(f)
Section 12.21 is hereby amended and restated in its entirety as
follows:
"THE AGENT AND EACH OF THE LENDERS AND BORROWERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS THAT THEY MAY NOW OR
HEREAFTER HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, ANY OF THE OTHER LOAN
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT
LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS
RELATING TO THE ADMINISTRATION OF THE CREDIT FACILITY UNDER THIS AGREEMENT OR
ENFORCEMENT OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, AND (ii) AGREE THAT
NONE OF THE BORROWERS, ANY LENDER OR THE AGENT WILL SEEK TO CONSOLIDATE ANY SUCH
ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. EXCEPT AS PROHIBITED BY APPLICABLE LAW, EACH BORROWER HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. EACH BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF THE AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE AGENT OR THE LENDERS WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVERS. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR
THE AGENT AND THE LENDERS TO ENTER INTO THIS AGREEMENT AND FOR THE LENDERS TO
MAKE LOANS AND OTHER CREDIT AVAILABLE TO THE BORROWERS. IT IS INTENDED THAT SAID
WAIVERS SHALL APPLY TO ANY AND ALL DEFENSES, RIGHTS, AND/OR COUNTERCLAIMS IN ANY
ACTION OR PROCEEDING
(g)
Section 12.25 is hereby amended and restated in its entirety as
follows:
30
"12.25. OPINION OF LOCAL COUNSEL WITH RESPECT TO GUARANTOR SUBSIDIARIES. No
later than May 15, 2003, Parent Borrower shall deliver opinions of local counsel
in the jurisdictions of the states of incorporation or organization of the
Guarantor Subsidiaries with respect to which an opinion of counsel was not
delivered on or about March 28, 2003 with respect to the first amendment to the
Credit Agreement. Each such opinion shall be reasonably satisfactory to the
Agent in all respects, and shall be substantially in the form of the opinions
regarding the Credit Parties delivered in connection with such first amendment
to the Credit Agreement."
2.12.
Amendment of Exhibit E.
Exhibit E to the Credit Agreement, Form of Compliance Certificate, is hereby
amended and restated to read in its entirety the same as Exhibit E annexed
hereto.
2.13.
Schedule 4.21.
Schedule 4.21 to the Credit Agreement is hereby deleted.
3.
REAFFIRMATION OF GUARANTY.
Each of the Guarantors hereby reaffirms each of its continuing obligations
to the Agent and the Lenders under the Guaranty and agrees that neither this
Amendment, the transactions contemplated by this Amendment nor any further