promulgation of
any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.
78
11.21
WAIVER OF JURY TRIAL, PUNITIVE DAMAGES, ETC.
THE COMPANY AND
EACH LENDER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY
(A) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR DIRECTLY OR
INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN
DOCUMENTS OR ANY TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED THEREWITH,
BEFORE OR AFTER MATURITY; (B) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY
LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY
"SPECIAL DAMAGES", AS DEFINED BELOW, (C) CERTIFIES THAT NO PARTY HERETO NOR ANY
REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (D) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 11.20. AS USED IN THIS
SECTION, "SPECIAL DAMAGES" INCLUDES ALL SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR
PUNITIVE DAMAGES (REGARDLESS OF HOW NAMED), BUT DOES NOT INCLUDE ANY PAYMENTS OR
FUNDS WHICH ANY PARTY HERETO HAS EXPRESSLY PROMISED TO PAY OR DELIVER TO ANY
OTHER PARTY HERETO.
11.22
Intercreditor Agreement.
Each Lender (a) hereby agrees that
it will be bound by and take no actions contrary to the Intercreditor Agreement
and (b) hereby irrevocably authorizes and instructs the Administrative Agent to
enter into the Intercreditor Agreement on its behalf.
11.23
Amendment and Restatement.
(a)
From and after the Effective Time, this Agreement amends and
restates in its entirety the Existing Credit Agreement; the Notes issued under
this Agreement, if any, amend and restate the "Notes" (as defined in the
Existing Credit Agreement) issued under the Existing Credit Agreement; and the
Existing Credit Agreement shall thereafter be of no further force and effect
except to evidence (i) the incurrence by any Company of the "Obligations" under
and as defined therein (whether or not such "Obligations" are contingent as of
the Effective Time), (ii) the representations and warranties made by any Loan
Party prior to the Effective Time and (iii) any action or omission performed or
required to be performed pursuant to the Existing Credit Agreement prior to the
Effective Time (including any failure, prior to the Effective Time, to comply
with the covenants contained in such Existing Credit Agreement). The amendments
and restatements set forth herein shall not cure any breach thereof or any
"Default" or "Event of Default" under and as defined in the Existing Credit
Agreement existing prior to the Effective Time. This Agreement and the Notes, if
any, issued do not constitute and shall not be construed to evidence a