OF SUCH DATE, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND
WARRANTIES EXPRESSLY RELATE TO AN EARLIER DATE (IN WHICH CASE SUCH
REPRESENTATIONS AND WARRANTIES SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF SUCH EARLIER DATE.
(B)
EACH LOAN PARTY REPRESENTS AND WARRANTS, ON AND AS OF THE DATE
HEREOF, THAT (I) THE EXECUTION, DELIVERY AND PERFORMANCE BY HOLDINGS, EACH
BORROWER AND EACH OF THE SUBSIDIARY LOAN PARTIES OF THIS AMENDMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY AUTHORIZED BY ALL CORPORATE,
STOCKHOLDER, PARTNERSHIP OR LIMITED LIABILITY COMPANY ACTION REQUIRED TO BE
OBTAINED BY HOLDINGS, SUCH BORROWER AND SUCH SUBSIDIARY LOAN PARTIES, AND (II)
THIS AMENDMENT HAS BEEN DULY EXECUTED AND DELIVERED BY HOLDINGS, EACH BORROWER
AND EACH OF THE SUBSIDIARY LOAN PARTIES AND CONSTITUTES A LEGAL, VALID AND
BINDING OBLIGATION OF SUCH LOAN PARTY ENFORCEABLE AGAINST EACH SUCH LOAN PARTY
IN ACCORDANCE WITH ITS TERMS, SUBJECT TO (1) THE EFFECTS OF BANKRUPTCY,
INSOLVENCY, MORATORIUM, REORGANIZATION, FRAUDULENT CONVEYANCE OR OTHER SIMILAR
LAWS AFFECTING CREDITORS' RIGHTS GENERALLY, (2) GENERAL PRINCIPLES OF EQUITY
(REGARDLESS OF WHETHER SUCH ENFORCEABILITY IS CONSIDERED IN A PROCEEDING IN
EQUITY OR AT LAW) AND (3) IMPLIED COVENANTS OF GOOD FAITH AND FAIR DEALING.
(C)
EACH LOAN PARTY HEREBY REPRESENTS AND WARRANTS THAT, BOTH ON
AND AS OF THE DATE HEREOF AND ON AND AS OF THE AMENDMENT EFFECTIVE DATE, BOTH
BEFORE AND AFTER GIVING EFFECT TO THIS AMENDMENT, NO EVENT HAS OCCURRED AND IS
CONTINUING THAT CONSTITUTES A DEFAULT OR AN EVENT OF DEFAULT UNDER THE UNAMENDED
CREDIT AGREEMENT, THE AMENDED CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.
EXECUTION IN COUNTERPARTS.
This Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
Delivery of an executed counterpart of a signature
page to this Amendment by telecopier or other electronic means shall be
effective as delivery of a manually executed counterpart of this Amendment.
SECTION 11.
GOVERNING LAW.
This Amendment shall be governed by, and construed in accordance with, the
laws of the state of New York.
SECTION 12.
WAIVER OF JURY TRIAL
.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.
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