AND WARRANT TO THE LENDER, IN EACH CASE AFTER GIVING
EFFECT TO THIS AGREEMENT, AS FOLLOWS:
(A)
EACH OF THE BORROWER AND THE GUARANTOR HAS
THE RIGHT, POWER AND CAPACITY AND HAS BEEN DULY AUTHORIZED AND EMPOWERED BY ALL
REQUISITE CORPORATE AND SHAREHOLDER ACTION TO ENTER INTO, EXECUTE, DELIVER AND
PERFORM THIS AGREEMENT AND ALL AGREEMENTS, DOCUMENTS AND INSTRUMENTS EXECUTED
AND DELIVERED PURSUANT TO THIS AGREEMENT.
(B)
THIS AGREEMENT CONSTITUTES EACH OF THE
BORROWER'S AND THE GUARANTOR'S LEGAL, VALID AND BINDING OBLIGATION, ENFORCEABLE
AGAINST IT, EXCEPT AS ENFORCEMENT THEREOF MAY BE SUBJECT TO THE EFFECT OF ANY
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS
AFFECTING CREDITORS' RIGHTS GENERALLY AND GENERAL PRINCIPLES OF EQUITY
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS SOUGHT IN A PROCEEDING IN EQUITY OR
AT LAW OR OTHERWISE).
(C)
THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT BY THE BORROWER AND THE GUARANTOR DOES NOT AND WILL NOT VIOLATE
SUCH PARTY'S CERTIFICATE OF INCORPORATION, BY-LAWS, CERTIFICATE OF FORMATION OR
OPERATING AGREEMENT (AS APPLICABLE), ANY LAW, RULE, REGULATION, ORDER, WRIT,
JUDGMENT, DECREE OR AWARD APPLICABLE TO THE BORROWER OR THE GUARANTOR OR ANY
CONTRACTUAL PROVISION TO WHICH THE BORROWER OR THE GUARANTOR IS A PARTY OR TO
WHICH THE BORROWER OR THE GUARANTOR OR ANY OF THEIR RESPECTIVE PROPERTIES IS
SUBJECT.
(D)
NO AUTHORIZATION OR APPROVAL OR OTHER ACTION
BY, AND NO NOTICE TO OR FILING OR REGISTRATION WITH, ANY GOVERNMENTAL AUTHORITY
OR REGULATORY BODY (OTHER THAN THOSE WHICH HAVE BEEN OBTAINED AND ARE IN FORCE
AND EFFECT) IS REQUIRED IN CONNECTION WITH THE EXECUTION, DELIVERY AND
PERFORMANCE BY THE BORROWER OR THE GUARANTOR OF THIS AGREEMENT AND ALL
AGREEMENTS, DOCUMENTS AND INSTRUMENTS EXECUTED AND DELIVERED PURSUANT TO THIS
AGREEMENT.
(E)
NO EVENT OF DEFAULT OR DEFAULT EXISTS UNDER
THE CREDIT AGREEMENT OR WOULD EXIST AFTER GIVING EFFECT TO THIS AGREEMENT.
5.
MISCELLANEOUS.
THE PARTIES HERETO
HEREBY FURTHER AGREE AS FOLLOWS:
(A)
PAYMENT OF COSTS.
THE BORROWER HEREBY
AGREES TO PAY ALL REASONABLE OUT-OF-POCKET COSTS AND EXPENSES (EVIDENCED BY
INVOICES IN REASONABLE DETAIL) INCURRED BY THE LENDER (INCLUDING THE REASONABLE
FEES AND EXPENSES OF ITS COUNSEL) IN CONNECTION WITH THE PREPARATION, EXECUTION
AND DELIVERY OF THIS AGREEMENT.
(B)
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN ONE OR MORE COUNTERPARTS, EACH OF WHICH, WHEN EXECUTED AND
DELIVERED, SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH COUNTERPARTS,
TAKEN TOGETHER, SHALL CONSTITUTE BUT ONE AND THE SAME DOCUMENT WITH
2
THE SAME FORCE AND EFFECT AS IF THE SIGNATURES OF ALL OF THE PARTIES WERE ON A
SINGLE COUNTERPART, AND IT SHALL NOT BE NECESSARY IN MAKING PROOF OF THIS
AGREEMENT TO PRODUCE MORE THAN ONE (1) SUCH COUNTERPART.
(C)
HEADINGS.
HEADINGS USED IN THIS AGREEMENT
ARE FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT AFFECT THE CONSTRUCTION OF
THIS AGREEMENT.
(D)
INTEGRATION.
THIS AGREEMENT, THE OTHER
AGREEMENTS AND DOCUMENTS EXECUTED AND DELIVERED PURSUANT TO THIS AGREEMENT, THE
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE AGREEMENT
AMONG THE PARTIES HERETO WITH RESPECT TO THE