ACCORDINGLY, THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST AGENT OR ANY LENDER
MERELY BECAUSE OF THEIR INVOLVEMENT IN THE PREPARATION HEREOF.
SECTION 26.
COUNTERPARTS; TELEFACSIMILE EXECUTION.
THIS AGREEMENT MAY
BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY DIFFERENT PARTIES HERETO IN
SEPARATE COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN
ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE BUT ONE AND THE SAME
AGREEMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF THIS AGREEMENT BY
TELEFACSIMILE SHALL BE EQUALLY EFFECTIVE AS DELIVERY OF AN ORIGINAL EXECUTED
COUNTERPART OF THIS AGREEMENT.
ANY PARTY DELIVERING AN EXECUTED COUNTERPART OF
THIS AGREEMENT BY TELEFACSIMILE ALSO SHALL DELIVER AN ORIGINAL EXECUTED
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COUNTERPART OF THIS AGREEMENT BUT THE FAILURE TO DELIVER AN ORIGINAL EXECUTED
COUNTERPART SHALL NOT AFFECT THE VALIDITY, ENFORCEABILITY, AND BIND EFFECT OF
THIS AGREEMENT.
SECTION 27.
TERMINATION OF AGREEMENT.
UPON PAYMENT AND PERFORMANCE IN
FULL IN CASH OF THE SENIOR DEBT, THIS AGREEMENT SHALL TERMINATE AND AGENT SHALL
PROMPTLY EXECUTE AND DELIVER TO EACH OBLIGOR SUCH DOCUMENTS AND INSTRUMENTS AS
SHALL BE REASONABLY NECESSARY TO EVIDENCE SUCH TERMINATION; PROVIDED, HOWEVER,
THAT THE OBLIGATIONS OF EACH OBLIGOR UNDER SECTION 16 SHALL SURVIVE SUCH
TERMINATION.
SECTION 28.
ACKNOWLEDGMENT AND RESTATEMENT.
(A)
EACH OBLIGOR HEREBY ACKNOWLEDGES, CONFIRMS AND AGREES THAT: (I)
THE EXISTING INTERCOMPANY AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY
OBLIGORS AND IS IN FULL FORCE AND EFFECT AS OF THE DATE HEREOF; (II) THE
AGREEMENTS AND OBLIGATIONS OF OBLIGORS CONTAINED IN THE EXISTING INTERCOMPANY
AGREEMENT CONSTITUTE LEGAL, VALID AND BINDING OBLIGATIONS OF OBLIGORS
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH THE TERMS THEREOF, AND OBLIGORS HAVE
NO VALID DEFENSE, OFFSET OR COUNTERCLAIM TO THE ENFORCEMENT OF SUCH OBLIGATIONS;
AND (III) AGENT, LENDERS AND BANK PRODUCT PROVIDER ARE ENTITLED TO ALL OF THE
RIGHTS, REMEDIES AND BENEFITS PROVIDED FOR IN THE EXISTING INTERCOMPANY
AGREEMENT.
(B)
AS OF THE DATE HEREOF, THE TERMS, CONDITIONS, AGREEMENTS,
COVENANTS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THE EXISTING INTERCOMPANY
AGREEMENT ARE HEREBY AMENDED AND RESTATED IN THEIR ENTIRETY, AND AS SO AMENDED
AND RESTATED, ARE REPLACED AND SUPERSEDED BY THE TERMS, CONDITIONS AGREEMENTS,
COVENANTS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, EXCEPT
THAT NOTHING HEREIN SHALL IMPAIR OR ADVERSELY AFFECT THE CONTINUATION OF THE
LIABILITY OF OBLIGORS FOR THE OBLIGATIONS OR THE SECURITY INTERESTS AND LIENS
HERETOFORE GRANTED, PLEDGED OR ASSIGNED TO AGENT FOR ITSELF AND THE BENEFIT OF
LENDERS AND BANK PRODUCT PROVIDER.
THE AMENDMENT AND RESTATEMENT CONTAINED
HEREIN SHALL NOT, IN ANY MANNER, BE CONSTRUED TO CONSTITUTE PAYMENT OF, OR
IMPAIR, LIMIT, CANCEL OR EXTINGUISH, OR CONSTITUTE A NOVATION IN RESPECT OF, THE
INDEBTEDNESS AND OTHER OBLIGATIONS AND LIABILITIES OF OBLIGORS EVIDENCED BY OR
ARISING UNDER THE EXISTING INTERCOMPANY AGREEMENT AND ANY OF THE OTHER EXISTING
FINANCING AGREEMENTS TO WHICH OBLIGORS ARE A PARTY, AND THE LIENS AND SECURITY
INTERESTS SECURING SUCH INDEBTEDNESS AND OTHER OBLIGATIONS AND LIABILITIES SHALL
NOT IN ANY MANNER BE IMPAIRED, LIMITED, TERMINATED, WAIVED OR RELEASED.
[Signatures follow on next page]
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IN WITNESS