Common use of Representations and Warranties of Credit Parties Clause in Contracts

Representations and Warranties of Credit Parties. In order to induce the Agent and the Required Lenders to enter into this Agreement, each Credit Party represents and warrants to Agent and each Lender (which representations and warranties shall survive the execution and delivery of this Agreement), that: (a) the execution, delivery and performance by each Credit Party of this Agreement has been duly authorized by all necessary corporate action and this Agreement is a legal, valid and binding obligation of such Credit Party enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and similar Laws relating to or affecting the enforceability of creditors' rights generally, and except that the availability of equitable remedies is subject to the discretion of the courts (regardless of whether enforcement is sought in a proceeding at law or in equity); (b) upon the effectiveness of this Agreement, all of the representations and warranties contained in the Credit Agreement and in the other Loan Documents (other than those which speak expressly only as of an earlier date) are true and correct in all material respects on and as of the date of the effectiveness of this Agreement after giving effect to this Agreement and the transactions contemplated hereby; (c) neither the execution, delivery or performance of this Agreement by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) any provision of such Credit Party's certificate or articles of incorporation or bylaws, or other organizational documents, (ii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit Party or any of its Subsidiaries or any of their property is bound, except in any such case to the extent such conflict or breach has been waived by a written waiver document, a copy of which has been delivered to Agent on or before the date hereof or which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (d) no Default or Event of Default exists or will result after giving effect to this Agreement and the transactions contemplated hereby.

Representations and Warranties of Credit Parties. In order to induce the Administrative Agent and the Required Lenders to enter into this AgreementAmendment, each Credit Party hereby represents and warrants to Administrative Agent and each Lender the Lenders that: (which a) The representations and warranties contained in Article VII of the Original Loan Agreement are true and correct in all material respects at and as of the Effective Time; provided, however, those representations and warranties containing a reference to a particular date shall survive continue to be qualified by reference to such date; (b) It is duly authorized to execute and deliver this Amendment and is duly authorized to borrow and perform its obligations under the Loan Agreement and the other Loan Documents. It has duly taken all corporate action necessary to authorize the execution and delivery of this Agreement), that:Amendment and to authorize the performance of the obligations of such Credit Party hereunder; (ac) The execution and delivery by it of this Amendment, the execution, delivery and performance by each it of its obligations hereunder and the consummation of the transactions contemplated hereby do not and will not conflict with, violate or constitute a breach or default under (i) any provision of Applicable Law applicable or binding upon it, except where such conflict, violation, breach or default reasonably would not be expected to result in a Material Adverse Effect, (ii) its organizational documents, (iii) any agreement or instrument to which it is a party or which is otherwise binding upon it, or (iv) any material judgment, license, order or permit applicable to or binding upon it; (d) Except for those which have been duly obtained, no consent, approval, exemption, authorization or other action by, notice to, or filing with any Governmental Authority or third party is required in connection with the execution and delivery by such Credit Party of this Agreement has been Amendment or to consummate the transactions contemplated hereby; and (e) When duly authorized by all necessary corporate action executed and delivered, this Agreement is Amendment will constitute a legal, valid and binding obligation of such each Credit Party Party, enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and or similar Laws laws relating to or affecting the enforceability enforcement of creditors' rights generally, and except that the availability of equitable remedies is subject to the discretion of the courts (regardless of whether enforcement is sought in a proceeding at law or in equity); (b) upon the effectiveness of this Agreement, all of the representations and warranties contained in the Credit Agreement and in the other Loan Documents (other than those which speak expressly only as of an earlier date) are true and correct in all material respects on and as of the date of the effectiveness of this Agreement after giving effect to this Agreement and the transactions contemplated hereby; (c) neither the execution, delivery or performance of this Agreement by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) any provision of such Credit Party's certificate or articles of incorporation or bylaws, or other organizational documents, (ii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit Party or any of its Subsidiaries or any of their property is bound, except in any such case to the extent such conflict or breach has been waived by a written waiver document, a copy of which has been delivered to Agent on or before the date hereof or which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (d) no Default or Event of Default exists or will result after giving effect to this Agreement and the transactions contemplated hereby’ rights.

Representations and Warranties of Credit Parties. In order to induce the Agent and the Required Lenders Prudential to enter into this AgreementAmendment, each of the Credit Party represents and warrants to Agent and each Lender (which representations Parties makes the following representations, covenants and warranties which shall survive the execution and delivery of this Agreement), thatthe Credit Documents: (ai) It has taken all necessary action to authorize the execution, delivery and performance by each Credit Party of this Agreement Amendment. (ii) This Amendment has been duly authorized executed and delivered by all necessary corporate action such Credit Party and this Agreement is a constitutes such Credit Party's legal, valid and binding obligation of such Credit Party obligation, enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited (x) by applicable general principles of equity and conflicts of laws or (y) by bankruptcy, reorganization, insolvency, reorganization, receivership, moratorium and similar Laws or other laws of general application relating to or affecting the enforceability enforcement, of creditors' rights generallyrights. (iii) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by such Credit Party of this Amendment. (iv) The execution and delivery of this Amendment does not diminish or reduce its obligations under the Credit Documents (including, without limitation, in the case of each Guarantor, such Guarantor's guaranty pursuant to paragraph 6 of the Note Agreement) in any manner, except that the availability of equitable remedies is subject as specifically set forth herein. (v) Such Credit Party has no claims, counterclaims, offsets, or defenses to the discretion Credit Documents and the performance of its obligations thereunder, or if such Credit Party has any such claims, counterclaims, offsets, or defenses to the Credit Documents or any transaction related to the Credit Documents, the same are hereby waived, relinquished and released in consideration of Prudential's execution and delivery of this Amendment. (vi) The representation and warranties of the courts Credit Parties set forth in Section 3 of the Third Amendment are true and correct as of the date hereof (regardless except those that relate to an earlier date) and all of whether enforcement is sought the provisions of the Credit Documents, except as amended hereby, are in a proceeding at law or in equity);full force and effect. (bvii) upon Subsequent to the effectiveness execution and delivery of this AgreementAmendment and after giving effect hereto, all no unwaived event has occurred and is continuing which constitutes a Default or an Event of Default. The Credit Parties hereby incorporate the representations and warranties contained in Section 1 of the Credit Agreement and (together with all related defined terms) as in the other Loan Documents (other than those which speak expressly only as of an earlier date) are true and correct in all material respects effect on and as of the date of the effectiveness of this Agreement after giving effect to this Agreement and the transactions contemplated hereby; (c) neither the execution, delivery or performance of this Agreement by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) any provision of such Credit Party's certificate or articles of incorporation or bylaws, or other organizational documents, (ii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit Party or any of its Subsidiaries or any of their property is bound, except in any such case to the extent such conflict or breach has been waived by a written waiver document, a copy of which has been delivered to Agent on or before the date hereof or which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (d) no Default or Event of Default exists or will result after giving effect to this Agreement and the transactions contemplated hereby.the

Representations and Warranties of Credit Parties. In order to induce On the Agent and the Required Lenders to enter into this AgreementEffective Date, each Credit Party represents and warrants to Agent and each Lender (which representations and warranties shall survive the execution and delivery of this Agreement), that: (a) the execution, delivery and performance by each Credit Party of this Agreement has been duly authorized by all necessary corporate action and this Agreement is a legal, valid and binding obligation of such Credit Party enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and similar Laws relating to or affecting the enforceability of creditors' rights generally, and except that the availability of equitable remedies is subject to the discretion of the courts (regardless of whether enforcement is sought in a proceeding at law or in equity); (b) upon the effectiveness of this Agreement, all of the representations and warranties contained made by each Loan Party in the Credit Agreement and in the other Loan Documents (other than those to which speak expressly only as of an earlier date) are such entity is a party is true and correct in all material respects on and as of the Effective Date as if made on and as of such date, except that (x) any representation or warranty which by its terms is made as of a specified date shall be true and correct in all material respects as of such specified date and (y) any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects. Each Loan Party hereby further represents and warrants as follows: (a) such Loan Party is duly organized, validly existing and in good standing under the effectiveness laws of its jurisdiction of formation, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction in which such qualification is required by law; (b) such Loan Party has full power and authority to enter into, and perform its obligations, under this Agreement after giving effect to this Agreement and the transactions contemplated herebyAmendment; (c) neither this Amendment has been duly authorized, executed and delivered by such Loan Party and all obligations of such Loan Party hereunder constitute valid and legally binding obligations of such Loan Party enforceable in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally or by general principles of equity; (d) such Loan Party’s execution, delivery or and performance of this Agreement by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate Amendment do not (i) violate any provision of such Credit Party's certificate or articles of incorporation or bylaws, or other organizational documentsapplicable law, (ii) any law or regulation, or any order or decree of any court or government instrumentalitycontravene its Organizational Documents, or (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any material provision of any mortgage, indenture, mortgagecontract, loan agreement, deed of trust, lease, agreement lease or other instrument to which such Credit Party agreement binding on it or affecting any of its Subsidiaries is a party property; (e) no authorization or by which such Credit Party other action by, and no notice to or filing with, any Person (including any Governmental Authority or any other third party) is necessary for its due execution, delivery and performance of this Amendment, or the enforceability in accordance with its Subsidiaries or any terms against of their property is boundthis Amendment against it, except in any such each case to the extent such conflict or breach that has not otherwise been waived by a written waiver document, a copy of which has been delivered to Agent on or before the date hereof or which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effectobtained; and (df) no Default or Event of Default exists has occurred and is continuing or will result after giving effect to from this Agreement and the transactions contemplated herebyAmendment going into effect.

Representations and Warranties of Credit Parties. In order to induce the Agent and the Required Lenders Prudential to enter into this AgreementAmendment, each of the Credit Party represents and warrants to Agent and each Lender (which representations Parties makes the following representations, covenants and warranties which shall survive the execution and delivery of this Agreement), thatthe Credit Documents: (ai) It has taken all necessary action to authorize the execution, delivery and performance by each Credit Party of this Agreement Amendment. (ii) This Amendment has been duly authorized executed and delivered by all necessary corporate action such Credit Party and this Agreement is a constitutes such Credit Party's legal, valid and binding obligation of such Credit Party obligation, enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited (x) by applicable general principles of equity and conflicts of laws or (y) by bankruptcy, reorganization, insolvency, reorganization, receivership, moratorium and similar Laws or other laws of general application relating to or affecting the enforceability enforcement, of creditors' rights generallyrights. (iii) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by such Credit Party of this Amendment. (iv) The execution and delivery of this Amendment does not diminish or reduce its obligations under the Credit Documents (including, without limitation, in the case of each Guarantor, such Guarantor's guaranty pursuant to paragraph 6 of the Note Agreement) in any manner, except that the availability of equitable remedies is subject as specifically set forth herein. (v) Such Credit Party has no claims, counterclaims, offsets, or defenses to the discretion Credit Documents and the performance of its obligations thereunder, or if such Credit Party has any such claims, counterclaims, offsets, or defenses to the Credit Documents or any transaction related to the Credit Documents, the same are hereby waived, relinquished and released in consideration of Prudential's execution and delivery of this Amendment. (vi) The representation and warranties of the courts Credit Parties set forth in Section 3 of the Third Amendment are true and correct as of the date hereof (regardless except those that relate to an earlier date) and all of whether enforcement is sought the provisions of the Credit Documents, except as amended hereby, are in a proceeding at law or in equity);full force and effect. (bvii) upon Subsequent to the effectiveness execution and delivery of this AgreementAmendment and after giving effect hereto, all no unwaived event has occurred and is continuing which constitutes a Default or an Event of Default. The Credit Parties hereby incorporate the representations and warranties contained in Section 1 of the Credit Agreement (together with all related defined terms) as in effect on the date hereof (and in after giving effect to the other Loan Documents terms and provisions of the Bank Third Amendment) by reference herein to the same extent as if set forth at length herein (other than those which speak expressly only as the "Incorporated Provisions") and each hereby makes such representations and warranties (to the knowledge of an earlier datethe Company, when applicable under the Credit Agreement) are true and correct in all material respects on and for the benefit of Prudential as of the date of hereof in connection with the effectiveness execution and delivery of this Agreement after giving effect Amendment; provided, that references in the Incorporated Provisions to "this Agreement Agreement" and the transactions contemplated hereby; (c) neither the execution, delivery or performance of this Agreement by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or "Notes" shall contravene, result in a breach of, or violate (i) any provision of such Credit Party's certificate or articles of incorporation or bylaws, or other organizational documents, (ii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit Party or any of its Subsidiaries or any of their property is bound, except in any such case be taken as references to the extent such conflict or breach has been waived by a written waiver document, a copy of which has been delivered Note Agreement as amended hereby and to Agent on or before the date hereof or which could not reasonably be expected Notes outstanding thereunder. The Company represents and warrants to have, either individually or in the aggregate, a Material Adverse Effect; and (d) Prudential that no Default or Event of Default exists or will result under the Note Agreement, both before and after giving effect to the provisions of this Amendment. The following Schedules to the Credit Agreement are also attached hereto: SCHEDULE II - Subsidiaries SCHEDULE III - Required Consents, Authorizations, Notices and Filings SCHEDULE IV - Existing Indebtedness of the transactions contemplated hereby.Company and its Subsidiaries SCHEDULE V - Representation Regarding Collateral Documents SCHEDULE VI - Existing Letters of Credit SCHEDULE VIII - Sources and Uses on Third Amendment Effective Date SCHEDULE IX - Certain Excluded Assets SCHEDULE X - Permitted Investments SCHEDULE XI - Permitted Liens

Representations and Warranties of Credit Parties. In order to induce the Agent and the Required Requisite Lenders to enter into this AgreementAmendment and Waiver, each Credit Party hereby represents and warrants to the Agent and each Lender (the Requisite Lenders, which representations and warranties shall survive the execution and delivery of this Agreement)Amendment and Waiver, that: (a) the execution, delivery and performance by each Credit Party of this Agreement Amendment and Waiver has been duly authorized by all necessary corporate action and this Agreement Amendment and Waiver is a legal, valid and binding obligation of such Credit Party enforceable against such Credit Party in accordance with its terms, except as such enforceability the enforcement thereof may be limited by subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, receivership, moratorium and or similar Laws relating to or law affecting the enforceability of creditors' rights generally, generally and except that the availability (ii) general principles of equitable remedies is subject to the discretion of the courts equity (regardless of whether such enforcement is sought in a proceeding in equity or at law or in equitylaw); (b) upon the effectiveness of this Agreement, all each of the representations and warranties contained in the Credit Agreement and in the other Loan Documents (other than those which speak expressly only as of an earlier date) are is true and correct in all material respects on and as of the date of hereof as if made on the effectiveness of this Agreement after giving effect date hereof, except to this Agreement the extent that such representations and the transactions contemplated herebywarranties expressly relate to an earlier date; (c) neither the execution, delivery or and performance of this Agreement Amendment and Waiver by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) any provision of such Credit Party's certificate or articles of incorporation or bylaws, or other organizational documents, (iiiii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit Party or any of its Subsidiaries or any of their property is bound, except in any such case to the extent such conflict or breach has been waived by a written waiver document, a copy of which has been delivered to Agent on or before the date hereof or which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effecthereof; and (d) other than the Specified Defaults, no Default or Event of Default exists or will result after giving effect to this Agreement has occurred and the transactions contemplated herebyis continuing.

Representations and Warranties of Credit Parties. In order to induce the Agent and the Required Lenders to enter into this Agreement, each Each Credit Party represents and warrants to Agent and each Lender (which representations and warranties shall survive that, as of the execution and delivery of this Agreement), that: date hereof: (a) Such Credit Party has the right and power and is duly authorized to enter into this Amendment; (b) No Event of Default or an event or condition which upon notice, lapse of time or both would constitute an Event of Default has occurred and is continuing; (c) The execution, delivery and performance by each such Credit Party of this Agreement has Amendment and the other agreements to which such Credit Party is a party (i) have been duly authorized by all necessary corporate action on its part; (ii) do not and this Agreement is a legalwill not, valid and binding obligation by the lapse of time, giving of notice or otherwise, violate the provisions of the terms of its Articles of Incorporation or Organization, By-Laws or Operating Agreement, or of any mortgage, indenture, security agreement, contract, undertaking or other agreement to which such Credit Party is a party, or which purports to be binding on such Credit Party or any of its properties; (iii) do not and will not, by lapse of time, the giving of notice or otherwise, contravene any governmental restriction to which such Credit Party or any of its properties may be subject; and (iv) do not and will not, except as contemplated in the Loan Agreement, result in the imposition of any lien, charge, security interest or encumbrance upon any of Borrower’s properties under any indenture, mortgage, deed of trust, loan or credit agreement or other agreement or instrument to which such Credit Party is a party or which purports to be binding on such Credit Party or any of its properties; (d) No consent, license, registration or approval of any governmental authority, bureau or agency is required in connection with the execution, delivery, performance, validity or enforceability of this Amendment; and (e) This Amendment has been duly executed and delivered by such Credit Party and is enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and similar Laws relating to or affecting the enforceability of creditors' rights generally, and except that the availability of equitable remedies is subject to the discretion of the courts (regardless of whether enforcement is sought in a proceeding at law or in equity); (b) upon the effectiveness of this Agreement, all of the representations and warranties contained in the Credit Agreement and in the other Loan Documents (other than those which speak expressly only as of an earlier date) are true and correct in all material respects on and as of the date of the effectiveness of this Agreement after giving effect to this Agreement and the transactions contemplated hereby; (c) neither the execution, delivery or performance of this Agreement by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) any provision of such Credit Party's certificate or articles of incorporation or bylaws, or other organizational documents, (ii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit Party or any of its Subsidiaries or any of their property is bound, except in any such case to the extent such conflict or breach has been waived by a written waiver document, a copy of which has been delivered to Agent on or before the date hereof or which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (d) no Default or Event of Default exists or will result after giving effect to this Agreement and the transactions contemplated hereby. 4.

Representations and Warranties of Credit Parties. In order to induce the Agent and the Required Lenders to enter into this AgreementAmendment, each Credit Party represents and warrants to Agent and each Lender (which representations and warranties shall survive the execution and delivery of this AgreementAmendment), that: (a) the execution, delivery and performance by each Credit Party of this Agreement Amendment has been duly authorized by all necessary corporate action and each of this Amendment and the Amended Credit Agreement is a legal, valid and binding obligation of such Credit Party enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and similar Laws laws relating to or affecting the enforceability of creditors' ’ rights generally, concepts of reasonableness and except that the availability of general equitable remedies is subject to the discretion of the courts (regardless of whether enforcement is sought in a proceeding at law or in equity)principles; (b) upon the effectiveness of this Agreement, all of the representations and warranties contained in the Amended Credit Agreement and in the other Loan Documents (other than those which speak expressly only as of an earlier date) are true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date of the effectiveness of this Agreement Amendment after giving effect to this Agreement Amendment and the transactions contemplated hereby, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true or correct in all material respect (without duplication of any materiality qualifier contained therein) as of such earlier date); (c) neither the execution, delivery or performance of this Agreement Amendment by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) contravene the terms of any provision of such Credit Party's certificate or articles of incorporation or bylaws, or other organizational documentsthat Person’s Organization Documents, (ii) conflict with or result in any law material breach or regulationcontravention of, or result in the creation of any order Lien under, any document evidencing any material Contractual Obligation to which such Person is a party or any order, injunction, writ or decree of any court Governmental Authority to which such Person or government instrumentality, its Property is subject; or (iii) violate any indenture, mortgage, deed material Requirement of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit Party or any of its Subsidiaries or any of their property is bound, except Law in any such case to the extent such conflict or breach has been waived by a written waiver document, a copy of which has been delivered to Agent on or before the date hereof or which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effectmaterial respect; and (d) no Default or Event of Default exists has occurred and is continuing or will would result immediately after giving effect to this Agreement Amendment and the transactions contemplated hereby.

Representations and Warranties of Credit Parties. In order to induce the Agent and the Required Lenders to enter into this AgreementAmendment, each Credit Party represents and warrants to Agent and each Lender (which representations and warranties shall survive the execution and delivery of this AgreementAmendment), that: (a) the execution, delivery and performance by each Credit Party of this Agreement Amendment has been duly authorized by all necessary corporate action and each of this Agreement Amendment and the Credit Agreement, as amended by this Amendment, is a legal, valid and binding obligation of such Credit Party enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and similar Laws laws relating to or affecting the enforceability of creditors' ’ rights generally, concepts of reasonableness and except that the availability of general equitable remedies is subject to the discretion of the courts (regardless of whether enforcement is sought in a proceeding at law or in equity)principles; (b) upon the effectiveness of this Agreement, all of the representations and warranties contained in the Credit Agreement and in the other Loan Documents (other than those which speak expressly only as of an earlier date) are true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date of the effectiveness of this Agreement Amendment after giving effect to this Agreement Amendment and the waiver and transactions contemplated hereby, except to the extent that such representations or warranties expressly relate to an earlier date (in which event such representations and warranties were true or correct in all material respect (without duplication of any materiality qualifier contained therein) as of such earlier date); (c) neither the execution, delivery or performance of this Agreement Amendment by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) contravene the terms of any provision of such Credit Party's certificate or articles of incorporation or bylaws, or other organizational documentsthat Person’s Organization Documents, (ii) conflict with or result in any law material breach or regulationcontravention of, or result in the creation of any order Lien under, any document evidencing any material Contractual Obligation to which such Person is a party or any order, injunction, writ or decree of any court Governmental Authority to which such Person or government instrumentality, its Property is subject; or (iii) violate any indenture, mortgage, deed material Requirement of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit Party or any of its Subsidiaries or any of their property is bound, except Law in any such case to the extent such conflict or breach has been waived by a written waiver document, a copy of which has been delivered to Agent on or before the date hereof or which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effectmaterial respect; and (d) other than the Specified Default, no Default or Event of Default exists has occurred and is continuing or will would result immediately after giving effect to this Agreement Amendment and the transactions contemplated hereby.

Representations and Warranties of Credit Parties. In order to induce the Agent and the Required Lenders Holders to enter into this AgreementAmendment, each Credit Party Principal Borrower represents and warrants to the Agent and each Lender the Holders (which representations and warranties shall survive the execution and delivery of this Agreement), Amendment) that: (a) the execution, delivery and performance by each Credit Party Principal Borrower of this Agreement has Amendment have been duly authorized by all necessary corporate action required on its part and this Agreement Amendment is a legal, valid and binding obligation of such Credit Party Principal Borrower enforceable against such Credit Party Principal Borrower in accordance with its terms, terms except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, receivershipmoratorium, moratorium and liquidation or similar Laws laws relating to to, or affecting the enforceability of creditors' rights generally, the enforcement of applicable creditors’ rights and except that the availability of equitable remedies is subject to the discretion of the courts (regardless of whether enforcement is sought in a proceeding at law or in equity)remedies; (b) upon after giving effect to this Amendment and the effectiveness of this Agreementtransactions contemplated hereby, all each of the representations and warranties contained in the Credit Financing Agreement and in the other Loan Transaction Documents (other than those which speak expressly only as of an earlier date) are is true and correct in all material respects on and as of the date hereof as if made on the date hereof (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date); (c) the execution, delivery and performance of this Amendment by the Principal Borrower and the consummation by the Principal Borrower of the transactions contemplated hereby do not and will not (i) result in a violation of the Principal Borrower’s certificate or articles of incorporation or bylaws or other governing documents, or the terms of any capital stock or other equity interests of the Principal Borrower; (ii) conflict with, or constitute a breach or default (or an event which, with notice or lapse of time or both, would become a breach or default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Principal Borrower is a party; (iii) result in any “price reset” or other material change in or other modification to the terms of any Indebtedness, Equity Interests or other securities of the Principal Borrower; or (iv) result in a violation of any law, rule, regulation, order, judgment or decree (including, without limitation, (A) any Environmental Laws, or (B) federal and state securities laws or (C) the rules and regulations of the Principal Market applicable to the Principal Borrower or by which any property or asset of the Principal Borrower is bound or affected; (d) no Event of Default (or event or circumstance that, with the passage of time, the giving of notice, or both, would become an Event of Default) shall have occurred and be continuing or would result from the effectiveness of this Agreement after giving effect to this Agreement and Amendment or the consummation of the transactions contemplated hereby; (ce) neither the execution, delivery or performance of this Agreement by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) the disposition of any provision Collateral in accordance with the procedures and other terms of such Credit Party's certificate or articles that certain ROFO/ROFR Agreement by and among Xxxxx, the Investors (each as defined in the Financing Agreement after giving effect to this Amendment) and the Agent, dated as of incorporation or bylawsOctober 19, 2009, as amended, restated, supplemented, or other organizational documentsotherwise modified from time to time, shall be deemed to have been made in a commercially reasonable manner and (ii) in connection with any law such public disposition, the Agent and the other Secured Parties shall have no obligation to engage in public auctions or regulation, other public sales (whether through the use of “sealed bids” or any order or decree otherwise) of any court of the Collateral; and (f) since September 30, 2008, there shall have been no event or government instrumentalityoccurrence or series of events or occurrences that, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit Party or any of its Subsidiaries or any of their property is bound, except in any such case to the extent such conflict or breach has been waived by a written waiver document, a copy of which has been delivered to Agent on or before the date hereof or which could not reasonably be expected to have, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect; and (d) no Default or Event of Default exists or will result after giving effect to this Agreement and the transactions contemplated hereby.

Representations and Warranties of Credit Parties. In order to induce Each of the Agent and the Required Lenders to enter into this Agreement, each Credit Party Parties represents and warrants as follows as of the date hereof, after giving effect to Agent and each Lender (which representations and warranties shall survive the execution and delivery of this Agreement), thatAmendment: (a) It has taken all necessary action to authorize the execution, delivery and performance by each Credit Party of this Agreement Amendment. (b) This Amendment has been duly authorized executed and delivered by all necessary corporate action such Person and this Agreement is a legal, constitutes such Person's valid and legally binding obligation of such Credit Party obligations, enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited by subject to (i) applicable bankruptcy, insolvency, reorganization, receivershipfraudulent conveyance or transfer, moratorium and or similar Laws relating to or laws affecting the enforceability of creditors' rights generally, generally and except that the availability (ii) general principles of equitable remedies is subject to the discretion of the courts equity (regardless of whether enforcement such enforceability is sought considered in a proceeding at law or in equity); (b) upon the effectiveness of this Agreement, all of the representations and warranties contained in the Credit Agreement and in the other Loan Documents (other than those which speak expressly only as of an earlier date) are true and correct in all material respects on and as of the date of the effectiveness of this Agreement after giving effect to this Agreement and the transactions contemplated hereby;. (c) neither No consent, approval, authorization or order of, or registration or qualification with, any Governmental Authority or third party is required in connection with the execution, delivery or performance by such Person of this Agreement Amendment. (d) No filing with any Governmental Authority or third party is required in connection with the execution, delivery or performance by each Credit Party nor the consummation such Person of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) any provision of such Credit Party's certificate or articles of incorporation or bylaws, or other organizational documents, (ii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit Party or any of its Subsidiaries or any of their property is boundthis Amendment, except in any such case to for those filings the extent such conflict or breach has been waived by a written waiver document, a copy failure of which has been delivered to Agent on or before the date hereof or which make by such Person could not reasonably be expected to have, either individually or in the aggregate, have a Material Adverse Effect; and. (de) no Default or Event The representations and warranties set forth in Article III of Default exists or will result after the Credit Agreement are true and correct as of the date hereof (except for those which expressly relate to an earlier date). (f) After giving effect to this Agreement Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default. (g) The Security Documents continue to create a valid security interest in, and Lien upon, the transactions contemplated herebyCollateral, in favor of the Administrative Agent, for the benefit of the Lenders, which security interests and Liens are perfected in accordance with the terms of the Security Documents and prior to all Liens other than Permitted Liens. (h) Except as specifically provided in this Amendment, the Credit Party Obligations are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.

Representations and Warranties of Credit Parties. In order to induce the Agent The Credit Parties represent and the Required Lenders to enter into this Agreement, each Credit Party represents and warrants warrant to Agent and each Lender (which representations and warranties shall survive the execution and delivery of this Agreement), thatas follows: (a) the The execution, delivery and performance by each Credit Party of this Agreement has Waiver and Amendment: (1) are within such Person's corporate power; (2) have been duly authorized by all necessary or proper corporate action and this Agreement is a legal, valid and binding obligation of such Credit Party enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium and similar Laws relating to or affecting the enforceability of creditors' rights generally, and except that the availability of equitable remedies is subject to the discretion of the courts shareholder action; (regardless of whether enforcement is sought in a proceeding at law or in equity); (b3) upon the effectiveness of this Agreement, all of the representations and warranties contained in the Credit Agreement and in the other Loan Documents (other than those which speak expressly only as of an earlier date) are true and correct in all material respects on and as of the date of the effectiveness of this Agreement after giving effect to this Agreement and the transactions contemplated hereby; (c) neither the execution, delivery or performance of this Agreement by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) do not contravene any provision of such Credit PartyPerson's certificate or articles of incorporation charter or bylaws, or other organizational documents, ; (ii4) do not violate any law or regulation, or any order or decree of any court Governmental Authority; (5) do not conflict with or government instrumentalityresult in the breach or termination of, constitute a default under or (iii) accelerate or permit the acceleration of any performance required by, any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries Person is a party or by which such Credit Party Person or any of its Subsidiaries or any of their property is bound; (6) do not result in the creation or imposition of any Lien upon any of the property of such Person other than those in favor of Agent, except in any such case on behalf of itself and Lenders, pursuant to the extent such conflict Loan Documents; and (7) do not require the consent or breach approval of any Governmental Authority or any other Person. (b) This Waiver and Amendment has been waived duly executed and delivered by each Credit Party and constitutes a written waiver documentlegal, a copy valid and binding obligation of which has been delivered such Credit Party enforceable against it in accordance with its terms. (c) After giving effect to Agent on or before that certain letter agreement dated the date hereof among Borrower, Agent and Lenders and to the waivers and amendments contained in this Waiver and Amendment, each of the representations and warranties of the Credit Parties contained in Credit Agreement and each of the other Loan Documents shall be true and correct on and as of the Effective Date as if made on warranty expressly relates to an earlier date and except for changes therein expressly permitted or which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; andexpressly contemplated by such agreements. (d) After giving effect to that certain letter agreement dated the date hereof among Borrower, Agent and Lenders and to the waivers and amendments contained in this Waiver and Amendment, no Default or Event of Default exists or will result after giving effect to this Agreement and the transactions contemplated herebyshall be continuing.

Representations and Warranties of Credit Parties. In order to induce the Agent and the Required Lenders Prudential to enter into this AgreementAmendment, each of the Credit Party represents and warrants to Agent and each Lender (which representations Parties makes the following representations, covenants and warranties which shall survive the execution and delivery of this Agreement), thatthe Credit Documents: (ai) It has taken necessary action to authorize the execution, delivery and performance by each Credit Party of this Agreement Amendment. (ii) This Amendment has been duly authorized executed and delivered by all necessary corporate action such Credit Party and this Agreement is a constitutes such Credit Party's legal, valid and binding obligation of such Credit Party obligation, enforceable against such Credit Party in accordance with its terms, except as such enforceability may be limited (x) by applicable general principles of equity and conflicts of laws of (y) by bankruptcy, reorganization, insolvency, reorganization, receivership, moratorium and similar Laws or other laws of general application relating to or affecting the enforceability enforcement, of creditors' rights generally, and except that the availability of equitable remedies is subject to the discretion of the courts (regardless of whether enforcement is sought in a proceeding at law or in equity);rights. (biii) upon the effectiveness of this AgreementNo consent, all of the representations and warranties contained approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in the Credit Agreement and in the other Loan Documents (other than those which speak expressly only as of an earlier date) are true and correct in all material respects on and as of the date of the effectiveness of this Agreement after giving effect to this Agreement and the transactions contemplated hereby; (c) neither connection with the execution, delivery or performance of this Agreement by each Credit Party nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) any provision of such Credit Party's certificate or articles of incorporation or bylaws, or other organizational documents, (ii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party of this Amendment. (iv) The execution and delivery of this Amendment does not diminish or reduce its obligations under the Credit Documents (including, without limitation, in the case of each Guarantor, such Guarantor's guaranty pursuant to paragraph 6 of the Note Agreement) in any manner, except as specifically set forth herein. (v) Such Credit Party has no claims, counterclaims, offsets, or defenses to the Credit Documents and the performance of its Subsidiaries is a party obligations thereunder, or by which if such Credit Party has any such claims, counterclaims, offsets, or defenses to the Credit Documents or any of its Subsidiaries or any of their property is bound, except in any such case transaction related to the extent such conflict or breach has been waived by a written waiver documentCredit Documents, a copy the same are hereby waived, relinquished and released in consideration of which has been delivered to Agent on or before Prudential's execution and delivery of this Amendment. (vi) The representation and warranties of the Credit Parties set forth in Section 3 of the Third Amendment are true and correct as of the date hereof or which could not reasonably be expected (except those that relate to havean earlier date) and all of the provisions of the Credit Documents, either individually or except as amended hereby, are in the aggregate, a Material Adverse Effect; andfull force and effect. (dvii) no Default or Event Subsequent to the execution and delivery of Default exists or will result this Amendment and after giving effect to this Agreement hereto, no unwaived event has occurred and the transactions contemplated herebyis continuing which constitutes a Default or an Event of Default.

Representations and Warranties of Credit Parties. In order to induce the Agent and the Required Lenders to enter into this Agreement, each Credit Party represents and warrants to Agent and each Lender (which representations and warranties shall survive the execution and delivery of this Agreement), that: (a) the The execution, delivery and performance by each Credit Party Borrower of this Agreement Amendment has been duly authorized by all necessary corporate action and this Agreement Amendment is a legal, valid and binding obligation of such Credit Party Borrower enforceable against such Credit Party Borrower in accordance with its terms, except as such enforceability the enforcement thereof may be limited by subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, receivership, moratorium or similar law affecting creditors’ rights generally and similar Laws relating to or affecting the enforceability (ii) general principles of creditors' rights generally, and except that the availability of equitable remedies is subject to the discretion of the courts equity (regardless of whether such enforcement is sought in a proceeding in equity or at law or in equitylaw); (b) upon the effectiveness of this Agreement, all Each of the representations and warranties contained in the Credit Agreement and in the other Loan Documents (other than those which speak expressly only as of an earlier date) are is true and correct in all material respects on and as of the date of hereof as if made on the effectiveness of this Agreement after giving effect date hereof, except to this Agreement the extent that such representations and the transactions contemplated hereby;warranties expressly relate to an earlier date; and (c) neither Neither the execution, delivery or and performance of this Agreement Amendment by each Credit Party Borrower nor the consummation of the transactions contemplated hereby or thereby does or shall contravene, result in a breach of, or violate (i) any provision of such Credit Party's Borrower’s certificate or articles of incorporation or bylaws, or other organizational documents, (ii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party Borrower or any of its Subsidiaries is a party or by which such Credit Party Borrower or any of its Subsidiaries or any of their property is bound, except in any such case to the extent such conflict or breach has been waived by a written waiver document, a copy of which has been delivered to Agent on or before the date hereof or which could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect; and (d) no Default or Event of Default exists or will result after giving effect to this Agreement and the transactions contemplated herebyhereof.