RIGHTS
GENERALLY OR BY EQUITY PRINCIPLES OF GENERAL APPLICATION, (IV) EXCEPT AS
DISCLOSED ON THE SUPPLEMENTAL DISCLOSURE SCHEDULE ATTACHED HERETO AS EXHIBIT B
AND THE DISCLOSURE SCHEDULE ATTACHED TO THE ORIGINAL CREDIT AGREEMENT, ALL OF
THE REPRESENTATIONS
2
AND WARRANTIES CONTAINED IN SECTION 11 OF THE CREDIT AGREEMENT ARE TRUE AND
CORRECT WITH THE SAME FORCE AND EFFECT AS IF MADE ON AND AS OF THE DATE OF THIS
AGREEMENT, AND (V) AFTER GIVING EFFECT TO THIS AGREEMENT, THERE IS NO EXISTING
DEFAULT.
6.
REAFFIRMATION. EACH BORROWER HEREBY REPRESENTS, WARRANTS, ACKNOWLEDGES
AND CONFIRMS THAT (I) THE ORIGINAL CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS
REMAIN IN FULL FORCE AND EFFECT AS AMENDED BY THIS AGREEMENT, (II) NO BORROWER
HAS A DEFENSE TO ITS OBLIGATIONS UNDER THE ORIGINAL CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS, (III) THE SECURITY INTERESTS OF THE ADMINISTRATIVE AGENT
(HELD FOR THE RATABLE BENEFIT OF THE LENDERS) UNDER THE SECURITY DOCUMENTS
SECURE ALL THE LOAN OBLIGATIONS UNDER THE ORIGINAL CREDIT AGREEMENT, CONTINUE IN
FULL FORCE AND EFFECT, AND HAVE THE SAME PRIORITY AS BEFORE THIS AGREEMENT, AND
(IV) NO BORROWER HAS A CLAIM AGAINST ADMINISTRATIVE AGENT OR ANY LENDER ARISING
FROM OR IN CONNECTION WITH THE ORIGINAL CREDIT AGREEMENT OR THE OTHER LOAN
DOCUMENTS AND ANY SUCH CLAIM IS HEREBY IRREVOCABLY WAIVED AND RELEASED AND
DISCHARGED FOREVER.
7.
Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Missouri without giving effect to choice or conflicts
of law principles thereunder.
8.
Fees and Expenses. Borrowers shall promptly pay to Administrative Agent
an amount equal to all reasonable and documented third party fees, costs and
expenses incurred by the Administrative Agent in connection with the
preparation, negotiation, execution and delivery of this Third Amendment to
Credit Facilities Agreement.
9.
Section Titles. The section titles in this Agreement are for convenience
of reference only and shall not be construed so as to modify any provisions of
this Agreement.
10.
Counterparts; Facsimile Transmissions. This Agreement may be executed in
one or more counterparts and on separate counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
Signatures to this Agreement may be given by facsimile or other
electronic transmission, and such signatures shall be fully binding on the party
sending the same.
11.
Incorporation By Reference. Administrative Agent, Lenders and Borrowers
hereby agree that all of the terms of the Loan Documents are incorporated in and
made a part of this Agreement by this reference.
12.
Notice - Oral Commitments Not Enforceable. The following notice is given
pursuant to Section 432.045 of the Missouri Revised Statutes; nothing contained
in such notice shall be deemed to limit or modify the terms of the Loan
Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE.
TO PROTECT YOU (BORROWER) AND US (CREDITOR) FROM
MISUNDERSTANDING OR