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 the Administrative Agent (or its
counsel) by facsimile machine, telecopier 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.
10.
GOVERNING LAW.
This Fifth Amendment and the
other Loan Documents and any claim, controversy, dispute or cause of action
(whether in contract or tort or otherwise) based upon, arising out of or
relating to this Fifth Amendment or any other Loan Document (except, as to any
other Loan Document, as expressly set forth therein) and the transactions
contemplated hereby and thereby shall be governed by, and construed in
accordance with, the law of the State of New York.
11.
WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS FIFTH AMENDMENT OR ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS FIFTH AMENDMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
12.
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.
13.
ENTIRE AGREEMENT.
THE CREDIT AGREEMENT, AS
AMENDED AND AFFECTED BY THIS FIFTH AMENDMENT, AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
FIFTH AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT - Page 8
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS BETWEEN THE PARTIES.
THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN
THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
FIFTH AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT - Page 9
IN WITNESS WHEREOF, this Fifth Amendment is executed as of the date first set
forth above.
BORROWER:
GLOBAL POWER EQUIPMENT GROUP INC.
By:
/s/ Raymond K. Guba
Name:
Raymond K. Guba
Title:
Senior Vice President and Chief Financial Officer
FIFTH AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT - Signature Page
ADMINISTRATIVE AGENT AND LENDERS:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent,