
RIGHTS THAT EXPRESSLY SURVIVE THE TERMINATION OF THE CURRENT CREDIT AGREEMENT
AND THE PAYMENT OF THE OBLIGATIONS.
THE AGREEMENTS SET FORTH IN THIS SECTION 15 SHALL BECOME EFFECTIVE WHEN THE
BORROWER, HOLDINGS AND ASSIGNORS SIGNATORY HERETO, BOFA AND DBTCA (IN EACH
INSTANCE AS LENDERS UNDER THE CURRENT CREDIT AGREEMENT) CONSTITUTING IN THE
AGGREGATE THE MAJORITY LENDERS UNDER EACH TRANCHE AND THE REQUIRED LENDERS HAVE
EXECUTED AND DELIVERED THIS AGREEMENT.
16.
MISCELLANEOUS PROVISIONS.
(A)
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN
SUCH STATE, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS.
(B)
ENTIRE AGREEMENT.
THIS AGREEMENT SETS FORTH
THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT MATTER
HEREOF, AND NO TERM OR PROVISION OF THIS AGREEMENT MAY BE AMENDED, CHANGED,
WAIVED, DISCHARGED OR TERMINATED ORALLY OR OTHERWISE, EXCEPT IN A WRITING SIGNED
BY EACH SUCH PARTY.
(C)
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN ONE OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE AN ORIGINAL AND ALL
OF WHICH, TAKEN TOGETHER, SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
(D)
SURVIVAL OF TERMS.
ALL REPRESENTATIONS AND
WARRANTIES MADE HEREIN AND INDEMNITIES PROVIDED FOR HEREIN SHALL SURVIVE THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(E)
BINDING EFFECT.
THIS AGREEMENT SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
NONE OF THE PARTIES HERETO MAY ASSIGN OR TRANSFER ANY
OF ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE PRIOR CONSENT OF
ALL OF THE OTHER PARTIES.
THE PRECEDING SENTENCE SHALL NOT LIMIT THE RIGHTS OF
EITHER OF THE ASSIGNEES TO ASSIGN OR TRANSFER ITS RIGHTS AND OBLIGATIONS UNDER
THE AMENDED AND RESTATED CREDIT AGREEMENT AND OTHER CREDIT DOCUMENTS IN
ACCORDANCE WITH THE PROVISIONS THEREOF.
16
EXHIBIT S
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their respective officials, officers or agents thereunto duly
authorized as of the date first above written.
ASSIGNEES
BANK OF AMERICA, N.A.
By:
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By:
Name:
Title:
By:
Name:
Title:
CURRENT ADMINISTRATIVE AGENT AND
CURRENT COLLATERAL AGENT
DEUTSCHE BANK TRUST COMPANY
AMERICAS, in