THE DIRECT OR INDIRECT APPLICATION OR PROPOSED
APPLICATION OF THE PROCEEDS OF ANY REVOLVING CREDIT LOAN HEREUNDER EXCEPT TO THE
EXTENT THAT THEY HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF THE PARTY SEEKING INDEMNIFICATION.
THE OBLIGATIONS OF THE BORROWER UNDER
THIS SECTION 10.7 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
10.8
ACCOUNTING.
EXCEPT AS
PROVIDED TO THE CONTRARY HEREIN, ALL ACCOUNTING TERMS USED HEREIN SHALL BE
INTERPRETED AND ALL ACCOUNTING DETERMINATIONS HEREUNDER SHALL BE MADE IN
ACCORDANCE WITH AGREEMENT ACCOUNTING PRINCIPLES.
IN THE EVENT THE PAGES,
COLUMNS, LINES OR SECTIONS OF THE ANNUAL STATEMENT REFERENCED HEREIN ARE CHANGED
OR RENUMBERED, ALL SUCH REFERENCES SHALL BE DEEMED REFERENCES TO SUCH PAGE,
COLUMN, LINE OR SECTION AS SO RENUMBERED OR CHANGED.
10.9
SEVERABILITY OF
PROVISIONS.
ANY PROVISION IN ANY FACILITY DOCUMENT THAT IS HELD TO BE
INOPERATIVE, UNENFORCEABLE, OR INVALID IN ANY JURISDICTION SHALL, AS TO THAT
JURISDICTION, BE INOPERATIVE, UNENFORCEABLE, OR INVALID WITHOUT AFFECTING THE
REMAINING PROVISIONS IN THAT JURISDICTION OR THE OPERATION, ENFORCEABILITY, OR
VALIDITY OF THAT PROVISION IN ANY OTHER JURISDICTION, AND TO THIS END THE
PROVISIONS OF ALL FACILITY DOCUMENTS ARE DECLARED TO BE SEVERABLE.
10.10
NONLIABILITY OF LENDERS.
THE
RELATIONSHIP BETWEEN THE BORROWER ON THE ONE HAND AND THE LENDERS AND THE AGENT
ON THE OTHER HAND SHALL BE SOLELY THAT OF BORROWER AND LENDER.
NEITHER THE
AGENT, THE ARRANGER NOR ANY LENDER SHALL HAVE ANY FIDUCIARY RESPONSIBILITIES TO
THE BORROWER.
NEITHER THE AGENT, THE ARRANGER NOR ANY LENDER UNDERTAKES ANY
RESPONSIBILITY TO THE BORROWER TO REVIEW OR INFORM THE BORROWER OF ANY MATTER IN
CONNECTION WITH ANY PHASE OF THE BORROWER'S BUSINESS OR OPERATIONS.
THE
BORROWER AGREES THAT NEITHER THE AGENT, THE ARRANGER NOR ANY LENDER SHALL HAVE
LIABILITY TO THE BORROWER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) FOR
LOSSES SUFFERED BY THE BORROWER IN CONNECTION WITH, ARISING OUT OF, OR IN ANY
WAY RELATED TO, THE TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED
BY THE FACILITY DOCUMENTS, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION
THEREWITH, UNLESS IT IS DETERMINED IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT
OF COMPETENT JURISDICTION THAT SUCH LOSSES RESULTED FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE PARTY FROM WHICH RECOVERY IS SOUGHT.
NEITHER THE
AGENT, THE ARRANGER NOR ANY LENDER SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND
THE BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR, ANY SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES
58
SUFFERED BY THE BORROWER IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY
RELATED TO THE FACILITY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
10.11
CONFIDENTIALITY.
EACH LENDER
AGREES TO HOLD ANY CONFIDENTIAL INFORMATION WHICH IT MAY RECEIVE FROM THE
BORROWER PURSUANT TO THIS AGREEMENT IN CONFIDENCE, EXCEPT FOR DISCLOSURE (A) TO
ITS AFFILIATES AND TO OTHER LENDERS AND THEIR RESPECTIVE AFFILIATES, (B) TO
LEGAL COUNSEL, ACCOUNTANTS, AND OTHER PROFESSIONAL ADVISORS TO SUCH LENDER OR TO
A TRANSFEREE, (C) TO REGULATORY OFFICIALS, (D) TO ANY PERSON AS REQUESTED
PURSUANT TO OR AS REQUIRED BY LAW, REGULATION,