shareholder or similar agreement,
except to the extent that such Requirement of Law or the applicable terms in
such contract, license, agreement, instrument or other document or shareholder
or similar agreement
10
providing for such prohibition, breach, default or termination or requiring such
consent is ineffective under applicable law or (z) such property constitutes
"Collateral" under and as defined in the Fox River Security Agreement.
3.2
Exception to Last Day. The
security interest granted hereby shall not extend or apply to, and Collateral
shall not include, the last day of the term of any lease or agreement therefor,
but upon enforcement of the security interest, each Grantor shall stand
possessed of such last day in trust or assign the same to any person acquiring
such term.
3.3
Attachment. Each Grantor
acknowledges that (i) value has been given, (ii) it has rights in the
Collateral, (iii) it has not agreed to postpone the time for attachment of the
Lien granted hereunder, and (iv) it has received a copy of this Agreement.
3.4
NOTWITHSTANDING ANYTHING
HEREIN TO THE CONTRARY, ALL TERMS OF THIS AGREEMENT (INCLUDING, WITHOUT
LIMITATION, THE REPRESENTATIONS AND WARRANTIES MADE HEREIN, THE LIENS AND
SECURITY INTERESTS GRANTED TO THE ADMINISTRATIVE AGENT PURSUANT TO THIS
AGREEMENT, THE EXERCISE OF ANY RIGHT OR REMEDY BY THE ADMINISTRATIVE AGENT AND
LENDERS HEREUNDER, ALL OTHER RIGHTS AND BENEFITS AFFORDED HEREUNDER TO THE
ADMINISTRATIVE AGENT AND THE LENDERS AND ALL OBLIGATIONS OF THE GRANTORS
HEREUNDER) ARE SUBJECT IN ALL RESPECTS TO THE TERMS, CONDITIONS AND PROVISIONS
OF THAT CERTAIN INTERCREDITOR AGREEMENT, DATED AS OF FEBRUARY
, 2010
(AS AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME IN
ACCORDANCE WITH THE TERMS THEREOF, THE "INTERCREDITOR AGREEMENT") BY AND AMONG
FIFTH THIRD BANK, AS RCF REPRESENTATIVE FOR THE BENEFIT OF THE RCF SECURED
PARTIES (AS DEFINED THEREIN), AND U.S. BANK NATIONAL ASSOCIATION, AS NOTE
REPRESENTATIVE FOR THE NOTE SECURED PARTIES (AS DEFINED THEREIN), FIFTH THIRD
BANK, IN ITS CAPACITY AS FIRST LIEN REPRESENTATIVE (AS DEFINED THEREIN), AND
CERTAIN OTHER PERSONS PARTY OR THAT MAY BECOME PARTY THERETO FROM TIME TO TIME.
IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT
AND THE TERMS OF THIS AGREEMENT, THE TERMS OF THE INTERCREDITOR AGREEMENT SHALL
GOVERN AND CONTROL.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, each Grantor hereby represents and warrants
to Agent and each Lender that:
4.1
Representations in Credit
Agreement. In the case of each Guarantor, the representations and warranties set
forth in Article V of the Credit Agreement as they relate to such Guarantor or
to the Loan Documents to which such Guarantor is a party, each of which is
hereby incorporated herein by reference, are true and correct, and each Agent
and each Lender shall be entitled to rely on each of them as if they were fully
set forth