BORROWERS SHALL TIMELY PROCEED TO DEFEND ANY SUCH SUIT
OR ACTION THROUGH COUNSEL REASONABLY ACCEPTABLE TO LENDERS.
IN THE EVENT THAT
LENDERS DETERMINE IN GOOD FAITH THAT THE SUBJECT ACTION, IF DECIDED ADVERSELY TO
LENDERS' INTEREST, WOULD HAVE A MATERIAL ADVERSE EFFECT UPON ANY LENDER, LENDERS
SHALL ALSO HAVE THE RIGHT, AT THE EXPENSE OF BORROWERS, TO PARTICIPATE IN OR, AT
LENDERS' ELECTION, ASSUME THE DEFENSE OR PROSECUTION OF SUCH SUIT, ACTION, OR
PROCEEDING, AND IN THE LATTER EVENT BORROWERS MAY EMPLOY COUNSEL AND PARTICIPATE
THEREIN.
AGENT SHALL HAVE THE RIGHT TO ADJUST, SETTLE, OR COMPROMISE ANY CLAIM,
SUIT, OR JUDGMENT AFTER NOTICE TO BORROWERS, UNLESS BORROWERS DESIRE TO LITIGATE
SUCH CLAIM, DEFEND SUCH SUIT, OR APPEAL SUCH JUDGMENT AND SIMULTANEOUSLY
THEREWITH DEPOSIT WITH AGENT COLLATERAL SECURITY SUFFICIENT TO PAY ANY JUDGMENT
RENDERED, WITH INTEREST, COSTS, LEGAL FEES AND EXPENSES; AND THE RIGHT OF
LENDERS TO INDEMNIFICATION UNDER THIS AGREEMENT SHALL EXTEND TO ANY MONEY PAID
BY LENDERS IN SETTLEMENT OR COMPROMISE OF ANY SUCH CLAIMS, SUITS, AND JUDGMENTS
IN GOOD FAITH, AFTER NOTICE TO BORROWERS.
78
13.15.4
IF ANY SUIT, ACTION, OR OTHER PROCEEDING IS BROUGHT BY LENDERS
AGAINST BORROWERS FOR BREACH OF BORROWERS' COVENANT OF INDEMNITY HEREIN
CONTAINED, SEPARATE SUITS MAY BE BROUGHT AS CAUSES OF ACTION ACCRUE, WITHOUT
PREJUDICE OR BAR TO THE BRINGING OF SUBSEQUENT SUITS ON ANY OTHER CAUSE OR
CAUSES OF ACTION, WHETHER THERETOFORE OR THEREAFTER ACCRUING.
13.15.5
THE OBLIGATIONS OF BORROWERS AND GUARANTOR UNDER THIS SECTION 13.15
SHALL SURVIVE THE REPAYMENT OF THE DEBT AND TERMINATION OF THIS AGREEMENT, AND
SHALL CONTINUE IN FULL FORCE AND EFFECT SO LONG AS THE POSSIBILITY OF SUCH
CLAIM, ACTION OR SUIT EXISTS.
IF, AND TO THE EXTENT THAT THE OBLIGATIONS OF
BORROWERS OR GUARANTOR UNDER THIS SECTION 13.15 ARE UNENFORCEABLE FOR ANY
REASON, BORROWERS AND GUARANTOR HEREBY AGREE TO MAKE THE MAXIMUM CONTRIBUTION TO
THE PAYMENT IN SATISFACTION OF SUCH OBLIGATIONS WHICH IS PERMISSIBLE UNDER
APPLICABLE LAW.
13.16
Relationship of Parties.
It is hereby acknowledged by
Lenders and Borrowers that the relationship between them created hereby and by
the other Loan Documents is that of creditor and debtor and is not intended to
be and shall not in any way be construed to be that of a partnership, a joint
venture, or principal and agent.
It is hereby further acknowledged that Agent's
disbursement of any Loan proceeds or Letter of Credit Advance to anyone other
than a Borrower shall not be deemed to make Agent or Lenders a partner, joint
venturer, or principal or agent of Borrowers, but rather shall be deemed to be
solely for the purpose of protecting Lenders' security for the Indebtedness.
The relationship between Agent and the Lenders is not intended by the parties to
create, and shall not create, any trust, joint venture or partnership relation
between or among them.
13.17
Joint and Several Liability.
The liability of each
Person that is, or by reason of its execution of a Joinder hereafter becomes, a
Borrower for (i) the performance of