TO BE EFFECTIVE OR BE REINSTATED, AS THE
CASE MAY BE, IF AT ANY TIME PAYMENT, OR ANY PART THEREOF, OF ANY OBLIGATION IS
RESCINDED OR MUST OTHERWISE BE RESTORED BY ANY SECURED PARTY OR ANY GUARANTOR
UPON THE BANKRUPTCY OR REORGANIZATION OF THE PARENT BORROWER, ANY GUARANTOR OR
OTHERWISE.
2
SECTION 5.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6.
NO WAIVER; AMENDMENT.
(A)
NO FAILURE ON THE PART OF THE
ADMINISTRATIVE AGENT OR ANY GUARANTOR TO EXERCISE, AND NO DELAY IN EXERCISING,
ANY RIGHT, POWER OR REMEDY HEREUNDER SHALL OPERATE AS A WAIVER THEREOF, NOR
SHALL ANY SINGLE OR PARTIAL EXERCISE OF ANY SUCH RIGHT, POWER OR REMEDY BY THE
ADMINISTRATIVE AGENT OR ANY GUARANTOR PRECLUDE ANY OTHER OR FURTHER EXERCISE
THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR REMEDY.
ALL REMEDIES
HEREUNDER ARE CUMULATIVE AND ARE NOT EXCLUSIVE OF ANY OTHER REMEDIES PROVIDED BY
LAW.
NONE OF THE ADMINISTRATIVE AGENT AND THE GUARANTORS SHALL BE DEEMED TO
HAVE WAIVED ANY RIGHTS HEREUNDER UNLESS SUCH WAIVER SHALL BE IN WRITING AND
SIGNED BY SUCH PARTIES.
(b)
Neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to a written agreement entered into between the Parent
Borrower, the Guarantors and the Administrative Agent, with the prior written
consent of the Required Lenders (except as otherwise provided in the Credit
Agreement).
SECTION 7.
NOTICES.
ALL COMMUNICATIONS AND NOTICES HEREUNDER SHALL BE IN
WRITING AND GIVEN AS PROVIDED IN THE GUARANTEE AGREEMENT AND ADDRESSED AS
SPECIFIED THEREIN.
SECTION 8.
BINDING AGREEMENT; ASSIGNMENTS.
WHENEVER IN THIS AGREEMENT ANY OF
THE PARTIES HERETO IS REFERRED TO, SUCH REFERENCE SHALL BE DEEMED TO INCLUDE THE
SUCCESSORS AND ASSIGNS OF SUCH PARTY; AND ALL COVENANTS, PROMISES AND AGREEMENTS
BY OR ON BEHALF OF THE PARTIES THAT ARE CONTAINED IN THIS AGREEMENT SHALL BIND
AND INURE TO THE BENEFIT OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
NEITHER
THE PARENT BORROWER NOR ANY GUARANTOR MAY ASSIGN OR TRANSFER ANY OF ITS RIGHTS
OR OBLIGATIONS HEREUNDER (AND ANY SUCH ATTEMPTED ASSIGNMENT OR TRANSFER SHALL BE
VOID) WITHOUT THE PRIOR WRITTEN CONSENT OF THE REQUIRED LENDERS.
NOTWITHSTANDING THE FOREGOING, AT THE TIME ANY GUARANTOR IS RELEASED FROM ITS
OBLIGATIONS UNDER THE GUARANTEE AGREEMENT IN ACCORDANCE WITH SUCH GUARANTEE
AGREEMENT AND THE CREDIT AGREEMENT, SUCH GUARANTOR WILL CEASE TO HAVE ANY RIGHTS
OR OBLIGATIONS UNDER THIS AGREEMENT.
SECTION 9.
SURVIVAL OF AGREEMENT; SEVERABILITY.
(A)
ALL COVENANTS AND
AGREEMENTS MADE BY THE PARENT BORROWER AND EACH GUARANTOR HEREIN AND IN THE
CERTIFICATES OR OTHER INSTRUMENTS PREPARED OR DELIVERED IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE CONSIDERED TO HAVE BEEN RELIED
UPON BY THE ADMINISTRATIVE AGENT, THE OTHER SECURED PARTIES AND EACH GUARANTOR
AND SHALL SURVIVE THE MAKING BY THE LENDERS OF THE LOANS AND THE ISSUANCE OF THE
LETTERS OF CREDIT BY THE ISSUING BANK, AND SHALL CONTINUE IN FULL FORCE AND
EFFECT AS