CONSEQUENT THEREON. NO COURSE OF DEALING OR DELAY OR
OMISSION ON THE PART OF THE AGENT OR ANY LENDER IN EXERCISING ANY RIGHT SHALL
OPERATE AS A WAIVER THEREOF OR OTHERWISE BE PREJUDICIAL THERETO. NO NOTICE TO OR
DEMAND UPON THE BORROWER SHALL ENTITLE THE BORROWER TO OTHER OR FURTHER NOTICE
OR DEMAND IN SIMILAR OR OTHER CIRCUMSTANCES.
§27.
SEVERABILITY.
THE PROVISIONS OF THIS AGREEMENT
ARE SEVERABLE, AND IF ANY ONE CLAUSE OR PROVISION HEREOF SHALL BE HELD INVALID
OR UNENFORCEABLE IN WHOLE OR IN PART IN ANY JURISDICTION, THEN SUCH INVALIDITY
OR UNENFORCEABILITY SHALL AFFECT ONLY SUCH CLAUSE OR PROVISION, OR PART THEREOF,
IN SUCH JURISDICTION, AND SHALL NOT IN ANY MANNER AFFECT SUCH CLAUSE OR
PROVISION IN ANY OTHER JURISDICTION, OR ANY OTHER CLAUSE OR PROVISION OF THIS
AGREEMENT IN ANY JURISDICTION.
§28.
ACKNOWLEDGMENTS.
EACH OF THE BORROWER AND THE
GUARANTORS HEREBY ACKNOWLEDGES THAT: (I) NEITHER THE AGENT NOR ANY LENDER HAS
ANY FIDUCIARY RELATIONSHIP WITH, OR FIDUCIARY DUTY TO, THE BORROWER AND THE
GUARANTORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS; (II) THE RELATIONSHIP IN CONNECTION HEREWITH BETWEEN THE
AGENT AND THE LENDERS, ON THE ONE HAND, AND THE BORROWER AND EACH GUARANTOR, ON
THE OTHER HAND, IS SOLELY THAT OF CREDITOR AND DEBTOR AND (III) NO JOINT VENTURE
OR PARTNERSHIP AMONG ANY OF THE PARTIES HERETO IS CREATED HEREBY OR BY THE OTHER
LOAN DOCUMENTS, OR OTHERWISE EXISTS BY VIRTUE OF THE FACILITY OR THE LOANS.
§29.
CONSENT TO AMENDMENT AND RESTATEMENT; TRANSITIONAL
ARRANGEMENTS.
§29.1.
Existing Credit Agreement Superseded.
This Agreement
shall supersede the Existing Credit Agreement in its entirety, except as
provided in this § 29.
On the Effective Date, the rights and obligations of the
parties under the Existing Credit Agreement and the "Notes" defined therein
shall be subsumed within and be governed by this Agreement and the Notes,
provided, however, that any of the "Loans" (as defined in the Existing Credit
Agreement) outstanding under the Existing Credit Agreement shall, for purposes
of this Agreement, be Loans hereunder.
This Agreement is given as a
substitution of, and not as a payment of, the obligation of Borrower under the
Existing Credit Agreement and is not intended to constitute a novation of the
Existing Credit Agreement.
§29.2.
[Intentionally Omitted].
§29.3.
Interest and Fees under the Existing Agreement.
All
interest and all commitment, facility and other fees and expenses that have
accrued before the date hereof under or in respect of the Existing Credit
Agreement shall be calculated as of the Effective Date (prorated in the case of
any fractional periods), and Borrower shall continue to be liable in respect of
such amounts to the Lenders party to the Existing Credit Agreement and to Agent,
in accordance with the Existing Credit Agreement, as if the Existing Credit
Agreement were still in effect.
73
[The remainder of this page intentionally left blank]
74
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument