Common use of Effect of Second Amendment and Restatement Clause in Contracts

Effect of Second Amendment and Restatement. (A) Each of the parties hereto acknowledge and agree that, upon the satisfaction of the conditions in Section 3.1, on the Second Amendment and Restatement Date, the Existing Credit Agreement shall be amended and restated in its entirety by this Agreement, and the Existing Credit Agreement shall thereafter be of no further force and effect, except to evidence (i) the incurrence by the Borrower of the Existing Obligations under the Existing Credit Agreement (whether or not such obligations are contingent as of the Second Amendment and Restatement Date), (ii) the representations and warranties made by the Borrower prior to the Second Amendment and Restatement Date and (iii) any action or omission performed or required to be performed pursuant to such Existing Credit Agreement prior to the Second Amendment and Restatement Date (including any failure, prior to the Second Amendment and Restatement Date, 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 “Potential Default” or “Event of Default” under and as defined in the Existing Credit Agreement prior to the Second Amendment and Restatement Date. It is the intention of each of the parties hereto that the Existing Credit Agreement be amended and restated hereunder so as to preserve the perfection and priority of all Liens securing the “Obligations” under the Transaction Documents and that all “Obligations” of the Borrower hereunder shall continue to be secured by Liens evidenced under the Security Agreement, and that this Agreement does not constitute a novation or termination of the Indebtedness and obligations existing under the Existing Credit Agreement. The terms and conditions of this Agreement and the Administrative Agent’s and the Lenders’ rights and remedies under this Agreement and the other Transaction Documents shall apply to all of the obligations incurred under the Existing Credit Agreement. This amendment and restatement is limited as written and is not a consent to any other amendment, restatement or waiver, whether or not similar and, unless specifically amended hereby or by any other Transaction Document, each of the Transaction Documents shall continue in full force and effect and, from and after the Second Amendment and Restatement Date, all references to the “Credit Agreement” contained therein shall be deemed to refer to this Agreement. Additionally, in connection with the foregoing, the Administrative Agent and the Lenders consent to (i) the amendment and restatement of the Parent Guaranty, the Security Agreement, the Pledge Agreement, the Subsidiary Guaranty, the Facility Administration Agreement, the Verification Agent Agreement, the Sale and Contribution Agreement, the Master SAP Contribution Agreement, the SAP Contribution Agreement and the SAP NTP Financing Documents (in each case, as defined under the Existing Credit Agreement in effect immediately prior to giving effect to this Agreement) and (ii) the amendment and restatement of the limited liability company agreement of the Borrower (as in effect on the date hereof), in form and substantivesubstance reasonably acceptable to the Administrative Agent. Notwithstanding anything contained herein to the contrary, the Parent Guaranty (as amended and restated on the Second Amendment and Restatement Date) and the obligations contained therein shall remain in full effect (as amended and restated) as of the Second Amendment and Restatement Date and shall survive the termination of the Transaction Documents in effect immediately prior to the effectiveness of this Agreement. (B) In connection with the Second Amendment and Restatement Date and the increase of commitments of the applicable Lenders on the date hereof, each Class A Lender immediately prior to the Second Amendment and Restatement Date (each, an “Second A&R Date Assignor” and, collectively, the “Second A&R Date Assignors”) hereby sells and assigns to Barclays (as Class A Lender), Salisbury Receivables Company LLC (as a Class A Lender) MUFG (as Class A Lender), Sheffield Receivables Company LLC (as a Class A Lender) and Victory Receivables Corporation (as Conduit Lender) (each a “Second A&R Date Assignee”), and such Second A&R Date Assignee hereby purchases and assumes from each such Second A&R Date Assignor its respective outstanding Advances along with its respective rights and obligations as a Non-Conduit Lender or Conduit Lender hereunder, as applicable, and other Transaction Documents related thereto in the amounts, and in exchange for payment by each Second A&R Date Assignee to each Second A&R Date Assignor on the date hereof of the amounts set out in the flow of funds agreed to by the parties hereto, plus accrued interest thereon through (and including) the date hereof which such interest will be paid by the Borrower to each Second A&R Date Assignor on the immediately following Payment Date pursuant to Section 2.7 herein.

Effect of Second Amendment and Restatement. (A) Each of the parties hereto acknowledge and agree that, upon the satisfaction of the conditions in Section 3.1, on the Second Amendment and Restatement Date, the Existing Credit Agreement shall be amended and restated in its entirety by this Agreement, and the Existing Credit Agreement shall thereafter be of no further force and effect, except to evidence (i) the incurrence by the Borrower of the Existing Obligations under the Existing Credit Agreement (whether or not such obligations are contingent as of the Second Amendment and Restatement Date), (ii) the representations and warranties made by the Borrower prior to the Second Amendment and Restatement Date and (iii) any action or omission performed or required to be performed pursuant to such Existing Credit Agreement prior to the Second Amendment and Restatement Date (including any failure, prior to the Second Amendment and Restatement Date, 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 “Potential Default” or “Event of Default” under and as defined in the Existing Credit Agreement prior to the Second Amendment and Restatement Date. It is the intention of each of the parties hereto that the Existing Credit Agreement be amended and restated hereunder so as to preserve the perfection and priority of all Liens securing the “Obligations” under the Transaction Documents and that all “Obligations” of the Borrower hereunder shall continue to be secured by Liens evidenced under the Security Agreement, and that this Agreement does not constitute a novation or termination of the Indebtedness and obligations existing under the Existing Credit Agreement. The terms and conditions of this Agreement and the Administrative Agent’s and the Lenders’ rights and remedies under this Agreement and the other Transaction Documents shall apply to all of the obligations incurred under the Existing Credit Agreement. This amendment and restatement is limited as written and is not a consent to any other amendment, restatement or waiver, whether or not similar and, unless specifically amended hereby or by any other Transaction Document, each of the Transaction Documents shall continue in full force and effect and, from and after the Second Amendment and Restatement Date, all references to the “Credit Agreement” contained therein shall be deemed to refer to this Agreement. Additionally, in connection with the foregoing, the Administrative Agent and the Lenders consent to (i) the amendment and restatement of the Parent Guaranty, the Security Agreement, the Pledge Agreement, the Subsidiary Guaranty, the Facility Administration Agreement, the Verification Agent Agreement, the Sale and Contribution Agreement, the Master SAP Contribution Agreement, the SAP Contribution Agreement and the SAP NTP Financing Documents (in each case, as defined under the Existing Credit Agreement in effect immediately prior to giving effect to this Agreement) and (ii) the amendment and restatement of the limited liability company agreement of the Borrower (as in effect on the date hereof), in form and substantivesubstance substantive reasonably acceptable to the Administrative Agent. Notwithstanding anything contained herein to the contrary, the Parent Guaranty (as amended and restated on the Second Amendment and Restatement Date) and the obligations contained therein shall remain in full effect (as amended and restated) as of the Second Amendment and Restatement Date and shall survive the termination of the Transaction Documents in effect immediately prior to the effectiveness of this Agreement. (B) In connection with the Second Amendment and Restatement Date and the increase of commitments of the applicable Lenders on the date hereof, each Class A Lender immediately prior to the Second Amendment and Restatement Date (each, an “Second A&R Date Assignor” and, collectively, the “Second A&R Date Assignors”) hereby sells and assigns to Barclays (as Class A Lender), Salisbury Receivables Company LLC (as a Class A Lender) MUFG (as Class A Lender), Sheffield Receivables Company LLC (as a Class A Lender) and Victory Receivables Corporation (as Conduit Lender) (each a “Second A&R Date Assignee”), and such Second A&R Date Assignee hereby purchases and assumes from each such Second A&R Date Assignor its respective outstanding Advances along with its respective rights and obligations as a Non-Conduit Lender or Conduit Lender hereunder, as applicable, and other Transaction Documents related thereto in the amounts, and in exchange for payment by each Second A&R Date Assignee to each Second A&R Date Assignor on the date hereof of the amounts set out in the flow of funds agreed to by the parties hereto, plus accrued interest thereon through (and including) the date hereof which such interest will be paid by the Borrower to each Second A&R Date Assignor on the immediately following Payment Date pursuant to Section 2.7 herein.

Effect of Second Amendment and Restatement. (A) Each of the parties hereto acknowledge and agree that, upon the satisfaction of the conditions in Section 3.1, on the Second Amendment and Restatement Date, the Existing Credit Agreement shall be amended and restated in its entirety by this Agreement, and the Existing Credit Agreement shall thereafter be of no further force and effect, except to evidence (i) the incurrence by the Borrower of the Existing Obligations under the Existing Credit Agreement (whether or not such obligations are contingent as of the Second Amendment and Restatement Date), (ii) the representations and warranties made by the Borrower prior to the Second Amendment and Restatement Date and (iii) any action or omission performed or required to be performed pursuant to such Existing Credit Agreement prior to the Second Amendment and Restatement Date (including any failure, prior to the Second Amendment and Restatement Date, 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 “Potential Default” or “Event of Default” under and as defined in the Existing Credit Agreement prior to the Second Amendment and Restatement Date. It is the intention of each of the parties hereto that the Existing Credit Agreement be amended and restated hereunder so as to preserve the perfection and priority of all Liens securing the “Obligations” under the Transaction Documents and that all “Obligations” of the Borrower hereunder shall continue to be secured by Liens evidenced under the Security Agreement, and that this Agreement does not constitute a novation or termination of the Indebtedness and obligations existing under the Existing Credit Agreement. The terms and conditions of this Agreement and the 118556040.20118095118.53 -129- Administrative Agent’s and the Lenders’ rights and remedies under this Agreement and the other Transaction Documents shall apply to all of the obligations incurred under the Existing Credit Agreement. This amendment and restatement is limited as written and is not a consent to any other amendment, restatement or waiver, whether or not similar and, unless specifically amended hereby or by any other Transaction Document, each of the Transaction Documents shall continue in full force and effect and, from and after the Second Amendment and Restatement Date, all references to the “Credit Agreement” contained therein shall be deemed to refer to this Agreement. Additionally, in connection with the foregoing, the Administrative Agent and the Lenders consent to (i) the amendment and restatement of the Parent Guaranty, the Security Agreement, the Pledge Agreement, the Subsidiary Guaranty, the Facility Administration Agreement, the Verification Agent Agreement, the Sale and Contribution Agreement, the Master SAP Contribution Agreement, the SAP Contribution Agreement and the SAP NTP Financing Documents (in each case, as defined under the Existing Credit Agreement in effect immediately prior to giving effect to this Agreement) and (ii) the amendment and restatement of the limited liability company agreement of the Borrower (as in effect on the date hereof), in form and substantivesubstance substance reasonably acceptable to the Administrative Agent. Notwithstanding anything contained herein to the contrary, the Parent Guaranty (as amended and restated on the Second Amendment and Restatement Date) and the obligations contained therein shall remain in full effect (as amended and restated) as of the Second Amendment and Restatement Date and shall survive the termination of the Transaction Documents in effect immediately prior to the effectiveness of this Agreement. (B) In connection with the Second Amendment and Restatement Date and the increase of commitments of the applicable Lenders on the date hereof, each Class A Lender immediately prior to the Second Amendment and Restatement Date (each, an “Second A&R Date Assignor” and, collectively, the “Second A&R Date Assignors”) hereby sells and assigns to Barclays (as Class A Lender), Salisbury Receivables Company LLC (as a Class A Lender) MUFG (as Class A Lender), Sheffield Receivables Company LLC (as a Class A Lender) and Victory Receivables Corporation (as Conduit Lender) (each a “Second A&R Date Assignee”), and such Second A&R Date Assignee hereby purchases and assumes from each such Second A&R Date Assignor its respective outstanding Advances along with its respective rights and obligations as a Non-Conduit Lender or Conduit Lender hereunder, as applicable, and other Transaction Documents related thereto in the amounts, and in exchange for payment by each Second A&R Date Assignee to each Second A&R Date Assignor on the date hereof of the amounts set out in the flow of funds agreed to by the parties hereto, plus accrued interest thereon through (and including) the date hereof which such interest will be paid by the Borrower to each Second A&R Date Assignor on the immediately following Payment Date pursuant to Section 2.7 herein.

Effect of Second Amendment and Restatement. (A) (A) Each of the parties hereto acknowledge and agree that, upon the satisfaction of the conditions in Section 3.1, on the Second Amendment and Restatement Date, the Existing Credit Agreement shall be amended and restated in its entirety by this Agreement, and the Existing Credit Agreement shall thereafter be of no further force and effect, except to evidence (i) the incurrence by the Borrower of the Existing Obligations under the Existing Credit Agreement (whether or not such obligations are contingent as of the Second Amendment and Restatement Date), (ii) the representations and warranties made by the Borrower prior to the Second Amendment and Restatement Date and (iii) any action or omission performed or required to be performed pursuant to such Existing Credit Agreement prior to the Second Amendment and Restatement Date (including any failure, prior to the Second Amendment and Restatement Date, 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 “Potential Default” or “Event of Default” under and as defined in the Existing Credit Agreement prior to the Second Amendment and Restatement Date. It is the intention of each of the parties hereto that the Existing Credit Agreement be amended and restated hereunder so as to preserve the perfection and priority of all Liens securing the “Obligations” under the Transaction Documents and that all “Obligations” of the Borrower hereunder shall continue to be secured by Liens evidenced under the Security Agreement, and that this Agreement does not constitute a novation or termination of the Indebtedness and obligations existing under the Existing Credit Agreement. The terms and conditions of this Agreement and the Administrative Agent’s and the Lenders’ rights and remedies under this Agreement and the other Transaction Documents shall apply to all of the obligations incurred under the Existing Credit Agreement. This amendment and restatement is limited as written and is not a consent to any other amendment, restatement or waiver, whether or not similar and, unless specifically amended hereby or by any other Transaction Document, each of the Transaction Documents shall continue in full force and effect and, from and after the Second Amendment and Restatement Date, all references to the “Credit Agreement” contained therein shall be deemed to refer to this Agreement. Additionally, in connection with the foregoing, the Administrative Agent and the Lenders consent to (i) the amendment and restatement of the Parent Guaranty, the Security Agreement, the Pledge Agreement, the Subsidiary Guaranty, the Facility Administration Agreement, the Verification Agent Agreement, the Sale and Contribution Agreement, the Master SAP Contribution Agreement, the SAP Contribution Agreement and the SAP NTP Financing Documents (in each case, as defined under the Existing Credit Agreement in effect immediately prior to giving effect to this Agreement) and (ii) the amendment and restatement of the limited liability company agreement of the Borrower (as in effect on the date hereof), in form and substantivesubstance substance reasonably acceptable to the Administrative Agent. Notwithstanding anything contained herein to the contrary, the Parent Guaranty (as amended and restated on the Second Amendment and Restatement Date) and the obligations contained therein shall remain in full effect (as amended and restated) as of the Second Amendment and Restatement Date and shall survive the termination of the Transaction Documents in effect immediately prior to the effectiveness of this Agreement. (B) In connection with the Second Amendment and Restatement Date and the increase of commitments of the applicable Lenders on the date hereof, each Class A Lender immediately prior to the Second Amendment and Restatement Date (each, an “Second A&R Date Assignor” and, collectively, the “Second A&R Date Assignors”) hereby sells and assigns to Barclays (as Class A Lender), Salisbury Receivables Company LLC (as a Class A Lender) MUFG (as Class A Lender), Sheffield Receivables Company LLC (as a Class A Lender) and Victory Receivables Corporation (as Conduit Lender) (each a “Second A&R Date Assignee”), and such Second A&R Date Assignee hereby purchases and assumes from each such Second A&R Date Assignor its respective outstanding Advances along with its respective rights and obligations as a Non-Conduit Lender or Conduit Lender hereunder, as applicable, and other Transaction Documents related thereto in the amounts, and in exchange for payment by each Second A&R Date Assignee to each Second A&R Date Assignor on the date hereof of the amounts set out in the flow of funds agreed to by the parties hereto, plus accrued interest thereon through (and including) the date hereof which such interest will be paid by the Borrower to each Second A&R Date Assignor on the immediately following Payment Date pursuant to Section 2.7 herein.