ANY
OTHER LOAN DOCUMENTS TO THE "AGREEMENT", "LOAN AGREEMENT" OR "CREDIT AGREEMENT"
SHALL MEAN AND BE A REFERENCE TO THE LOAN AGREEMENT AS AMENDED AND MODIFIED BY
THIS AMENDMENT.
SECTION 9.
REPRESENTATIONS.
BORROWER HEREBY REPRESENTS AND WARRANTS TO AGENT
AND LENDERS AS FOLLOWS:
(I) IT IS DULY INCORPORATED OR ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF
ORGANIZATION; (II) THE EXECUTION, DELIVERY AND PERFORMANCE BY IT OF THIS
AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED AND/OR DELIVERED IN CONNECTION
HEREWITH ARE WITHIN ITS POWERS, HAVE BEEN DULY AUTHORIZED, AND DO NOT CONTRAVENE
(A) ITS ARTICLES OF ORGANIZATION, OPERATING AGREEMENT, OR OTHER ORGANIZATIONAL
DOCUMENTS, OR (B) ANY APPLICABLE LAW; (III) EXCEPT AS PROVIDED UNDER THE SEVENTH
AMENDMENT TO NOTE PURCHASE AGREEMENT, NO CONSENT, LICENSE, PERMIT, APPROVAL OR
AUTHORIZATION OF, OR REGISTRATION, FILING OR DECLARATION WITH ANY GOVERNMENTAL
AUTHORITY OR OTHER PERSON, IS REQUIRED IN CONNECTION WITH THE EXECUTION,
DELIVERY, PERFORMANCE, VALIDITY OR ENFORCEABILITY OF THIS AMENDMENT OR ANY OTHER
LOAN DOCUMENTS EXECUTED AND/OR DELIVERED IN CONNECTION HEREWITH BY OR AGAINST
IT; (IV) THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED AND/OR DELIVERED
IN CONNECTION HEREWITH HAVE BEEN DULY EXECUTED AND DELIVERED BY IT; (V) THIS
AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED AND/OR DELIVERED IN CONNECTION
HEREWITH CONSTITUTE ITS LEGAL, VALID AND BINDING OBLIGATION ENFORCEABLE AGAINST
IT IN ACCORDANCE WITH ITS TERMS, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS
AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY OR BY GENERAL
PRINCIPLES OF EQUITY; (VI) AFTER GIVING EFFECT TO THIS AMENDMENT, NO DEFAULT OR
EVENT OF DEFAULT EXISTS, HAS OCCURRED AND IS CONTINUING OR WOULD RESULT BY THE
EXECUTION, DELIVERY OR PERFORMANCE OF THIS AMENDMENT; AND (VII) EXCEPT AS
UPDATED PURSUANT TO THE AMENDED AND RESTATED DISCLOSURE SCHEDULES, WHICH SHALL
BE IN FORM AND SUBSTANCE SATISFACTORY TO AGENT IN ITS SOLE AND ABSOLUTE
DISCRETION IN ACCORDANCE WITH SECTION 4 ABOVE, THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN THE LOAN DOCUMENTS ARE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF THE DATE HEREOF AS IF MADE ON THE DATE HEREOF, EXCEPT FOR SUCH
REPRESENTATIONS AND WARRANTIES LIMITED BY THEIR TERMS TO A SPECIFIC DATE.
SECTION 10.
MISCELLANEOUS.
(A)
THIS AMENDMENT MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS (INCLUDING BY FACSIMILE), AND BY THE DIFFERENT PARTIES
HERETO ON THE SAME OR SEPARATE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE
AN ORIGINAL INSTRUMENT BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE
SAME AGREEMENT.
EACH PARTY AGREES THAT IT WILL BE BOUND BY ITS OWN FACSIMILE
SIGNATURE AND THAT IT ACCEPTS THE FACSIMILE SIGNATURE OF EACH OTHER PARTY.
THE
DESCRIPTIVE HEADINGS OF THE VARIOUS SECTIONS OF THIS AMENDMENT ARE INSERTED FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL NOT BE DEEMED TO AFFECT THE MEANING OR
CONSTRUCTION OF ANY OF THE PROVISIONS HEREOF OR THEREOF.
WHENEVER THE CONTEXT
AND CONSTRUCTION SO REQUIRE, ALL WORDS HEREIN
10
IN THE SINGULAR NUMBER HEREIN SHALL BE DEEMED TO HAVE BEEN USED