IF ANY LENDER IS, FOR
ANY REASON, COMPELLED BY A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION TO
SURRENDER OR DISGORGE ANY PAYMENT, INTEREST OR OTHER CONSIDERATION DESCRIBED
HEREUNDER TO ANY PERSON BECAUSE THE SAME IS DETERMINED TO BE VOID OR VOIDABLE AS
A PREFERENCE, FRAUDULENT CONVEYANCE, IMPERMISSIBLE SET-OFF OR FOR ANY OTHER
REASON, SUCH INDEBTEDNESS OR PART THEREOF INTENDED TO BE SATISFIED BY VIRTUE OF
SUCH PAYMENT, INTEREST OR OTHER CONSIDERATION SHALL BE REVIVED AND CONTINUE AS
IF SUCH PAYMENT, INTEREST OR OTHER CONSIDERATION HAD NOT BEEN RECEIVED BY SUCH
LENDER, AND THE BORROWERS AND GUARANTOR SHALL BE LIABLE TO, AND SHALL INDEMNIFY,
DEFEND (ENGAGING COUNSEL ACCEPTABLE TO SUCH LENDER) AND HOLD SUCH LENDER
HARMLESS FOR, THE AMOUNT OF SUCH PAYMENT OR INTEREST SURRENDERED OR DISGORGED.
THE PROVISIONS OF THIS SECTION 9 SHALL SURVIVE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE DOCUMENTS, AGREEMENTS AND INSTRUMENTS TO BE EXECUTED OR
DELIVERED HEREWITH.
10.
NO DEFENSES; RELIANCE.
(A)
EACH OF THE BORROWERS AND THE GUARANTOR
HEREBY ACKNOWLEDGES AND CONFIRMS THAT THERE ARE NO EXISTING DEFENSES, CLAIMS,
COUNTERCLAIMS OR RIGHTS OF RECOUPMENT OR SET-OFF AGAINST THE AGENT OR ANY LENDER
IN CONNECTION WITH THE OBLIGATIONS OWED TO THE AGENT OR THE LENDERS UNDER THE
CREDIT AGREEMENT OR ANY LOAN DOCUMENT OR IN CONNECTION WITH THE NEGOTIATION,
PREPARATION, EXECUTION, PERFORMANCE OR ANY OTHER MATTERS RELATING TO THE CREDIT
AGREEMENT, THE LOAN DOCUMENTS OR THIS AGREEMENT.
(B)
EACH OF THE BORROWERS AND THE GUARANTOR
FURTHER ACKNOWLEDGES AND AGREES THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY
SET FORTH IN THIS AGREEMENT, THE AGENT AND THE LENDERS DO NOT HAVE, NOR SHALL
HAVE, AN OBLIGATION OTHER THAN AS SPECIFICALLY AND EXPRESSLY SET FORTH IN THIS
AGREEMENT TO:
(I) AMEND THE CREDIT AGREEMENT OR ANY LOAN DOCUMENT OR OTHERWISE
FURTHER RESTRUCTURE THE OBLIGATIONS; (II) MAKE ANY FURTHER LOANS, ADVANCES OR
EXTENSION OF CREDIT TO OR FOR THE BENEFIT OF THE BORROWERS OR ANY GUARANTOR,
(III) EXTEND THE FORBEARANCE PERIOD; (IV) REFRAIN FROM TERMINATING THE
FORBEARANCE PERIOD UPON THE OCCURRENCE OF ANY TERMINATING EVENT OR (V) ENTER
INTO ANY OTHER INSTRUMENTS, AGREEMENTS OR DOCUMENTS REGARDING ANY OF THE SAME
WITH THE BORROWERS OR ANY GUARANTOR, AND THAT NEITHER THE LENDERS NOR ANY OF
THEIR RESPECTIVE REPRESENTATIVES HAVE MADE ANY AGREEMENTS WITH, OR COMMITMENTS
OR REPRESENTATIONS OR WARRANTIES TO, THE BORROWERS OR ANY GUARANTOR (EITHER IN
WRITING OR ORALLY), OTHER THAN AS EXPRESSLY STATED IN THIS AGREEMENT.
(C)
EACH OF THE BORROWERS AND THE GUARANTOR
UNDERSTANDS AND FURTHER AGREES THAT THE LENDERS ARE RELYING ON ALL TERMS,
COVENANTS, CONDITIONS, WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE LENDERS' RIGHT TO TERMINATE THE
FORBEARANCE PERIOD AT ANY TIME UPON THE OCCURRENCE OF A TERMINATING EVENT, AS A
MATERIAL INDUCEMENT TO THE LENDERS TO ENTER INTO THIS AGREEMENT.
11.
CUMULATIVE REMEDIES; NON-WAIVER.
(A)
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
IN THIS AGREEMENT, THE RIGHTS, POWERS, AUTHORITIES, REMEDIES, INTERESTS AND
BENEFITS CONFERRED UPON THE AGENT AND THE LENDERS BY AND AS PROVIDED IN THIS
AGREEMENT ARE INTENDED TO SUPPLEMENT,