PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS
OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDED AND RESTATED FIRST LIEN
LOAN GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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 AMENDED AND RESTATED FIRST LIEN LOAN GUARANTY BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 3.10
Indemnity.
Each Loan Guarantor hereby agrees to indemnify
the Administrative Agent and the other Indemnitees, as set forth in Section 9.03
of the Amended and Restated First Lien Credit Agreement.
Section 3.11
Counterparts.
This Amended and Restated First Lien Loan
Guaranty may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract.
Delivery of an
executed counterpart of a signature page of this Amended and Restated First Lien
Loan Guaranty by facsimile or by email as a ".pdf" or ".tif" attachment shall be
effective as delivery of a manually executed counterpart of this Amended and
Restated First Lien Loan Guaranty.
Section 3.12
EFFECT OF INTERCREDITOR AGREEMENT.
NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, THE GUARANTEE OF THE GUARANTEED OBLIGATIONS
GRANTED TO THE ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE SECURED PARTIES,
PURSUANT TO THIS AMENDED AND RESTATED FIRST LIEN LOAN GUARANTY AND THE EXERCISE
OF ANY RIGHT OR REMEDY BY THE ADMINISTRATIVE AGENT ARE SUBJECT TO THE PROVISIONS
OF ANY APPLICABLE INTERCREDITOR AGREEMENT.
IN THE EVENT OF ANY CONFLICT BETWEEN
THE PROVISIONS OF ANY APPLICABLE INTERCREDITOR AGREEMENT AND THIS AMENDED AND
RESTATED FIRST LIEN LOAN GUARANTY, THE PROVISIONS OF SUCH INTERCREDITOR
AGREEMENT SHALL GOVERN AND CONTROL.
Section 3.13
Successors and Assigns.
Whenever in this Amended and
Restated First Lien Loan Guaranty any party hereto is referred to, such
reference shall be deemed to include the successors and permitted assigns of
such party; and all covenants, promises and agreements by or on behalf of any
Loan Guarantor or the Administrative Agent that are contained in this Amended
and Restated First Lien Loan Guaranty shall bind and inure to the benefit of
their respective successors and permitted assigns.
Except in a transaction
permitted (or not restricted) under the Amended and Restated First Lien Credit
Agreement, no Loan Guarantor may assign any of its rights or obligations
hereunder without the written consent of the Administrative Agent.
10
Section 3.14
Survival of Agreement.
Without limitation of any
provision of the Amended and Restated First Lien Credit Agreement or
Section 3.10 hereof, all covenants,