OR COURT ORDER
BINDING ON AGENT AND SUCH LENDER, THAT THE LOSSES WERE THE RESULT OF ACTS OR
OMISSIONS CONSTITUTING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AGENT AND/OR
SUCH LENDERS. IN ANY SUCH LITIGATION, AGENT AND LENDERS SHALL BE ENTITLED TO THE
BENEFIT OF THE REBUTTABLE PRESUMPTION THAT IT ACTED IN GOOD FAITH AND WITH THE
EXERCISE OF ORDINARY CARE IN THE PERFORMANCE BY IT OF THE TERMS OF THIS
AGREEMENT. EACH BORROWER AND GUARANTOR: (I) CERTIFIES THAT NEITHER AGENT, ANY
LENDER NOR ANY REPRESENTATIVE, AGENT OR ATTORNEY ACTING FOR OR ON BEHALF OF
AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT AND
LENDERS WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE ANY OF THE
WAIVERS PROVIDED FOR IN THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS
AND (II) ACKNOWLEDGES THAT IN ENTERING INTO THIS AGREEMENT AND THE OTHER
FINANCING AGREEMENTS, AGENT AND LENDERS ARE RELYING UPON, AMONG OTHER THINGS,
THE
113
waivers and certifications set forth in this Section 11.1 and elsewhere herein
and therein.
11.2
WAIVER OF NOTICES.
EACH BORROWER AND GUARANTOR HEREBY EXPRESSLY
WAIVES DEMAND, PRESENTMENT, PROTEST AND NOTICE OF PROTEST AND NOTICE OF DISHONOR
WITH RESPECT TO ANY AND ALL INSTRUMENTS AND CHATTEL PAPER, INCLUDED IN OR
EVIDENCING ANY OF THE OBLIGATIONS OR THE COLLATERAL, AND ANY AND ALL OTHER
DEMANDS AND NOTICES OF ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO THE
OBLIGATIONS, THE COLLATERAL AND THIS AGREEMENT, EXCEPT SUCH AS ARE EXPRESSLY
PROVIDED FOR HEREIN. NO NOTICE TO OR DEMAND ON ANY BORROWER OR GUARANTOR WHICH
AGENT OR ANY LENDER MAY ELECT TO GIVE SHALL ENTITLE ANY BORROWER OR GUARANTOR TO
ANY OTHER OR FURTHER NOTICE OR DEMAND IN THE SAME, SIMILAR OR OTHER
CIRCUMSTANCES.
11.3
AMENDMENTS AND WAIVERS.
(A)
NEITHER THIS AGREEMENT NOR ANY OTHER FINANCING AGREEMENT NOR ANY
TERMS HEREOF OR THEREOF MAY BE AMENDED, WAIVED, DISCHARGED OR TERMINATED UNLESS
SUCH AMENDMENT, WAIVER, DISCHARGE OR TERMINATION IS IN WRITING SIGNED BY AGENT
AND THE REQUIRED LENDERS OR AT AGENT'S OPTION, BY AGENT WITH THE AUTHORIZATION
OF THE REQUIRED LENDERS, AND AS TO AMENDMENTS TO ANY OF THE FINANCING AGREEMENTS
(OTHER THAN WITH RESPECT TO ANY PROVISION OF SECTION 12 HEREOF), BY BORROWERS;
EXCEPT, THAT:
(I)
WITHOUT THE PRIOR WRITTEN CONSENT OF AGENT AND EACH LENDER, NO
SUCH AMENDMENT, WAIVER, DISCHARGE OR TERMINATION SHALL:
(A)
AMEND, MODIFY OR WAIVE ANY OF THE PROVISIONS OF THE INTRODUCTORY
PARAGRAPH OF THIS SECTION 11.3(A) OR ANY OF THE PROVISIONS OF THIS SECTION
11.3(A)(I);
(B)
REDUCE ANY PERCENTAGE SPECIFIED IN THE DEFINITION OF REQUIRED
LENDERS OR AMEND, MODIFY OR WAIVE ANY PROVISION OF THE DEFINITION OF PRO RATA
SHARE;
(C)
RELEASE ANY COLLATERAL (EXCEPT AS EXPRESSLY REQUIRED HEREUNDER OR
UNDER ANY OF THE OTHER FINANCING AGREEMENTS OR APPLICABLE LAW AND EXCEPT AS
PERMITTED UNDER SECTION 12.11(B) HEREOF);
(D)
CONSENT TO THE ASSIGNMENT OR TRANSFER BY ANY BORROWER OR ANY
GUARANTOR OF ANY OF THEIR RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT;
(E)
INCREASE (1) THE ADVANCE RATES SET FORTH IN THE