AGREEMENT SHALL NOT OPERATE AS A WAIVER OF ANY RIGHT, POWER OR REMEDY OF THE
SECOND LIEN ADMINISTRATIVE AGENT OR THE SECOND LIEN LENDERS UNDER THE SECOND
LIEN CREDIT AGREEMENT OR ANY LOAN DOCUMENT, NOR SHALL IT CONSTITUTE A CONTINUING
WAIVER AT ANY TIME, (B) THE SECOND LIEN LENDERS SHALL NOT HAVE ANY OBLIGATION TO
EXTEND THE TERM OF THE FORBEARANCE PERIOD, (C) NOTHING HEREIN SHALL BE DEEMED TO
CONSTITUTE A WAIVER OF ANY DEFAULT OR EVENT OF DEFAULT, INCLUDING THE EXISTING
EVENTS OF DEFAULT, AND, EXCEPT AS EXPRESSLY PROVIDED HEREIN, NOTHING HEREIN
SHALL IN ANY WAY PREJUDICE THE RIGHTS AND REMEDIES OF THE SECOND LIEN
ADMINISTRATIVE AGENT OR THE SECOND LIEN LENDERS UNDER THE SECOND LIEN CREDIT
AGREEMENT, ANY LOAN DOCUMENT OR APPLICABLE LAW.
IN ADDITION, THE SECOND LIEN
ADMINISTRATIVE AGENT SHALL HAVE THE RIGHT TO WAIVE ANY CONDITION OR CONDITIONS
SET FORTH IN THIS AGREEMENT, THE SECOND LIEN CREDIT AGREEMENT OR ANY LOAN
DOCUMENT, IN ITS SOLE DISCRETION, AND ANY SUCH WAIVER SHALL NOT PREJUDICE, WAIVE
OR REDUCE ANY OTHER RIGHT OR REMEDY THAT THE SECOND LIEN ADMINISTRATIVE AGENT
MAY HAVE AGAINST ANY LOAN PARTY.
SECTION 4.9.
SURVIVAL.
ALL REPRESENTATIONS,
WARRANTIES, COVENANTS, AGREEMENTS, RELEASES AND WAIVERS MADE BY OR ON BEHALF OF
ANY LOAN PARTY UNDER THIS AGREEMENT SHALL SURVIVE AND CONTINUE AFTER THE
EXPIRATION OR TERMINATION OF THE FORBEARANCE PERIOD.
SECTION 4.10.
NO WAIVER OF RIGHTS. NO WAIVER SHALL
BE DEEMED TO BE MADE BY ANY PARTY HEREUNDER OF ANY OF ITS RIGHTS HEREUNDER
UNLESS THE SAME SHALL BE IN WRITING SIGNED ON BEHALF OF SUCH PARTY.
SECTION 4.11.
GOVERNING LAW.
THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 4.12.
ENTIRE AGREEMENT.
THIS AGREEMENT
(TOGETHER WITH THE FEE LETTER) SETS FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING
AMONG THE PARTIES AS TO THE SUBJECT MATTER HEREOF AND MERGES AND SUPERSEDES ALL
PRIOR DISCUSSIONS, AGREEMENTS, AND UNDERTAKINGS OF EVERY KIND AND NATURE AMONG
THEM WITH RESPECT TO THE SUBJECT MATTER HEREOF.
SECTION 4.13.
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS, AND BY THE PARTIES HERETO ON THE SAME OR
SEPARATE COUNTERPARTS AND BY FACSIMILE SIGNATURE, AND EACH SUCH COUNTERPART,
WHEN EXECUTED AND DELIVERED, SHALL BE DEEMED TO BE AN ORIGINAL, BUT ALL SUCH
COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME AGREEMENT.
SECTION 4.14.
SEVERABILITY OF PROVISIONS; CAPTIONS;
ATTACHMENTS.
WHEREVER POSSIBLE EACH PROVISION OF THIS AGREEMENT SHALL BE
INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW.
ANY PROVISION OF THIS AGREEMENT THAT IS PROHIBITED OR UNENFORCEABLE IN ANY
JURISDICTION SHALL, AS TO SUCH JURISDICTION, BE INEFFECTIVE TO THE EXTENT OF
SUCH PROHIBITION OR
9
UNENFORCEABILITY WITHOUT INVALIDATING THE REMAINING PROVISIONS HEREOF OR
AFFECTING THE VALIDITY OR ENFORCEABILITY OF SUCH PROVISION IN ANY OTHER
JURISDICTION. THE CAPTIONS TO SECTIONS AND SUBSECTIONS HEREIN ARE INSERTED FOR
CONVENIENCE ONLY AND SHALL BE IGNORED IN INTERPRETING THE PROVISIONS OF THIS
AGREEMENT.
EACH SCHEDULE OR EXHIBIT ATTACHED TO THIS AGREEMENT SHALL