UNDER OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED THEREBY OR
ASSOCIATED THEREWITH, BEFORE OR AFTER MATURITY; (B) WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
SUCH LITIGATION ANY "SPECIAL DAMAGES," AS DEFINED BELOW, (C) CERTIFIES THAT NO
PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND
(D) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS
SECTION 11.21.
AS USED IN THIS SECTION, "SPECIAL DAMAGES" INCLUDES ALL SPECIAL,
CONSEQUENTIAL, EXEMPLARY, OR 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) acknowledges that it has received a copy of the Intercreditor
Agreement, (b) acknowledges and agrees to Credit Suisse acting as the
Administrative Agent and the First Lien Credit Agent, (c) consents to the
subordination of Liens provided for in the Intercreditor Agreement, (d) hereby
agrees that it will be bound by and take no actions contrary to the
Intercreditor Agreement or the Collateral Trust Agreement and (e) hereby
irrevocably authorizes and instructs the Administrative Agent to enter into and
perform the Intercreditor Agreement and to be party to and perform the
Collateral Trust Agreement on its behalf.
11.23
USA PATRIOT Act.
Each Lender and the Administrative
Agent and the other Security Documents 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
or the Administrative Agent, as applicable, to identify such Loan Party in
accordance with said Act.
11.24
Acknowledgments.
Each of the Borrower 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;
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(B)
NEITHER THE ADMINISTRATIVE AGENT NOR THE
OTHER AGENTS NOR ANY LENDER HAS ANY FIDUCIARY RELATIONSHIP WITH OR DUTY TO THE
BORROWER 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 BORROWER 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