NOT PROHIBITED BY LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH
THE LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED
THEREWITH, BEFORE OR AFTER MATURITY; (B) WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY "SPECIAL DAMAGES", AS DEFINED BELOW, (C) CERTIFIES THAT NO PARTY
HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND
(D) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS
SECTION 11.21.
AS USED IN THIS SECTION 11.21, "SPECIAL DAMAGES" INCLUDES ALL
SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (REGARDLESS OF HOW
NAMED), BUT DOES NOT INCLUDE ANY PAYMENTS OR FUNDS WHICH ANY PARTY HERETO HAS
EXPRESSLY PROMISED TO PAY OR DELIVER TO ANY OTHER PARTY HERETO.
11.22
Intercreditor Agreement.
Each Lender (a) hereby
agrees that it will be bound by and take no actions contrary to the
Intercreditor Agreement and (b) hereby irrevocably authorizes and instructs the
Administrative Agent to enter into the Intercreditor Agreement on its behalf.
11.23
Amendment and Restatement.
(A)
FROM AND AFTER THE EFFECTIVE TIME, THIS
AGREEMENT AMENDS AND RESTATES IN ITS ENTIRETY THE EXISTING CREDIT AGREEMENT; THE
NOTES ISSUED UNDER THIS AGREEMENT, IF ANY, AMEND AND RESTATE THE "NOTES" (AS
DEFINED IN THE EXISTING CREDIT AGREEMENT) ISSUED UNDER THE EXISTING CREDIT
AGREEMENT; AND THE EXISTING CREDIT AGREEMENT SHALL THEREAFTER BE OF NO FURTHER
FORCE AND EFFECT EXCEPT TO EVIDENCE (I) THE INCURRENCE BY ANY COMPANY OF THE
"OBLIGATIONS" UNDER AND AS DEFINED THEREIN (WHETHER OR NOT SUCH "OBLIGATIONS"
ARE CONTINGENT AS OF THE EFFECTIVE TIME), (II) THE REPRESENTATIONS AND
WARRANTIES MADE BY ANY LOAN PARTY PRIOR TO THE EFFECTIVE TIME AND (III) ANY
ACTION OR OMISSION PERFORMED OR REQUIRED TO BE PERFORMED PURSUANT TO THE
EXISTING CREDIT AGREEMENT PRIOR TO THE EFFECTIVE TIME (INCLUDING ANY FAILURE,
PRIOR TO THE EFFECTIVE TIME, TO COMPLY WITH THE COVENANTS CONTAINED IN SUCH
EXISTING CREDIT AGREEMENT).
THE AMENDMENTS AND RESTATEMENTS SET FORTH HEREIN
SHALL NOT CURE ANY BREACH THEREOF OR ANY "DEFAULT" OR "EVENT OF DEFAULT" UNDER
AND AS DEFINED IN THE EXISTING CREDIT AGREEMENT EXISTING PRIOR TO THE EFFECTIVE
93
TIME.
THIS AGREEMENT AND THE NOTES, IF ANY, ISSUED DO NOT CONSTITUTE AND SHALL
NOT BE CONSTRUED TO EVIDENCE A NOVATION OF OR A PAYMENT AND READVANCE OF ANY OF
THE "OBLIGATIONS" (AS DEFINED IN THE EXISTING CREDIT AGREEMENT) HERETOFORE
OUTSTANDING UNDER THE EXISTING CREDIT AGREEMENT, IT BEING THE INTENTION OF THE
PARTIES HERETO THAT THIS AGREEMENT PROVIDE FOR THE TERMS AND CONDITIONS OF, AND
THE NOTES ISSUED, IF ANY, EVIDENCE,