of any rule, regulation, pronouncement or opinion by the
Financial Accounting Standards Board of the American Institute of Certified
Public Accountants or, if applicable, the SEC.
95
11.21 WAIVER OF JURY TRIAL, PUNITIVE DAMAGES, ETC. THE COMPANY, THE GUARANTORS,
THE LENDERS AND THE ADMINISTRATIVE AGENT EACH HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY (A) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED
BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED THEREBY OR
ASSOCIATED THEREWITH, BEFORE OR AFTER MATURITY; (B) WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
SUCH LITIGATION ANY "SPECIAL DAMAGES", AS DEFINED BELOW, (C) CERTIFIES THAT NO
PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (D)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION
11.21. AS USED IN THIS SECTION, "SPECIAL DAMAGES" INCLUDES ALL SPECIAL,
CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (REGARDLESS OF HOW NAMED), BUT
DOES NOT INCLUDE ANY PAYMENTS OR FUNDS WHICH ANY PARTY HERETO HAS EXPRESSLY
PROMISED TO PAY OR DELIVER TO ANY OTHER PARTY HERETO.
11.22 Intercreditor Agreement. Each Lender (a) hereby agrees that it will be
bound by and take no actions contrary to the Intercreditor Agreement and (b)
hereby irrevocably authorizes and instructs the Administrative Agent to enter
into the Intercreditor Agreement on its behalf.
11.23 Amendment and Restatement.
(a) From and after the Effective Time, this Agreement amends and restates in its
entirety the Existing Company Credit Agreement; the Notes issued under this
Agreement, if any, amend and restate the "Note" (as defined in the Existing
Company Credit Agreement) issued under the Existing Company Credit Agreement;
and the Existing Company Credit Agreement shall thereafter be of no further
force and effect except to evidence the incurrence by the Company of the
"Obligations" under and as defined therein (whether or not such "Obligations"
are contingent as of the Effective Time. This Agreement and the Notes, if any,
issued pursuant hereto do not constitute and shall not be construed to evidence
a novation of or a payment and readvance of any of the "Obligations" (as defined
in the Existing Company Credit Agreement) heretofore outstanding under the
Existing Company Credit Agreement; it being the intention of the parties hereto
that this Agreement amend and restate the terms and conditions of, and the
Notes, if any, issued pursuant hereto evidence, the "Obligations" as are
outstanding under the Existing Company Credit Agreement immediately prior to the
Effective Time.
(b) The terms and conditions of this Agreement and