the date of
repayment, shall have been received by such Lender.
SECTION 9.18.
Cumulative Effect; Conflict of Terms; Entire
Agreement; Credit Inquiries; No Advisory or Fiduciary Responsibility.
Each Loan
Party hereby agrees and confirms that, notwithstanding the amendment and
restatement of the Existing Credit Agreement pursuant to this Agreement:
149
(A)
THE PROVISIONS OF THE LOAN DOCUMENTS ARE CUMULATIVE.
THE PARTIES
ACKNOWLEDGE THAT THE LOAN DOCUMENTS MAY USE SEVERAL LIMITATIONS, TESTS OR
MEASUREMENTS TO REGULATE SIMILAR MATTERS, AND THEY AGREE THAT THESE ARE
CUMULATIVE AND THAT EACH MUST BE PERFORMED AS PROVIDED.
EXCEPT AS OTHERWISE
PROVIDED IN ANOTHER LOAN DOCUMENT (BY SPECIFIC REFERENCE TO THE APPLICABLE
PROVISION OF THIS AGREEMENT), IF ANY PROVISION CONTAINED HEREIN IS IN DIRECT
CONFLICT WITH ANY PROVISION IN ANOTHER LOAN DOCUMENT (OTHER THAN THE
INTERCREDITOR AGREEMENT), THE PROVISION HEREIN SHALL GOVERN AND CONTROL.
(B)
TIME IS OF THE ESSENCE OF THE LOAN DOCUMENTS.
THE LOAN DOCUMENTS
CONSTITUTE THE ENTIRE CONTRACT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER
HEREOF, AND SUPERSEDE ANY AND ALL PREVIOUS AGREEMENTS AND UNDERSTANDINGS, ORAL
OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF.
(C)
EACH LOAN PARTY HEREBY AUTHORIZES THE AGENT AND THE LENDERS (BUT
THEY SHALL HAVE NO OBLIGATION) TO RESPOND TO USUAL AND CUSTOMARY CREDIT
INQUIRIES FROM THIRD PARTIES CONCERNING ANY BORROWER OR SUBSIDIARY.
(D)
IN CONNECTION WITH ALL ASPECTS OF EACH TRANSACTION CONTEMPLATED BY
ANY LOAN DOCUMENT, THE BORROWERS ACKNOWLEDGE AND AGREE THAT (A)(I) THIS CREDIT
FACILITY AND ANY RELATED ARRANGING OR OTHER SERVICES BY THE AGENT, ANY
CO-COLLATERAL AGENT, ANY LENDER, ANY OF THEIR AFFILIATES OR ANY ARRANGER ARE
ARM'S-LENGTH COMMERCIAL TRANSACTIONS BETWEEN THE BORROWERS AND SUCH PERSON;
(II) THE BORROWERS HAVE CONSULTED THEIR OWN LEGAL, ACCOUNTING, REGULATORY AND
TAX ADVISORS TO THE EXTENT THEY HAVE DEEMED APPROPRIATE; AND (III) THE BORROWERS
ARE CAPABLE OF EVALUATING AND UNDERSTANDING, AND DO UNDERSTAND AND ACCEPT, THE
TERMS, RISKS AND CONDITIONS OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN
DOCUMENTS; (B) EACH OF THE AGENT, THE CO-COLLATERAL AGENTS, THE LENDERS, THEIR
AFFILIATES AND ANY ARRANGER IS AND HAS BEEN ACTING SOLELY AS A PRINCIPAL IN
CONNECTION WITH THIS CREDIT FACILITY, IS NOT THE FINANCIAL ADVISOR, AGENT OR
FIDUCIARY FOR THE BORROWERS, ANY OF THEIR AFFILIATES OR ANY OTHER PERSON, AND
HAS NO OBLIGATION WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THE LOAN
DOCUMENTS EXCEPT AS EXPRESSLY SET FORTH THEREIN; AND (C) THE AGENT, THE
CO-COLLATERAL AGENTS, LENDERS, THEIR AFFILIATES AND ANY ARRANGER MAY BE ENGAGED
IN A BROAD RANGE OF TRANSACTIONS THAT INVOLVE INTERESTS THAT DIFFER FROM THOSE
OF THE BORROWERS AND THEIR AFFILIATES, AND HAVE NO OBLIGATION TO DISCLOSE ANY OF
SUCH INTERESTS TO THE BORROWERS OR THEIR AFFILIATES.
TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, EACH BORROWER HEREBY WAIVES AND RELEASES ANY CLAIMS
THAT IT MAY HAVE AGAINST THE AGENT, THE CO-COLLATERAL AGENTS, THE LENDERS, THEIR
AFFILIATES AND ANY ARRANGER WITH RESPECT TO ANY BREACH OR ALLEGED BREACH OF
AGENCY OR FIDUCIARY DUTY IN CONNECTION WITH ANY ASPECT OF ANY TRANSACTION
CONTEMPLATED BY A LOAN DOCUMENT.
SECTION