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This excerpt taken from the ATVI 10-Q filed Nov 10, 2008. his Amendment shall become effective as of the date (the “Effective Date”) on
which each of the following conditions precedent shall have been satisfied:
(a) Execution and delivery. The Lender and the Borrower each shall have executed and delivered a duly executed counterpart of this Amendment.
(b) Representations and Warranties; No Defaults. The Lender shall have received a certificate of the Borrower certifying that both before and after giving effect to this Amendment:
(i) each of the representations and warranties set forth in Article III [Representations and Warranties] of the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date; provided, however, that references therein to the Credit Agreement shall be deemed to refer to the Credit Agreement as amended by this Amendment; and
(ii) no Default or Event of Default shall have occurred and be continuing, either on the date hereof or on the Effective Date.
Section 3. Representations and Warranties. The Borrower hereby represents and warrants to the Lender as follows:
(a) The execution, delivery and performance by the Borrower of this Amendment have been duly authorized by all requisite corporate action on the part of the Borrower and will not violate its certificate of incorporation or bylaws.
(b) This Amendment has been duly executed and delivered by the Borrower, and the Credit Agreement as amended hereby constitutes the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with their terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization and other similar laws relating to or affecting creditors’ rights generally and by the application of general equitable principles (whether considered in proceedings at law or in equity).
(c) (i) Each of the representations and warranties made by the Borrower in the Credit Agreement, as amended hereby, and the other Loan Documents, is true and correct in all material respects as of the Effective Date (other than representations and warranties in any such Loan Document that expressly speak as of an earlier date, which shall have been true and correct in all material respects as of such earlier date) and (ii) no Default or Event of Default has occurred and is continuing.
Section 4. Reference to and Effect on the Loan Documents.
(a) As of the Effective Date, each reference in the Credit Agreement and the other Loan Documents to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to the Credit Agreement or such other Loan Document as amended by this Amendment, and this Amendment and the Credit Agreement shall be read together and construed as a single instrument.
(b) Except to the extent expressly amended hereby, the Credit Agreement and all of the other Loan Documents are and shall remain in full force and effect and are hereby ratified and confirmed.
Section 5. Governing Law. This Amendment and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York.
Section 6. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purposes.
Section 7. Execution in Counterparts. This Amendment 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 one and the same instrument. Receipt by either party hereto of a facsimile copy of an executed signature page hereof shall constitute receipt by it of an executed counterpart of this Amendment.
Section 8. Waiver of Jury Trial. Each party hereto irrevocably waives trial by jury in any action or proceeding with respect to this Amendment or any other Loan Document.
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