are no
unwritten oral agreements between the parties. This Agreement may be executed in
one or more counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND ALL
CLAIMS AND CONTROVERSIES ARISING OUT OF THE SUBJECT MATTER HEREOF WHETHER
SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE
APPLICATION OF ANY OTHER LAW (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC
RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE
SECURITY INTEREST).
THE PROVISIONS OF THE CREDIT AGREEMENT AND THE NEW CREDIT AGREEMENT UNDER THE
HEADINGS "CONSENT TO JURISDICTION" AND "WAIVER OF JURY TRIAL" ARE INCORPORATED
HEREIN BY THIS REFERENCE AND SUCH INCORPORATION SHALL SURVIVE ANY TERMINATION OF
THE CREDIT AGREEMENT AND/OR THE NEW CREDIT AGREEMENT, AS APPLICABLE.
THIS AGREEMENT AMENDS AND RESTATES THE ORIGINAL PLEDGE AND SECURITY AGREEMENT.
THE OBLIGATIONS OF THE GRANTORS UNDER THE ORIGINAL PLEDGE AND SECURITY AGREEMENT
AND THE GRANT OF LIENS AND SECURITY INTEREST ON THE COLLATERAL BY THE GRANTORS
35
UNDER THE ORIGINAL PLEDGE AND SECURITY AGREEMENT SHALL CONTINUE UNDER THIS
AGREEMENT, AND SHALL NOT IN ANY EVENT BE TERMINATED, EXTINGUISHED OR ANNULLED,
BUT SHALL HEREAFTER BE GOVERNED BY THIS AGREEMENT. ALL REFERENCES TO THE
ORIGINAL PLEDGE AND SECURITY AGREEMENT IN ANY CREDIT DOCUMENT (OTHER THAN THIS
AGREEMENT) OR OTHER DOCUMENT OR INSTRUMENT DELIVERED IN CONNECTION THEREWITH
SHALL BE DEEMED TO REFER TO THIS AGREEMENT AND THE PROVISIONS HEREOF. IT IS
UNDERSTOOD AND AGREED THAT THE ORIGINAL PLEDGE AND SECURITY AGREEMENT IS BEING
AMENDED AND RESTATED BY ENTRY INTO THIS AMENDED AND RESTATED PLEDGE AND SECURITY
AGREEMENT ON THE DATE HEREOF.
For the avoidance of doubt, no amendment, modification, termination or waiver of
any provision of this Agreement, or consent to any departure by any Grantor
therefrom shall in any event be effective, and no action shall be required to be
taken (or not taken) by the Administrative Agent hereunder, without the written
concurrence of (i) so long as no Event of Default shall have occurred and be
continuing, the Requisite Lenders (as defined under the Credit Agreement) (or
such other Lenders as may be required pursuant to Section 10.5 of the Credit
Agreement) and the Requisite Lenders (as defined under the New Credit Agreement)
(or such other Lenders as may be required pursuant to Section 10.5 of the Credit
Agreement) and (ii) so long as any Event of Default shall have occurred and be
continuing, the Required Secured Parties and, in each