THE
TERMS OF THIS AGREEMENT.
EACH BORROWER AND GUARANTOR:
(I) CERTIFIES THAT
NEITHER ADMINISTRATIVE AGENT, ANY LENDER NOR ANY REPRESENTATIVE, AGENT OR
ATTORNEY ACTING FOR OR ON BEHALF OF ADMINISTRATIVE AGENT OR ANY LENDER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ADMINISTRATIVE AGENT AND LENDERS WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE ANY OF THE WAIVERS PROVIDED FOR
IN THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS AND (II) ACKNOWLEDGES
THAT IN ENTERING INTO THIS AGREEMENT AND THE OTHER FINANCING AGREEMENTS,
ADMINISTRATIVE AGENT AND LENDERS ARE RELYING UPON, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 11.1 AND ELSEWHERE HEREIN
AND THEREIN.
11.2
WAIVER OF NOTICES.
EACH BORROWER AND GUARANTOR HEREBY EXPRESSLY
WAIVES DEMAND, PRESENTMENT, PROTEST AND NOTICE OF PROTEST AND NOTICE OF DISHONOR
WITH RESPECT TO ANY AND ALL INSTRUMENTS AND CHATTEL PAPER, INCLUDED IN OR
EVIDENCING ANY OF THE OBLIGATIONS OR THE COLLATERAL, AND ANY AND ALL OTHER
DEMANDS AND NOTICES OF ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO THE
OBLIGATIONS, THE COLLATERAL AND THIS AGREEMENT, EXCEPT SUCH AS ARE EXPRESSLY
PROVIDED FOR HEREIN.
NO NOTICE TO OR DEMAND ON ANY BORROWER OR GUARANTOR WHICH
ADMINISTRATIVE AGENT OR ANY LENDER MAY ELECT TO GIVE SHALL ENTITLE SUCH BORROWER
OR GUARANTOR TO ANY OTHER OR FURTHER NOTICE OR DEMAND TO WHICH SUCH BORROWER OR
GUARANTOR IS NOT OTHERWISE ENTITLED IN THE SAME, SIMILAR OR OTHER CIRCUMSTANCES.
170
11.3
AMENDMENTS AND WAIVERS.
(A)
NEITHER THIS AGREEMENT NOR ANY OTHER FINANCING AGREEMENT NOR ANY TERMS
HEREOF OR THEREOF MAY BE AMENDED, WAIVED, DISCHARGED OR TERMINATED UNLESS SUCH
AMENDMENT, WAIVER, DISCHARGE OR TERMINATION IS IN WRITING SIGNED BY
ADMINISTRATIVE AGENT AND THE REQUIRED LENDERS OR AT ADMINISTRATIVE AGENT'S
OPTION, BY ADMINISTRATIVE AGENT WITH THE AUTHORIZATION OF THE REQUIRED LENDERS,
AND AS TO AMENDMENTS TO ANY OF THE FINANCING AGREEMENTS (OTHER THAN WITH RESPECT
TO ANY PROVISION OF SECTION 12 HEREOF), BY LEAD BORROWER (FOR ITSELF AND THE
OTHER BORROWERS); EXCEPT, THAT,
(I)
ANY AMENDMENT, WAIVER, DISCHARGE OR TERMINATION WITH RESPECT TO
THE FOLLOWING SHALL REQUIRE THE CONSENT OF ADMINISTRATIVE AGENT AND ALL LENDERS:
(A)
AMEND, MODIFY OR WAIVE ANY TERMS OF THE DEFINITION OF "PRO RATA SHARE"
OR THIS SECTION 11.3 HEREOF,
(B)
THE CHANGE OF ANY PERCENTAGE SPECIFIED IN (OR ANY AMENDMENT TO) THE
DEFINITION OF REQUIRED LENDERS, REQUIRED TRANCHE A LENDERS, REQUIRED TRANCHE A-1
LENDERS, REQUIRED TRANCHE A-2 LENDERS OR SUPERMAJORITY LENDERS,
(C)
REDUCE THE SCHEDULED REDUCTIONS IN ADVANCE RATES FOR ANY OF THE TRANCHE
A REAL ESTATE AVAILABILITY, THE TRANCHE A EQUIPMENT AVAILABILITY OR THE TRANCHE
A ROLLING STOCK AVAILABILITY, OR REDUCE THE SCHEDULED AMORTIZATION OF THE
TRANCHE A-2 TERM LOANS,
(D)
RELEASE ANY COLLATERAL (EXCEPT AS EXPRESSLY REQUIRED HEREUNDER OR UNDER
ANY OF THE OTHER FINANCING AGREEMENTS OR APPLICABLE LAW AND EXCEPT AS PERMITTED
UNDER SECTION 12.11(B) HEREOF) OR RELEASE OF ANY GUARANTOR,
(E)
CONSENT TO THE ASSIGNMENT OR TRANSFER BY ANY BORROWER OR GUARANTOR OF
ANY OF THEIR RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT,
(F)
AGREE TO THE