and (g) the Scheduled Termination Date.
SECTION 2.
CONDITIONS PRECEDENT.
THIS AMENDMENT SHALL BECOME
EFFECTIVE, AS OF THE DATE HEREOF, ON THE DATE ON WHICH THE FOLLOWING CONDITIONS
PRECEDENT SHALL HAVE BEEN FULFILLED:
(A)
THIS AMENDMENT SHALL HAVE BEEN EXECUTED AND DELIVERED BY A DULY
AUTHORIZED OFFICER OF EACH PARTY THERETO.
(B)
THE BORROWER SHALL BE IN COMPLIANCE WITH EACH OF ITS COVENANTS SET
FORTH HEREIN AND EACH OF THE OPERATIVE DOCUMENTS TO WHICH IT IS A PARTY.
(C)
NO EVENT HAS OCCURRED WHICH CONSTITUTES A FACILITY TERMINATION
EVENT OR A POTENTIAL FACILITY TERMINATION EVENT AND THE FACILITY TERMINATION
DATE SHALL NOT HAVE OCCURRED.
SECTION 3.
REFERENCE TO AND EFFECT ON THE AGREEMENT AND THE RELATED
DOCUMENTS. UPON THE EFFECTIVENESS OF THIS AMENDMENT, (I) THE BORROWER HEREBY
REAFFIRMS ALL REPRESENTATIONS AND WARRANTIES MADE BY IT IN ARTICLE II OF THE
AGREEMENT (AS AMENDED HEREBY) AND AGREES THAT ALL SUCH REPRESENTATIONS AND
WARRANTIES SHALL BE DEEMED TO HAVE BEEN RESTATED AS OF THE EFFECTIVE DATE OF
THIS AMENDMENT, (II) THE BORROWER HEREBY REPRESENTS AND WARRANTS THAT NO
FACILITY TERMINATION EVENT OR POTENTIAL FACILITY TERMINATION EVENT SHALL HAVE
OCCURRED AND BE CONTINUING AND (II) EACH REFERENCE IN THE AGREEMENT TO "THIS
AGREEMENT", "HEREUNDER", "HEREOF", "HEREIN" OR WORDS OF LIKE IMPORT SHALL MEAN
AND BE, AND ANY REFERENCED TO THE AGREEMENT IN ANY OTHER DOCUMENT, INSTRUMENT OR
AGREEMENT EXECUTED AND/OR DELIVERED IN CONNECTION WITH THE AGREEMENT SHALL MEAN
AND BE, A REFERENCE TO THE AGREEMENT AS AMENDED HEREBY.
SECTION 4.
GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 5.
SEVERABILITY.
EACH PROVISION OF THIS AMENDMENT SHALL BE
SEVERABLE FROM EVERY OTHER PROVISION OF THIS AMENDMENT FOR THE PURPOSE OF
DETERMINING THE LEGAL ENFORCEABILITY OF ANY PROVISION HEREOF, AND THE
UNENFORCEABILITY OF ONE OR MORE PROVISIONS OF THIS AMENDMENT IN ONE JURISDICTION
SHALL NOT HAVE THE EFFECT OF RENDERING SUCH PROVISION OR PROVISIONS
UNENFORCEABLE IN ANY OTHER JURISDICTION.
SECTION 6.
COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED IN ONE OR
MORE COUNTERPARTS EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL BUT ALL OF
WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SALE INSTRUMENT.
DELIVERY OF AN
EXECUTED COUNTERPART OF A SIGNATURE PAGE BY FACSIMILE SHALL BE EFFECTIVE AS
DELIVERY OF A MANUALLY EXECUTED COUNTERPART OF THIS AMENDMENT.
SECTION 7.
LIMITATION OF LIABILITY.
IT IS EXPRESSLY UNDERSTOOD AND
AGREED BY THE PARTIES HERETO THAT (A) THIS AMENDMENT IS EXECUTED AND DELIVERED
BY WILMINGTON TRUST COMPANY, NOT INDIVIDUALLY OR PERSONALLY BUT SOLELY AS
TRUSTEE OF THE TRUST, IN THE EXERCISE OF THE POWERS AND AUTHORITY CONFERRED AND
VESTED IN IT UNDER THE TRUST AGREEMENT, (B) EACH OF THE REPRESENTATIONS,
2
UNDERTAKINGS AND AGREEMENTS HEREIN OR THEREIN MADE ON THE PART OF THE TRUST IS
MADE AND INTENDED NOT AS PERSONAL REPRESENTATIONS, UNDERTAKINGS AND AGREEMENTS
BY WILMINGTON TRUST COMPANY BUT IS MADE AND INTENDED FOR THE PURPOSE OF BINDING
ONLY THE TRUST AND (C) UNDER NO CIRCUMSTANCES SHALL WILMINGTON TRUST COMPANY BE