Common use of Credit Resources Clause in Contracts

Credit Resources. The Company acknowledges that Newco has informed it that Newco may not from time to time in the future have cash, cash equivalents, and credit resources sufficient to permit Newco to necessarily make all requested Advances under this Agreement while maintaining sufficient working capital for Newco's operating needs. The Company agrees that in the event Newco shall fail to fund the Loans as and to the extent required hereby solely as a result of the unavailability to Newco of cash and/or credit resources to fund the Loans and not as a result of any failure of the Company to satisfy the conditions precedent to Advances or of the occurrence of a Development Default or Event of Default hereunder (a "Funding Default"), such Funding Default shall not (a) constitute fraud (by any person or entity, including Newco and its successors and assignees) or (b) give rise to any liability of any person or entity (other than Newco and its successors and assignees) in any other tort, and the Company further agrees that it shall be limited to its remedies in contract and in a non-fraud tort action against Newco. Newco and the Company agree that this Section 3.11 shall not diminish or otherwise affect in any way the amount of damages for which Newco may be liable to the Company in a contract or non-fraud tort action for a Funding Default.

Credit Resources. The Company acknowledges that Newco has informed it ---------------- that Newco may not from time to time in the future have cash, cash equivalents, and credit resources sufficient to permit Newco to necessarily make all requested Advances under this Agreement while maintaining sufficient working capital for Newco's operating needs. The Company agrees that in the event Newco shall fail to fund the Loans as and to the extent required hereby solely as a result of the unavailability to Newco of cash and/or credit resources to fund the Loans and not as a result of any failure of the Company to satisfy the conditions precedent to Advances or of the occurrence of a Development Default or Event of Default hereunder (a "Funding Default"), such Funding Default shall not (a) constitute fraud (by any person or entity, including Newco and its successors and assignees) or (b) give rise to any liability of any person or entity (other than Newco and its successors and assignees) in any other tort, and the Company further agrees that it shall be limited to its remedies in contract and in a non-fraud tort action against Newco. Newco and the Company agree that this Section 3.11 shall not diminish or otherwise affect in any way the amount of damages for which Newco may be liable to the Company in a contract or non-fraud tort action for a Funding Default.

Credit Resources. The Company acknowledges that Newco has informed ---------------- it that Newco may not from time to time in the future have cash, cash equivalents, and credit resources sufficient to permit Newco to necessarily make all requested Advances under this Agreement while maintaining sufficient working capital for Newco's operating needs. The Company agrees that in the event Newco shall fail to fund the Loans as and to the extent required hereby solely as a result of the unavailability to Newco of cash and/or credit resources to fund the Loans and not as a result of any failure of the Company to satisfy the conditions precedent to Advances or of the occurrence of a Development Default or Event of Default hereunder (a "Funding Default"), such Funding Default shall not (a) constitute fraud (by any person or entity, including Newco and its successors and assignees) or (b) give rise to any liability of any person or entity (other than Newco and its successors and assignees) in any other tort, and the Company further agrees that it shall be limited to its remedies in contract and in a non-fraud tort action against Newco. Newco and the Company agree that this Section 3.11 shall not diminish or otherwise affect in any way the amount of damages for which Newco may be liable to the Company in a contract or non-fraud tort action for a Funding Default.