TO BE DELIVERED BY IT PURSUANT TO THIS SECTION.
EACH
LENDER AND ISSUING BANK AUTHORIZES AGENT TO SET OFF ANY AMOUNTS DUE TO AGENT
UNDER THIS SECTION AGAINST ANY AMOUNTS PAYABLE TO SUCH LENDER OR ISSUING BANK
UNDER ANY LOAN DOCUMENT.
5.9.4
IF A LENDER DETERMINES, IN ITS SOLE DISCRETION, THAT IT HAS
RECEIVED A REFUND OF ANY INDEMNIFIED TAXES OR OTHER TAXES AS TO WHICH IT HAS
BEEN INDEMNIFIED BY THE BORROWER OR WITH RESPECT TO WHICH THE BORROWER HAS PAID
ADDITIONAL AMOUNTS PURSUANT TO SECTION 5.8, SUCH LENDER SHALL PAY OVER SUCH
REFUND TO THE BORROWER (BUT ONLY TO THE EXTENT OF INDEMNITY PAYMENTS MADE, OR
ADDITIONAL AMOUNTS PAID, BY THE BORROWER UNDER THIS SECTION 5.8 WITH RESPECT TO
THE TAXES OR OTHER TAXES GIVING RISE TO SUCH REFUND), NET OF ALL OUT-OF-POCKET
EXPENSES OF SUCH LENDER AND WITHOUT INTEREST (OTHER THAN ANY INTEREST PAID BY
THE RELEVANT GOVERNMENTAL AUTHORITY WITH RESPECT TO SUCH REFUND), PROVIDED THAT
THE BORROWER, UPON THE REQUEST OF SUCH LENDER, AGREES TO REPAY THE AMOUNT PAID
OVER TO THE BORROWER (PLUS ANY PENALTIES, INTEREST OR OTHER CHARGES IMPOSED BY
THE RELEVANT GOVERNMENTAL AUTHORITY) TO SUCH LENDER IN THE EVENT SUCH LENDER IS
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REQUIRED TO REPAY SUCH REFUND TO SUCH GOVERNMENTAL AUTHORITY.
THIS
SECTION 5.9.4 SHALL NOT BE CONSTRUED TO REQUIRE ANY LENDER TO MAKE AVAILABLE ITS
TAX RETURNS (OR ANY OTHER INFORMATION RELATING TO ITS TAXES THAT IT DEEMS
CONFIDENTIAL) TO THE BORROWER OR ANY OTHER PERSON.
5.10
Nature and Extent of Each Borrower's Liability.
5.10.1
JOINT AND SEVERAL LIABILITY.
EACH BORROWER AGREES THAT
IT IS JOINTLY AND SEVERALLY LIABLE FOR, AND ABSOLUTELY AND UNCONDITIONALLY
GUARANTEES TO AGENT AND LENDERS THE PROMPT PAYMENT AND PERFORMANCE OF, ALL
OBLIGATIONS AND ALL AGREEMENTS UNDER THE LOAN DOCUMENTS.
EACH BORROWER AGREES
THAT ITS GUARANTY OBLIGATIONS HEREUNDER CONSTITUTE A CONTINUING GUARANTY OF
PAYMENT AND NOT OF COLLECTION, THAT SUCH OBLIGATIONS SHALL NOT BE DISCHARGED
UNTIL FULL PAYMENT OF THE OBLIGATIONS, AND THAT SUCH OBLIGATIONS ARE ABSOLUTE
AND UNCONDITIONAL, IRRESPECTIVE OF (A) THE GENUINENESS, VALIDITY, REGULARITY,
ENFORCEABILITY, SUBORDINATION OR ANY FUTURE MODIFICATION OF, OR CHANGE IN, ANY
OBLIGATIONS OR LOAN DOCUMENT, OR ANY OTHER DOCUMENT, INSTRUMENT OR AGREEMENT TO
WHICH ANY OBLIGOR IS OR MAY BECOME A PARTY OR BE BOUND; (B) THE ABSENCE OF ANY
ACTION TO ENFORCE THIS AGREEMENT (INCLUDING THIS SECTION) OR ANY OTHER LOAN
DOCUMENT, OR ANY WAIVER, CONSENT OR INDULGENCE OF ANY KIND BY AGENT OR ANY
LENDER WITH RESPECT THERETO; (C) THE EXISTENCE, VALUE OR CONDITION OF, OR
FAILURE TO PERFECT A LIEN OR TO PRESERVE RIGHTS AGAINST, ANY SECURITY OR
GUARANTY FOR THE OBLIGATIONS OR ANY ACTION, OR THE ABSENCE OF ANY ACTION, BY
AGENT OR ANY LENDER IN RESPECT THEREOF (INCLUDING THE RELEASE OF ANY SECURITY OR
GUARANTY); (D) THE INSOLVENCY OF ANY OBLIGOR; (E) ANY ELECTION BY AGENT OR ANY
LENDER IN AN INSOLVENCY PROCEEDING FOR THE APPLICATION OF SECTION 1111(B)(2) OF
THE BANKRUPTCY CODE; (F) ANY BORROWING OR GRANT OF A LIEN BY ANY OTHER BORROWER,