SPECIAL DAMAGES
AND GENERAL DAMAGES IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY OR ANY
EXERCISE BY ANY PARTY OF ITS RESPECTIVE RIGHTS HEREUNDER OR IN ANY WAY RELATING
TO ANY TERM LOAN, ANY NOTE OR ANY PROPERTY (INCLUDING ANY ACTION TO RESCIND OR
CANCEL THIS AGREEMENT, AND ANY CLAIM OR DEFENSE ASSERTING THAT THIS AGREEMENT
WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A
MATERIAL INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT AND TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREUNDER.
12.18
Time of the Essence. For all payments to be made and all obligations
to be performed under the Loan Documents, time is of the essence.
92
12.19
Limitation of Liability. The Administrative Agent and each Lender
hereby acknowledge and agree that no administrator of a Loan Party or FSEP nor
any incorporator, officer, manager, member, partner, shareholder, employee or
director of a Loan Party or FSEP or of any such administrator (each such Person,
a "Non-Recourse Party"), shall be liable to the Administrative Agent or any
Lender with respect to any liabilities, obligations, losses, damages, penalties,
claims, demands, actions, Judgments, suits, costs, expenses and/or disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at any
time be imposed on, incurred by or asserted against any such Non-Recourse Party
by the Administrative Agent or any Lender in any way relating to or arising out
of or in connection with this Agreement or any other Loan Document or the
Obligations of the Loan Parties hereunder or thereunder. The provisions of this
Section 12.19 shall survive the termination of this Agreement. For purposes of
clarity, the provisions of this Section 12.19 shall not in any manner be
interpreted (i) to limit the liability of any Person, including the Company, the
other Loan Parties or FSEP, under or in respect of the Obligations, this
Agreement and the other Loan Documents, other than solely those Persons who are
Non-Recourse Parties whose liability shall be limited only in accordance with
the express provisions hereof or (ii) to impose any liability on any Person
under or in connection with the Loan Documents that is not otherwise imposed on
or assumed by such Person under the Loan Documents.
12.20
ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS EMBODY
THE FINAL, ENTIRE AGREEMENT BETWEEN THE LOAN PARTIES, THE ADMINISTRATIVE AGENT
AND THE LENDERS AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS
BETWEEN ANY PARTIES HERETO. EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES
THERE ARE NO ORAL AGREEMENTS BETWEEN THE LOAN PARTIES AND ANY OTHER PARTY
HERETO. EACH OF THE PARTIES HERETO UNDERSTANDS AND AGREES THAT ORAL