not
expressly waived or impair any right 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EXISTING CREDIT AGREEMENT SUPERSEDED.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.
THE LENDERS' INTERESTS IN SUCH LOANS SHALL BE
REALLOCATED ON THE EFFECTIVE DATE IN ACCORDANCE WITH EACH LENDER'S APPLICABLE
COMMITMENT PERCENTAGE IN ORDER THAT, AFTER GIVING EFFECT THERETO, THE LENDERS
SHALL HAVE OUTSTANDING LOANS REPRESENTING THEIR
75
portion of the Total Commitment, as described on Schedule 1.2, and the Lenders
shall make appropriate payments to each other in order to accomplish such
reallocation.
In connection therewith, the Borrower shall compensate and
indemnify the Lenders as provided in §4.8 of the Existing Credit Agreement as if
such payments by the Lenders to each other were prepayments by the Borrower of
the "Loans" (as defined in the Existing Credit Agreement) outstanding under the
Existing Credit