ALL INTEREST ACCRUED THEREON, IS
ABSOLUTE AND UNCONDITIONAL, AND THERE EXISTS NO RIGHT OF SET OFF OR RECOUPMENT,
COUNTERCLAIM OR DEFENSE OF ANY NATURE WHATSOEVER TO PAYMENT OF THE OBLIGATIONS.
3.
EFFECT AND CONSTRUCTION OF AGREEMENT.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE CREDIT AGREEMENT AND THE LOAN DOCUMENTS
SHALL REMAIN IN FULL FORCE AND EFFECT IN ACCORDANCE WITH THEIR RESPECTIVE TERMS,
AND THIS AGREEMENT SHALL NOT BE CONSTRUED TO:
(I)
WAIVE OR IMPAIR ANY RIGHTS, POWERS OR
REMEDIES OF THE LENDERS UNDER THE CREDIT AGREEMENT AND THE LOAN DOCUMENTS; OR
(II)
CONSTITUTE AN AGREEMENT BY THE LENDERS OR
REQUIRE THE LENDERS TO WAIVE ADDITIONAL DEFAULTS OR MAKE FURTHER AMENDMENTS TO
THE CREDIT AGREEMENT.
In the event of any inconsistency between the terms of this Agreement and the
Credit Agreement or any of the Loan Documents, this Agreement shall govern.
The
Borrower acknowledges that it has consulted with counsel and with such other
experts and advisors as it has deemed necessary in connection with the
negotiation, execution and delivery of this Agreement.
This Agreement shall be
construed without regard to any presumption or rule requiring that it be
construed against the party causing this Agreement or any part hereof to be
drafted.
4.
MISCELLANEOUS.
(A)
FURTHER ASSURANCE.
THE BORROWER AGREES TO
EXECUTE SUCH OTHER AND FURTHER DOCUMENTS AND INSTRUMENTS AS THE LENDERS MAY
REQUEST TO IMPLEMENT THE PROVISIONS OF THIS AGREEMENT.
(B)
BENEFIT OF AGREEMENT.
THIS AGREEMENT SHALL
BE BINDING UPON AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE PARTIES
HERETO, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
NO OTHER PERSON OR ENTITY
SHALL BE ENTITLED TO CLAIM ANY RIGHT OR BENEFIT HEREUNDER, INCLUDING, WITHOUT
LIMITATION, THE STATUS OF A THIRD-PARTY BENEFICIARY OF THIS AGREEMENT.
(C)
INTEGRATION.
THIS AGREEMENT, TOGETHER WITH
THE CREDIT AGREEMENT, AND THE LOAN DOCUMENTS, CONSTITUTES THE ENTIRE AGREEMENT
AND UNDERSTANDING AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND
SUPERSEDES ALL PRIOR PROPOSALS, NEGOTIATIONS, AGREEMENTS AND UNDERSTANDINGS
RELATING TO SUCH SUBJECT MATTER.
IN ENTERING INTO THIS AGREEMENT, THE BORROWER
ACKNOWLEDGES THAT IT IS RELYING ON NO STATEMENT, REPRESENTATION, WARRANTY,
COVENANT OR
AGREEMENT OF ANY KIND MADE BY THE LENDERS OR ANY EMPLOYEE OR AGENT OF THE
LENDERS, EXCEPT FOR THE AGREEMENTS OF THE LENDERS SET FORTH HEREIN.
(D)
SEVERABILITY.
THE PROVISIONS OF THIS
AGREEMENT ARE INTENDED TO BE SEVERABLE.
IF ANY PROVISIONS OF THIS AGREEMENT
SHALL BE HELD INVALID OR UNENFORCEABLE IN WHOLE OR IN PART IN ANY JURISDICTION,
SUCH PROVISION SHALL, AS TO SUCH JURISDICTION, BE INEFFECTIVE TO THE EXTENT OF
SUCH INVALIDITY OR ENFORCEABILITY WITHOUT IN ANY MANNER AFFECTING THE VALIDITY
OF ENFORCEABILITY OF SUCH PROVISION IN ANY OTHER JURISDICTION OR THE REMAINING
PROVISIONS OF THIS AGREEMENT IN ANY JURISDICTION.
(E)
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES OF SUCH
STATE.
(F)
COUNTERPARTS; TELECOPIED SIGNATURES.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY DIFFERENT