OTHER DOCUMENT EVIDENCING OR GIVING RISE TO
SUCH PROPERTY OR, IN THE CASE OF ANY INVESTMENT PROPERTY, ANY APPLICABLE
SHAREHOLDER OR SIMILAR AGREEMENT, EXCEPT TO THE EXTENT THAT SUCH APPLICABLE LAW
OR THE TERM IN SUCH CONTRACT, LICENSE, AGREEMENT, INSTRUMENT OR OTHER DOCUMENT
OR SHAREHOLDER OR SIMILAR AGREEMENT PROVIDING FOR SUCH PROHIBITION, BREACH,
DEFAULT OR TERMINATION OR REQUIRING SUCH CONSENT IS INEFFECTIVE UNDER APPLICABLE
LAW, (III) WITH RESPECT TO ANY SHARES OF STOCK OR OTHER OWNERSHIP INTERESTS IN
ANY FIRST-TIER FOREIGN SUBSIDIARY, THE EXCESS OVER 65% OF ALL OF THE VOTING
SHARES OF STOCK OR EQUITY INTERESTS IN SUCH FOREIGN SUBSIDIARY, (IV) ANY STOCK
OR OTHER OWNERSHIP INTERESTS OF ANY SUBSIDIARY OF ANY FIRST-TIER FOREIGN
SUBSIDIARY AND (V) ANY SHARES OF THE PARENT'S CAPITAL STOCK THAT HAVE BEEN
REPURCHASED BY THE PARENT AND HELD IN TREASURY.
THE AGENT'S SECURITY INTEREST
IN ANY ITEM CONSTITUTING SECURITIZATION COLLATERAL SHALL BE RELEASED UPON THE
SALE, CONTRIBUTION OR TRANSFER THEREOF UNDER THE TERMS OF THE APPLICABLE
RECEIVABLES PURCHASE FACILITY.
2.
CONDITIONS OF EFFECTIVENESS.
THE
EFFECTIVENESS OF THIS AMENDMENT IS SUBJECT TO THE CONDITIONS PRECEDENT THAT:
(A)
THE AGENT SHALL HAVE RECEIVED DULY EXECUTED
ORIGINALS OF THIS AMENDMENT FROM EACH OF THE BORROWER, THE PARENT AND EACH OTHER
GRANTOR;
(B)
THE AGENT SHALL HAVE RECEIVED SUCH OTHER
DOCUMENTS, INSTRUMENTS AND AGREEMENTS AS THE AGENT SHALL REASONABLY REQUEST.
3.
REPRESENTATIONS AND WARRANTIES AND
REAFFIRMATIONS OF THE PARENT AND THE BORROWER.
3.1.
EACH OF THE PARENT AND THE BORROWER HEREBY
REPRESENTS AND WARRANTS THAT (I) THIS AMENDMENT AND THE SECURITY AGREEMENT AS
PREVIOUSLY EXECUTED AND AS MODIFIED HEREBY CONSTITUTE LEGAL, VALID AND BINDING
OBLIGATIONS OF EACH CREDIT PARTY PARTY THERETO AND ARE ENFORCEABLE AGAINST EACH
SUCH CREDIT PARTY IN ACCORDANCE WITH THEIR TERMS (EXCEPT AS ENFORCEABILITY MAY
BE LIMITED BY BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCES, REORGANIZATION OR
SIMILAR LAWS RELATING TO OR AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS
GENERALLY, GENERAL EQUITABLE PRINCIPLES (WHETHER CONSIDERED IN A PROCEEDING IN
EQUITY OR AT LAW) AND REQUIREMENTS OF REASONABLENESS, GOOD FAITH AND FAIR
DEALING), AND (II) NO DEFAULT OR UNMATURED DEFAULT HAS OCCURRED AND IS
CONTINUING.
3.2.
UPON THE EFFECTIVENESS OF THIS AMENDMENT AND
AFTER GIVING EFFECT HERETO, EACH OF THE PARENT, THE BORROWER AND EACH OTHER
GRANTOR HEREBY REAFFIRMS ALL COVENANTS, REPRESENTATIONS
2
AND WARRANTIES, IN ALL MATERIAL RESPECTS, MADE IN THE SECURITY AGREEMENT AS
MODIFIED HEREBY, AND AGREES THAT ALL SUCH COVENANTS, REPRESENTATIONS AND
WARRANTIES SHALL BE DEEMED TO HAVE BEEN REMADE AS OF THE EFFECTIVE DATE, EXCEPT
THAT ANY SUCH COVENANT, REPRESENTATION, OR WARRANTY THAT WAS MADE AS OF A
SPECIFIC DATE SHALL BE CONSIDERED REAFFIRMED ONLY AS OF SUCH DATE.
4.
REFERENCE TO AND EFFECT ON THE SECURITY
AGREEMENT.
4.1.
UPON THE EFFECTIVENESS OF SECTION 1 HEREOF, ON
AND AFTER THE DATE HEREOF, EACH REFERENCE IN THE SECURITY AGREEMENT (INCLUDING
ANY REFERENCE THEREIN TO "THIS SECURITY AGREEMENT," "HEREUNDER," "HEREOF,"
"HEREIN" OR WORDS OF LIKE IMPORT REFERRING THERETO) OR IN ANY OTHER LOAN
DOCUMENT SHALL MEAN AND BE A REFERENCE TO THE SECURITY AGREEMENT AS MODIFIED
HEREBY.