INCLUDES ALL SPECIAL,
CONSEQUENTIAL, EXEMPLARY, OR
88
PUNITIVE DAMAGES (REGARDLESS OF HOW NAMED), BUT DOES NOT INCLUDE ANY PAYMENTS OR
FUNDS WHICH ANY PARTY HERETO HAS EXPRESSLY PROMISED TO PAY OR DELIVER TO ANY
OTHER PARTY HERETO.
11.22
Intercreditor Agreement; Collateral Trust
Agreement.
Each Lender (a) hereby agrees that it will be bound by and take no
actions contrary to the Intercreditor Agreement or the Collateral Trust
Agreement and (b) hereby irrevocably authorizes and instructs the Administrative
Agent to enter into and perform the Intercreditor Agreement and the Collateral
Trust Agreement on its behalf.
11.23
USA PATRIOT ACT.
EACH LENDER HEREBY NOTIFIES EACH
LOAN PARTY THAT PURSUANT TO THE REQUIREMENTS OF THE USA PATRIOT ACT (TITLE III
OF PUB. L. 107-56 (SIGNED INTO LAW OCTOBER 26, 2001)), IT IS REQUIRED TO OBTAIN,
VERIFY AND RECORD INFORMATION THAT IDENTIFIES EACH LOAN PARTY, WHICH INFORMATION
INCLUDES THE NAME AND ADDRESS OF SUCH LOAN PARTY AND OTHER INFORMATION THAT WILL
ALLOW SUCH LENDER TO IDENTIFY SUCH LOAN PARTY IN ACCORDANCE WITH SAID ACT.
11.24
Acknowledgments.
Each of the Company and each
Guarantor hereby acknowledges that:
(A)
IT HAS BEEN ADVISED BY COUNSEL IN THE NEGOTIATION, EXECUTION AND
DELIVERY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS;
(B)
NEITHER THE ADMINISTRATIVE AGENT NOR THE OTHER AGENTS NOR ANY
LENDER HAS ANY FIDUCIARY RELATIONSHIP WITH OR DUTY TO THE COMPANY OR ANY
GUARANTOR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS, AND THE RELATIONSHIP BETWEEN THE ADMINISTRATIVE AGENT, THE
OTHER AGENTS AND THE LENDERS, ON ONE HAND, AND THE COMPANY AND THE GUARANTORS,
ON THE OTHER HAND, IN CONNECTION HEREWITH OR THEREWITH IS SOLELY THAT OF DEBTOR
AND CREDITOR; AND
(C)
NO JOINT VENTURE IS CREATED HEREBY OR BY THE OTHER LOAN DOCUMENTS
OR OTHERWISE EXISTS BY VIRTUE OF THE TRANSACTIONS CONTEMPLATED HEREBY AMONG THE
ADMINISTRATIVE AGENT, THE OTHER AGENTS AND THE LENDERS OR AMONG THE COMPANY AND
THE GUARANTORS AND THE LENDERS.
11.25
Survival of Representations and Warranties.
All
representations and warranties made herein, in the other Loan Documents and in
any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement,
the consummation of the TexCal Acquisition and the making of the Loans and other
extensions of credit hereunder.
11.26
Release of Collateral and Guarantee Obligations.
(A)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN
ANY OTHER LOAN DOCUMENT (OTHER THAN THE INTERCREDITOR AGREEMENT AND THE
COLLATERAL TRUST AGREEMENT), UPON REQUEST OF THE COMPANY IN CONNECTION WITH ANY
DISPOSITION OF PROPERTY PERMITTED BY THE LOAN DOCUMENTS, BUT SUBJECT TO THE
PROVISIONS OF THE INTERCREDITOR AGREEMENT AND THE COLLATERAL TRUST AGREEMENT,
UNLESS A TRIGGERING EVENT HAS OCCURRED AND IS CONTINUING, THE ADMINISTRATIVE
AGENT SHALL (WITHOUT NOTICE TO, OR VOTE OR CONSENT OF, ANY LENDER OR ANY
QUALIFIED DERIVATIVE
89
CONTRACT COUNTERPARTY) (I) ISSUE WRITTEN DIRECTIONS TO THE COLLATERAL TRUSTEE IN
ACCORDANCE WITH SECTION 7.02 OF THE COLLATERAL TRUST AGREEMENT AUTHORIZING THE
COLLATERAL TRUSTEE