AND BY GENERAL EQUITABLE PRINCIPLES (WHETHER
ENFORCEMENT IS SOUGHT BY PROCEEDINGS IN EQUITY OR AT LAW) AND THE IMPLIED
COVENANTS OF GOOD FAITH AND FAIR DEALING; AND (II) AFTER GIVING EFFECT TO THIS
AGREEMENT, THE REPRESENTATIONS AND WARRANTIES OF EACH SUCH PARTY, RESPECTIVELY,
SET FORTH IN ARTICLE V OF THE RECEIVABLES PURCHASE AGREEMENT ARE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS WITH THE SAME EFFECT AS IF MADE ON THE DATE
HEREOF, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES EXPRESSLY
RELATE TO AN EARLIER DATE. THE SELLER FURTHER REPRESENTS AND WARRANTS THAT AFTER
GIVING EFFECT TO THIS AGREEMENT, NO EVENT HAS OCCURRED AND IS CONTINUING THAT
CONSTITUTES AN AMORTIZATION EVENT OR A POTENTIAL AMORTIZATION EVENT.
ARTICLE V REFERENCE TO AND EFFECT ON THE RECEIVABLES PURCHASE AGREEMENT.
Upon the effectiveness of this Agreement, (i) each reference in the Receivables
Purchase Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import shall mean and be a reference to the Receivables Purchase
Agreement, as amended hereby, and (ii) each reference to the Receivables
Purchase Agreement in any other Transaction Document or any other document,
instrument or agreement executed and/or delivered in connection therewith, shall
mean and be a reference to the Receivables Purchase Agreement as amended hereby.
3
Except as specifically amended hereby, the terms and conditions of the
Receivables Purchase Agreement, of all other Transaction Documents and any other
documents, instruments and agreements executed and/or delivered in connection
therewith, shall remain in full force and effect and are hereby ratified and
confirmed.
The execution, delivery and effectiveness of this Agreement shall not operate as
a waiver of any right, power or remedy of the Agent, any Purchaser or any
Managing Agent under the Receivables Purchase Agreement or any other Transaction
Document or any other document, instrument or agreement executed in connection
therewith, nor constitute a waiver of any provision contained therein, in each
case except as specifically set forth herein.
ARTICLE VI COSTS AND EXPENSES. THE SELLER AGREES TO PAY ON DEMAND ALL REASONABLE
COSTS AND EXPENSES OF THE AGENT, JS TRUST, THE FINANCIAL INSTITUTIONS AND THE
NEW PURCHASER GROUP IN CONNECTION WITH THE PREPARATION, EXECUTION AND DELIVERY
OF THIS AGREEMENT AND THE OTHER INSTRUMENTS AND DOCUMENTS TO BE DELIVERED IN
CONNECTION HEREWITH, INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND
OUT-OF-POCKET EXPENSES OF COUNSEL FOR THE AGENT, JS TRUST, THE FINANCIAL
INSTITUTIONS AND THE NEW PURCHASER GROUP WITH RESPECT THERETO AND WITH RESPECT
TO ADVISING THE AGENT, JS TRUST, THE FINANCIAL INSTITUTIONS AND THE NEW
PURCHASER GROUP AS TO THEIR RESPECTIVE RIGHTS AND RESPONSIBILITIES HEREUNDER AND
THEREUNDER.
ARTICLE VII EXECUTION IN COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS AND BY DIFFERENT PARTIES HERETO IN SEPARATE COUNTERPARTS,
EACH OF WHICH WHEN SO EXECUTED AND DELIVERED SHALL BE DEEMED TO BE AN ORIGINAL
AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE BUT ONE AND THE SAME
INSTRUMENT.
ARTICLE VIII GOVERNING LAW. THIS Agreement SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING,