ACCOUNT OF THE APPLICABLE BANK PARTY'S
GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR VIOLATION OF THE TERMS OF THIS
AGREEMENT.
IF AND TO THE EXTENT THAT THE FOREGOING UNDERTAKING MAY BE
UNENFORCEABLE FOR ANY REASON, THE COMPANY HEREBY AGREES TO MAKE THE MAXIMUM
CONTRIBUTION TO THE PAYMENT AND SATISFACTION OF EACH OF THE INDEMNIFIED
LIABILITIES WHICH IS PERMISSIBLE UNDER APPLICABLE LAW.
ALL OBLIGATIONS PROVIDED
FOR IN THIS SECTION 13.13 SHALL SURVIVE REPAYMENT OF THE LOANS, CANCELLATION OF
THE NOTE, ANY FORECLOSURE UNDER, OR ANY MODIFICATION, RELEASE OR DISCHARGE OF,
ANY OR ALL OF THE COLLATERAL DOCUMENTS AND TERMINATION OF THIS AGREEMENT.
13.13
NONLIABILITY OF LENDERS.
THE RELATIONSHIP BETWEEN THE COMPANY ON
THE ONE HAND AND THE BANK ON THE OTHER HAND SHALL BE SOLELY THAT OF BORROWER AND
LENDER.
THE BANK SHALL HAVE NO FIDUCIARY RESPONSIBILITY TO THE COMPANY.
THE
BANK UNDERTAKES NO RESPONSIBILITY TO THE COMPANY TO REVIEW OR INFORM THE COMPANY
OR ANY MATTER IN CONNECTION WITH ANY PHASE OF THE COMPANY'S BUSINESS OR
OPERATIONS.
THE COMPANY AGREES THAT THE BANK SHALL HAVE NO LIABILITY TO THE
COMPANY (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY
THE COMPANY IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO THE
TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THE LOAN
DOCUMENTS, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH,
UNLESS IT IS DETERMINED IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION THAT SUCH LOSSES RESULTED FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE PARTY FROM WHICH RECOVERY IS SOUGHT.
THE BANK SHALL
HAVE NO LIABILITY WITH RESPECT TO, AND THE COMPANY HEREBY WAIVES, RELEASES AND
AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES SUFFERED
BY THE COMPANY IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO THE
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
13.14
FORUM SELECTION AND CONSENT TO JURISDICTION.
ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
PROPERTY MAY BE BROUGHT, AT THE BANK'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
THE COMPANY HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE.
THE COMPANY
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
ILLINOIS.
THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION
37
BROUGHT IN ANY SUCH