THAT SUCH LOSSES RESULTED FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY FROM WHICH RECOVERY IS SOUGHT.
NO
LENDER PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF
ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR
INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, NOR SHALL
ANY LENDER PARTY HAVE ANY LIABILITY WITH RESPECT TO, AND THE BORROWER
REPRESENTATIVE ON BEHALF OF ITSELF AND EACH OTHER LOAN PARTY, HEREBY WAIVES,
RELEASES AND AGREES NOT TO SUE FOR ANY SPECIAL, PUNITIVE, INDIRECT OR
CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER
BEFORE OR AFTER THE CLOSING DATE).
THE LOAN PARTIES ACKNOWLEDGE THAT THEY HAVE
BEEN ADVISED BY COUNSEL IN THE NEGOTIATION, EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE OTHER
133
LOAN DOCUMENTS TO WHICH IT IS A PARTY.
NO JOINT VENTURE IS CREATED HEREBY OR BY
THE OTHER LOAN DOCUMENTS OR OTHERWISE EXISTS BY VIRTUE OF THE TRANSACTIONS
CONTEMPLATED HEREBY AMONG THE AGENTS, LENDERS OR AMONG THE LOAN PARTIES AND THE
LENDERS AND THE AGENTS.
ARTICLE XIII
APPOINTMENT OF THE BORROWER REPRESENTATIVE;
JOINT AND SEVERAL LIABILITY OF THE BORROWERS
SECTION 13.01
BORROWER REPRESENTATIVE.
EACH BORROWER HEREBY
IRREVOCABLY APPOINTS THE BORROWER REPRESENTATIVE, AS THE AGENT FOR SUCH BORROWER
ON ITS BEHALF, TO (I) REQUEST LOANS FROM THE LENDERS, (II) REQUEST L/C ISSUER TO
ISSUE LETTERS OF CREDIT, (III) TO GIVE AND RECEIVE NOTICES UNDER THE LOAN
DOCUMENTS AND (IV) TAKE ALL OTHER ACTION WHICH THE BORROWER REPRESENTATIVE OR
THE BORROWERS ARE PERMITTED OR REQUIRED TO TAKE UNDER THIS AGREEMENT.
SECTION 13.02
JOINT AND SEVERAL LIABILITY OF BORROWERS.
(A)
JOINT AND SEVERAL LIABILITY.
EACH BORROWER HEREBY AGREES THAT SUCH
BORROWER IS JOINTLY AND SEVERALLY LIABLE FOR, AND HEREBY ABSOLUTELY AND
UNCONDITIONALLY GUARANTEES TO THE ADMINISTRATIVE AGENT AND LENDERS AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, THE FULL AND PROMPT PAYMENT (WHETHER AT
STATED MATURITY, BY ACCELERATION OR OTHERWISE) AND PERFORMANCE OF, ALL
OBLIGATIONS OWED OR HEREAFTER OWING TO THE ADMINISTRATIVE AGENT AND LENDERS BY
EACH OTHER BORROWER.
EACH BORROWER AGREES THAT ITS GUARANTY OBLIGATION
HEREUNDER IS A CONTINUING GUARANTY OF PAYMENT AND PERFORMANCE AND NOT OF
COLLECTION, THAT ITS OBLIGATIONS UNDER THIS SECTION 13.02 SHALL NOT BE
DISCHARGED UNTIL PAYMENT AND PERFORMANCE, IN FULL, OF THE OBLIGATIONS HAS
OCCURRED, AND THAT ITS OBLIGATIONS UNDER THIS SECTION 13.02 SHALL BE ABSOLUTE,
UNCONDITIONAL AND IRREVOCABLE, IRRESPECTIVE OF, AND UNAFFECTED BY, (I) THE
GENUINENESS, VALIDITY, REGULARITY, ENFORCEABILITY OR ANY FUTURE AMENDMENT OF, OR
CHANGE IN, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY OTHER AGREEMENT,
DOCUMENT OR INSTRUMENT TO WHICH ANY BORROWER IS OR MAY BECOME A PARTY; (II) THE
ABSENCE OF ANY ACTION TO ENFORCE THIS AGREEMENT (INCLUDING THIS SECTION 13.02)
OR ANY OTHER LOAN DOCUMENT OR THE WAIVER OR CONSENT BY THE ADMINISTRATIVE AGENT
AND LENDERS WITH RESPECT TO ANY OF THE PROVISIONS THEREOF; (III) THE INSOLVENCY
OF ANY BORROWER OR SUBSIDIARY; AND (IV) ANY OTHER ACTION OR