available to the Lender on a nonconfidential basis from a source other
than any Company which to the Lender's knowledge is
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not prohibited from disclosing such information by any contractual, legal or
fiduciary obligation owed to any Company.
SECTION 9.14.
JOINT AND SEVERAL OBLIGATIONS.
(A)
BENEFITS.
THE COMPANIES ACKNOWLEDGE AND AGREE THAT THE LOANS WILL
DIRECTLY OR INDIRECTLY BENEFIT EACH COMPANY HEREUNDER SEVERALLY, AND ALL OF THEM
JOINTLY, REGARDLESS OF THE FACT NO COMPANY RECEIVES ALL OR PART OF THE PROCEEDS
OF ANY OF THE LOANS.
(B)
ACCEPTANCE OF JOINT AND SEVERAL LIABILITY.
EACH OF THE COMPANIES
IS ACCEPTING JOINT AND SEVERAL LIABILITY HEREUNDER AND UNDER THE OTHER LOAN
DOCUMENTS IN CONSIDERATION OF THE FINANCIAL ACCOMMODATIONS TO BE PROVIDED BY THE
LENDER UNDER THIS AGREEMENT, FOR THE MUTUAL BENEFIT, DIRECTLY AND INDIRECTLY, OF
EACH OF THE COMPANIES AND IN CONSIDERATION OF THE UNDERTAKINGS OF EACH OTHER
COMPANY TO ACCEPT JOINT AND SEVERAL LIABILITY FOR THE OBLIGATIONS.
(C)
PAYMENT AND PERFORMANCE.
EACH OF THE COMPANIES, JOINTLY AND
SEVERALLY, HEREBY IRREVOCABLY AND UNCONDITIONALLY ACCEPTS, NOT MERELY AS A
SURETY BUT ALSO AS A CO-DEBTOR, JOINT AND SEVERAL LIABILITY WITH THE OTHER
COMPANY, WITH RESPECT TO THE PAYMENT AND PERFORMANCE OF ALL OF THE OBLIGATIONS,
IT BEING THE INTENTION OF THE PARTIES HERETO THAT ALL THE OBLIGATIONS SHALL BE
THE JOINT AND SEVERAL OBLIGATIONS OF EACH OF THE COMPANIES WITHOUT PREFERENCE OR
DISTINCTION AMONG THEM.
(D)
FAILURE TO PERFORM.
IF AND TO THE EXTENT THAT ANY COMPANY SHALL
FAIL TO MAKE ANY PAYMENT WITH RESPECT TO ANY OF THE OBLIGATIONS AS AND WHEN DUE
OR TO PERFORM ANY OF THE OBLIGATIONS IN ACCORDANCE WITH THE TERMS THEREOF, THEN
IN EACH SUCH EVENT THE OTHER COMPANY WILL MAKE SUCH PAYMENT WITH RESPECT TO, OR
PERFORM, SUCH OBLIGATION.
(E)
WAIVER OF NOTICE; ASSENT TO ACTIONS; ETC.
THE OBLIGATIONS OF EACH
OF THE COMPANIES UNDER THE PROVISIONS OF THIS SECTION 9.13 CONSTITUTE FULL
RECOURSE OBLIGATIONS OF EACH OF THE COMPANIES ENFORCEABLE AGAINST EACH SUCH
COMPANY, IRRESPECTIVE OF THE VALIDITY, REGULARITY OR ENFORCEABILITY OF THIS
AGREEMENT AS AGAINST ANY PARTICULAR COMPANY.
EACH AND EVERY REPRESENTATION,
WARRANTY, COVENANT AND AGREEMENT MADE BY THE COMPANIES, OR ANY OF THEM,
HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS SHALL BE JOINT AND SEVERAL, WHETHER
OR NOT SO EXPRESSED, AND SUCH OBLIGATIONS OF ANY COMPANY SHALL NOT BE
42
SUBJECT TO ANY COUNTERCLAIM, SETOFF, RECOUPMENT OR DEFENSE BASED UPON ANY CLAIM
ANY COMPANY MAY HAVE AGAINST ANY OTHER COMPANY OR THE LENDER (OTHER THAN THE
INDEFEASIBLE PAYMENT OF THE OBLIGATIONS IN FULL), AND SHALL REMAIN IN FULL FORCE
AND EFFECT WITHOUT REGARD TO, AND SHALL NOT BE RELEASED, DISCHARGED OR IN ANY
WAY AFFECTED BY, ANY CIRCUMSTANCES OR CONDITION AFFECTING ANY OTHER COMPANY,
INCLUDING WITHOUT LIMITATION (A) ANY WAIVER, CONSENT, EXTENSION, RENEWAL,
INDULGENCE OR OTHER ACTION OR INACTION UNDER OR IN RESPECT OF THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY AGREEMENT OR OTHER DOCUMENT RELATED THERETO WITH
RESPECT TO ANY OTHER COMPANY, OR ANY EXERCISE OR NONEXERCISE