BY ANY PARTY OF ITS RESPECTIVE RIGHTS HEREUNDER OR IN ANY WAY RELATING
TO ANY LOAN, ANY NOTE OR ANY PROPERTY (INCLUDING ANY ACTION TO RESCIND OR CANCEL
THIS AGREEMENT, AND ANY CLAIM OR DEFENSE ASSERTING THAT THIS AGREEMENT WAS
FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A
MATERIAL INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT AND TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREUNDER.
12.18 Time of the Essence. For all payments to be made and all obligations to be
performed under the Note Documents, time is of the essence.
12.19 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER NOTE DOCUMENTS EMBODY THE
FINAL, ENTIRE AGREEMENT BETWEEN THE COMPANY, THE ADMINISTRATIVE AGENT AND THE
HOLDERS AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS
AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER
HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS BETWEEN ANY PARTIES
HERETO. EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THERE ARE NO ORAL
AGREEMENTS BETWEEN THE COMPANY AND ANY OTHER PARTY HERETO. EACH OF THE PARTIES
HERETO UNDERSTANDS AND AGREES THAT ORAL AGREEMENTS AND ORAL COMMITMENTS TO LOAN
MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE. THIS AGREEMENT AND THE OTHER NOTE DOCUMENTS REPRESENT THE ENTIRE
UNDERSTANDING OF THE ADMINISTRATIVE AGENT, THE HOLDERS AND THE COMPANY WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
12.20 Amendment and Restatement; Continuation. This Agreement amends and
restates in its entirety the Existing Note Agreement, provided that (a) nothing
herein shall impair or adversely affect the continuation of the liability and
obligations of the Company under the Existing Note Agreement, as amended hereby,
and (b) except as otherwise provided in Section 2.01(a)(ii), nothing herein
shall be construed to constitute payment of, or impair, limit, cancel or
extinguish, or constitute a novation in respect of, the Indebtedness and other
obligations and liabilities of the Company under the Existing Note Agreement, as
amended hereby.
12.21 Departing Holder. The Departing Holder hereby consents to the amendment
and restatement of the Existing Note Agreement by this Agreement. The parties
hereto hereby acknowledge and agree that (a) the Departing Holder is entering
into this Agreement solely for purposes of Sections 2.01(a)(i) and 2.01(a)(ii)
and this Section 12.21 and shall not be deemed to be bound by any term or
provision of this Agreement other than Sections 2.01(a)(i) and 2.01(a)(ii) and
this Section 12.21, (b) in no event shall the Departing Holder constitute a
Holder under or for purposes of this Agreement or any other Note Document and
(c) all obligations of the Company under the Existing Note Agreement which by
the terms thereof survive the repayment, satisfaction and discharge of the
Obligations (as defined in the
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Existing Note Agreement) shall survive the repayment by the Company of the
Existing Term Loan of the Departing Holder and continue in effect for the
benefit of