OTHER LOAN DOCUMENT.
OTHER THAN AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THIS AGREEMENT SHALL NOT
CONSTITUTE A FORBEARANCE WITH RESPECT TO (I) ANY FAILURE BY THE COMPANY OR ANY
OF THE SUBSIDIARIES TO COMPLY WITH ANY COVENANT OR OTHER PROVISION IN THE LOAN
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR (II) THE OCCURRENCE OR CONTINUANCE OF
ANY PRESENT OR FUTURE EVENT OF DEFAULT.
6.2
RATIFICATION AND CONFIRMATION; SURVIVAL.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE TERMS, PROVISIONS AND
CONDITIONS OF THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE HEREBY
RATIFIED AND CONFIRMED AND SHALL REMAIN UNCHANGED AND IN FULL FORCE AND EFFECT
WITHOUT INTERRUPTION OR IMPAIRMENT OF ANY KIND.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY HEREIN, SECTIONS 2.2 AND 2.3 SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
8
6.3
GOVERNING LAW.
THIS AGREEMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
6.4
HEADINGS.
THE ARTICLE AND SECTION HEADINGS
CONTAINED IN THIS AGREEMENT ARE INSERTED FOR CONVENIENCE ONLY AND WILL NOT
AFFECT IN ANY WAY THE MEANING OR INTERPRETATION OF THIS AGREEMENT.
6.5
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS, EACH OF WHICH WILL BE DEEMED AN ORIGINAL
BUT ALL OF WHICH, WHEN TAKEN TOGETHER, WILL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
THIS AGREEMENT MAY BE DELIVERED BY EXCHANGE OF COPIES OF THE
SIGNATURE PAGE BY FACSIMILE TRANSMISSION OR ELECTRONIC MAIL.
6.6
SEVERABILITY.
THE PROVISIONS OF THIS
AGREEMENT WILL BE DEEMED SEVERABLE AND THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION WILL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF THE OTHER PROVISIONS
HEREOF; PROVIDED THAT IF ANY PROVISION OF THIS AGREEMENT, AS APPLIED TO ANY
PARTY OR TO ANY CIRCUMSTANCE, IS JUDICIALLY DETERMINED NOT TO BE ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS, THE PARTIES AGREE THAT THE COURT JUDICIALLY MAKING
SUCH DETERMINATION MAY MODIFY THE PROVISION IN A MANNER CONSISTENT WITH ITS
OBJECTIVES SUCH THAT IT IS ENFORCEABLE, AND/OR TO DELETE SPECIFIC WORDS OR
PHRASES, AND IN ITS MODIFIED FORM, SUCH PROVISION WILL THEN BE ENFORCEABLE AND
WILL BE ENFORCED.
6.7
AGREEMENT.
THIS AGREEMENT MAY NOT BE
AMENDED OR MODIFIED EXCEPT IN THE MANNER SPECIFIED FOR AN AMENDMENT OF OR
MODIFICATION TO THE LOAN AGREEMENT IN SECTION 12.10 OF THE LOAN AGREEMENT.
6.8
COSTS; EXPENSES.
EACH OF THE COMPANY AND
THE SUBSIDIARIES HEREBY AGREES TO PAY TO DDJ TOTAL RETURN LOAN FUND, L.P., DDJ
CAPITAL MANAGEMENT, LLC AND THEIR RESPECTIVE AFFILIATES ON DEMAND ALL COSTS AND
EXPENSES (INCLUDING THE FEES AND EXPENSES OF LEGAL COUNSEL) OF SUCH PERSON
INCURRED IN CONNECTION WITH THE COMPANY AND THE SUBSIDIARIES.
THE PROVISIONS OF
THIS SECTION 6.8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT PROVIDED,
HOWEVER, THAT THE OBLIGATIONS UNDER THIS SECTION 6.8 SHALL TERMINATE UPON THE
PAYMENT IN FULL OF THE OBLIGATIONS AND THE TERMINATION OF THE LOAN AGREEMENT.
6.9
ASSIGNMENT; BINDING EFFECT.
NEITHER THE
COMPANY NOR ANY SUBSIDIARY MAY ASSIGN EITHER THIS AGREEMENT OR ANY OF ITS
RIGHTS, INTERESTS OR OBLIGATIONS