MODIFIED EXCEPT PURSUANT TO AN AGREEMENT OR AGREEMENTS IN WRITING
ENTERED INTO AMONG THE BORROWER, THE AGENTS AND THE GUARANTORS WITH RESPECT TO
WHICH SUCH WAIVER, AMENDMENT OR MODIFICATION IS TO APPLY.
SECTION 12.
GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 13.
NOTICES. ALL COMMUNICATIONS AND NOTICES HEREUNDER SHALL
(EXCEPT AS OTHERWISE EXPRESSLY PERMITTED HEREIN) BE IN WRITING AND GIVEN AS
PROVIDED IN SECTION 9.01 OF THE CREDIT AGREEMENT. ALL COMMUNICATIONS AND NOTICES
HEREUNDER TO ANY GUARANTOR SHALL BE GIVEN TO IT AT ITS ADDRESS OR TELECOPY
NUMBER SET FORTH ON SCHEDULE I, WITH A COPY TO BORROWER.
SECTION 14.
SURVIVAL OF AGREEMENT; SEVERABILITY. (A)
ALL COVENANTS,
AGREEMENTS, REPRESENTATIONS AND WARRANTIES MADE BY ANY GUARANTOR HEREIN AND IN
THE CERTIFICATES OR OTHER INSTRUMENTS PREPARED OR DELIVERED IN CONNECTION WITH
OR PURSUANT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE CONSIDERED TO
HAVE BEEN RELIED UPON BY THE AGENTS AND THE OTHER SECURED PARTIES AND SHALL
SURVIVE THE MAKING BY THE LENDERS OF THE LOANS AND THE LENDERS' ISSUANCE OF AND
PARTICIPATIONS IN LETTERS OF CREDIT, REGARDLESS OF ANY INVESTIGATION MADE BY THE
SECURED PARTIES OR ON THEIR BEHALF, AND SHALL CONTINUE IN FULL FORCE AND EFFECT
UNTIL THIS AGREEMENT SHALL TERMINATE.
4
(B)
IN THE EVENT ANY ONE OR MORE OF THE PROVISIONS CONTAINED IN THIS
AGREEMENT SHOULD BE HELD INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT, THE
VALIDITY, LEGALITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS CONTAINED
HEREIN 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 NEGOTIATIONS TO REPLACE
THE INVALID, ILLEGAL OR UNENFORCEABLE PROVISIONS WITH VALID PROVISIONS THE
ECONOMIC EFFECT OF WHICH COMES AS CLOSE AS POSSIBLE TO THAT OF THE INVALID,
ILLEGAL OR UNENFORCEABLE PROVISIONS.
SECTION 15.
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE
COUNTERPARTS, EACH OF WHICH SHALL CONSTITUTE AN ORIGINAL BUT ALL OF WHICH WHEN
TAKEN TOGETHER SHALL CONSTITUTE A SINGLE CONTRACT (SUBJECT TO SECTION 10) AND
SHALL BECOME EFFECTIVE AS PROVIDED IN SECTION 10. DELIVERY OF AN EXECUTED
SIGNATURE PAGE TO THIS AGREEMENT BY FACSIMILE TRANSMISSION SHALL BE EFFECTIVE AS
DELIVERY OF A MANUALLY EXECUTED COUNTERPART HEREOF. IT IS UNDERSTOOD AND AGREED
AMONG THE PARTIES THAT THIS AGREEMENT SHALL CREATE SEPARATE GUARANTEES IN FAVOR
OF EACH OF THE TERM LENDERS AND THE REVOLVING LENDERS, AND THAT ANY
DETERMINATION BY ANY COURT WITH JURISDICTION THAT THE GUARANTEE IN FAVOR OF
EITHER GROUP OF LENDERS IS INVALID FOR ANY REASON SHALL NOT IN AND OF ITSELF
INVALIDATE THE GUARANTEE WITH RESPECT TO ANY OTHER BENEFICIARY HEREUNDER.
SECTION 16.
RULES OF INTERPRETATION; HEADINGS. (A)
THE RULES OF
INTERPRETATION SPECIFIED IN SECTION 1.03 OF THE CREDIT AGREEMENT SHALL BE
APPLICABLE TO THIS AGREEMENT.
(B)
SECTION HEADINGS USED HEREIN ARE