AS DETERMINED BY A COURT OF COMPETENT JURISDICTION. WITHOUT LIMITING ANY
PROVISIONS OF THIS AGREEMENT OR OF ANY OTHER LOAN DOCUMENT, IT IS THE EXPRESS
INTENTION OF THE PARTIES HERETO THAT EACH INDEMNITEE SHALL BE INDEMNIFIED FROM
AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND
11
DISBURSEMENTS (INCLUDING THE FEES, CHARGES AND DISBURSEMENTS OF COUNSEL) ARISING
OUT OF OR CAUSED IN WHOLE OR IN PART BY THE ORDINARY NEGLIGENCE OF ANY
INDEMNITEE. WITHOUT LIMITING THE FOREGOING, AND TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH COMPANY AGREES NOT TO ASSERT AND TO CAUSE ITS SUBSIDIARIES
NOT TO ASSERT, AND HEREBY WAIVES AND AGREES TO CAUSE ITS SUBSIDIARIES TO SO
WAIVE, ALL RIGHTS FOR CONTRIBUTION OR ANY OTHER RIGHTS OF RECOVERY WITH RESPECT
TO ALL CLAIMS, DEMANDS, PENALTIES, FINES, LIABILITIES, SETTLEMENTS, DAMAGES,
COSTS AND EXPENSES OF WHATEVER KIND OR NATURE, UNDER OR RELATED TO ENVIRONMENTAL
LAWS, THAT ANY OF THEM MIGHT HAVE BY STATUTE OR OTHERWISE AGAINST ANY
INDEMNITEE.
(c) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH COMPANY SHALL NOT
ASSERT, AND EACH COMPANY HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE, ON ANY
THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES
(AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR
AS A RESULT OF, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR
INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,
ANY TERM LOAN OR THE USE OF THE PROCEEDS THEREOF. NO INDEMNITEE SHALL BE LIABLE
FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY INFORMATION
OR OTHER MATERIALS DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS, ELECTRONIC OR
OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(d) ALL AMOUNTS DUE UNDER THIS SECTION 13.11 SHALL BE PAYABLE PROMPTLY/NOT LATER
THAN TEN (10) DAYS AFTER WRITTEN DEMAND THEREFOR. THE AGREEMENTS IN THIS SECTION
13.11 SHALL SURVIVE REPAYMENT OF THE TERM LOANS AND ALL OTHER AMOUNTS PAYABLE
HEREUNDER.
13.12 Each Company hereby acknowledges and agrees that:
(a) it has been advised by counsel in the negotiation, execution and delivery of
this Agreement and the other Loan Documents;
(b) the Lender has no fiduciary relationship with or duty to any Company arising
out of or in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Lender, on the one hand, and the
12
Borrowers 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
Lender, the Borrowers and the Guarantors.
13.13 Each Company hereby acknowledges and agrees that in connection with all
aspects of each transaction contemplated by the Loan Documents: (a) the Term
Loans provided for under this Agreement and any related transactions, services