UNENFORCEABLE BECAUSE IT VIOLATES ANY LAW OR PUBLIC POLICY, BORROWERS AND
GUARANTORS SHALL PAY THE MAXIMUM PORTION WHICH IT IS PERMITTED TO PAY UNDER
APPLICABLE LAW TO ADMINISTRATIVE AGENT AND LENDERS IN SATISFACTION OF
INDEMNIFIED MATTERS UNDER THIS SECTION.
TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NO BORROWER OR GUARANTOR SHALL ASSERT, AND EACH BORROWER AND GUARANTOR
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 OF THE OTHER FINANCING AGREEMENTS OR ANY UNDERTAKING OR
TRANSACTION CONTEMPLATED HEREBY.
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE
PAYABLE UPON DEMAND. THE FOREGOING INDEMNITY SHALL SURVIVE THE PAYMENT OF THE
OBLIGATIONS AND THE TERMINATION OR NON-RENEWAL OF THIS AGREEMENT.
SECTION 12.
THE AGENT
12.1
APPOINTMENT, POWERS AND IMMUNITIES.
EACH LENDER IRREVOCABLY
DESIGNATES, APPOINTS AND AUTHORIZES WELLS TO ACT AS ADMINISTRATIVE AGENT
HEREUNDER AND UNDER THE OTHER FINANCING AGREEMENTS WITH SUCH POWERS AS ARE
SPECIFICALLY DELEGATED TO ADMINISTRATIVE AGENT BY THE TERMS OF THIS AGREEMENT
AND OF THE OTHER FINANCING AGREEMENTS, TOGETHER WITH SUCH OTHER POWERS AS ARE
REASONABLY INCIDENTAL THERETO.
ADMINISTRATIVE AGENT (A) SHALL HAVE NO DUTIES OR
RESPONSIBILITIES EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE
OTHER FINANCING AGREEMENTS, AND SHALL NOT BY REASON OF THIS AGREEMENT OR ANY
OTHER FINANCING AGREEMENT BE A TRUSTEE OR FIDUCIARY FOR ANY LENDER; (B) SHALL
NOT BE RESPONSIBLE TO LENDERS FOR ANY RECITALS, STATEMENTS, REPRESENTATIONS OR
WARRANTIES CONTAINED IN THIS AGREEMENT OR IN ANY OF THE OTHER FINANCING
AGREEMENTS, OR IN ANY CERTIFICATE OR OTHER DOCUMENT REFERRED TO OR PROVIDED FOR
IN, OR RECEIVED BY ANY OF THEM UNDER, THIS AGREEMENT OR ANY OTHER FINANCING
AGREEMENT, OR FOR THE VALUE, VALIDITY, EFFECTIVENESS, GENUINENESS,
ENFORCEABILITY OR SUFFICIENCY OF THIS AGREEMENT OR ANY OTHER FINANCING AGREEMENT
OR ANY OTHER DOCUMENT REFERRED TO OR PROVIDED FOR HEREIN OR THEREIN OR FOR ANY
FAILURE BY ANY BORROWER OR ANY OBLIGOR OR ANY OTHER PERSON TO PERFORM ANY OF ITS
OBLIGATIONS HEREUNDER OR THEREUNDER; AND (C) SHALL NOT BE RESPONSIBLE TO LENDERS
FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY IT HEREUNDER OR UNDER ANY OTHER
FINANCING AGREEMENT OR UNDER ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO OR
PROVIDED FOR HEREIN OR THEREIN OR IN CONNECTION HEREWITH OR THEREWITH, EXCEPT
FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS DETERMINED BY A FINAL
NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION.
WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING OR ANY OF THE OTHER RIGHTS AND DUTIES OF
ADMINISTRATIVE AGENT PROVIDED FOR HEREIN OR IN THE OTHER FINANCING AGREEMENTS,
EACH LENDER HEREBY SPECIFICALLY IRREVOCABLY AUTHORIZES AND DIRECTS
ADMINISTRATIVE AGENT TO ENTER INTO, IF APPLICABLE, THE QUALIFIED DEBT
INTERCREDITOR AGREEMENT ON BEHALF OF SUCH LENDER AND ACKNOWLEDGES AND AGREES
THAT SUCH LENDER SHALL BE BOUND THEREBY AND SUBJECT TO ALL OF THE TERMS AND
CONDITIONS THEREOF, DEEMED TO MAKE ALL REPRESENTATIONS AND WARRANTIES MADE BY