INTEREST PAYABLE IN RESPECT OF SUCH
LOAN OR PARTICIPATION HEREUNDER, TOGETHER WITH ALL CHARGES PAYABLE IN RESPECT
THEREOF, SHALL BE LIMITED TO THE MAXIMUM RATE AND, TO THE EXTENT LAWFUL, THE
INTEREST AND CHARGES THAT WOULD HAVE BEEN PAYABLE IN RESPECT OF SUCH LOAN OR
PARTICIPATION BUT WERE NOT PAYABLE AS A RESULT OF THE OPERATION OF THIS
SECTION 9.09 SHALL BE CUMULATED AND THE INTEREST AND CHARGES PAYABLE TO SUCH
LENDER IN RESPECT OF OTHER LOANS OR PARTICIPATIONS OR PERIODS SHALL BE INCREASED
(BUT NOT ABOVE THE MAXIMUM RATE THEREFOR) UNTIL SUCH CUMULATED AMOUNT, TOGETHER
WITH INTEREST THEREON AT THE FEDERAL FUNDS EFFECTIVE RATE TO THE DATE OF
REPAYMENT, SHALL HAVE BEEN RECEIVED BY SUCH LENDER.
SECTION 9.10.
ENTIRE AGREEMENT.
THIS AGREEMENT, THE FEE LETTER DATED
FEBRUARY 17, 2003, AS AMENDED, BETWEEN THE BORROWER AND THE ADMINISTRATIVE
AGENT, AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE CONTRACT BETWEEN THE
PARTIES RELATIVE TO THE SUBJECT MATTER HEREOF.
ANY OTHER PREVIOUS AGREEMENT
AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF IS SUPERSEDED BY
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
NOTHING IN THIS AGREEMENT OR IN
THE OTHER LOAN DOCUMENTS, EXPRESSED OR IMPLIED, IS INTENDED TO CONFER UPON ANY
PERSON (OTHER THAN THE PARTIES HERETO AND THERETO, THEIR RESPECTIVE SUCCESSORS
AND ASSIGNS PERMITTED HEREUNDER (INCLUDING ANY AFFILIATE OF THE ISSUING BANK
THAT ISSUES ANY LETTER OF CREDIT) AND, TO THE EXTENT EXPRESSLY CONTEMPLATED
HEREBY, THE RELATED PARTIES OF EACH OF THE ADMINISTRATIVE AGENT, THE COLLATERAL
AGENT, THE ISSUING BANK AND THE LENDERS) ANY RIGHTS, REMEDIES, OBLIGATIONS OR
LIABILITIES UNDER OR BY REASON OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
SECTION 9.11.
WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12.
SEVERABILITY.
IN THE EVENT ANY ONE OR MORE OF THE PROVISIONS
CONTAINED IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHOULD BE HELD
INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT, THE VALIDITY, LEGALITY AND
ENFORCEABILITY OF THE REMAINING PROVISIONS CONTAINED HEREIN AND THEREIN SHALL
NOT IN ANY WAY BE AFFECTED OR IMPAIRED THEREBY (IT BEING UNDERSTOOD THAT THE
INVALIDITY OF A PARTICULAR PROVISION IN A PARTICULAR JURISDICTION SHALL NOT IN
AND OF ITSELF AFFECT THE VALIDITY OF SUCH PROVISION IN ANY OTHER JURISDICTION).
THE PARTIES SHALL ENDEAVOR IN GOOD-FAITH
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negotiations to replace the invalid, illegal