AVAILABLE TO
THE ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY LENDER ON A NONCONFIDENTIAL
BASIS FROM A SOURCE OTHER THAN THE COMPANY.
FOR THE PURPOSES OF THIS SECTION,
"INFORMATION" MEANS ALL INFORMATION RECEIVED FROM OR ON BEHALF OF THE COMPANY OR
ANY OF ITS AFFILIATES RELATING TO THE COMPANY OR ITS BUSINESS OR ANY OF ITS
AFFILIATES OR THEIR RESPECTIVE BUSINESSES, OTHER THAN ANY SUCH INFORMATION THAT
IS AVAILABLE TO THE ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY LENDER ON A
NONCONFIDENTIAL BASIS PRIOR TO DISCLOSURE BY THE COMPANY.
ANY PERSON REQUIRED
TO MAINTAIN THE CONFIDENTIALITY OF INFORMATION AS PROVIDED IN THIS SECTION SHALL
BE CONSIDERED TO HAVE COMPLIED WITH ITS OBLIGATION TO DO SO IF SUCH PERSON HAS
EXERCISED THE SAME DEGREE OF CARE TO MAINTAIN THE CONFIDENTIALITY OF SUCH
INFORMATION AS SUCH PERSON WOULD ACCORD TO ITS OWN CONFIDENTIAL INFORMATION.
86
SECTION 12.14.
USA PATRIOT ACT NOTIFICATION.
EACH LENDER SUBJECT TO THE ACT
(AS DEFINED BELOW) HEREBY NOTIFIES THE BORROWERS THAT, PURSUANT TO THE
REQUIREMENTS OF THE USA PATRIOT ACT (TITLE III OF PUB. L. 107-56 (SIGNED INTO
LAW OCTOBER 26, 2001)) (THE "ACT"), IT IS REQUIRED TO OBTAIN, VERIFY AND RECORD
INFORMATION THAT IDENTIFIES THE BORROWERS, WHICH INFORMATION INCLUDES THE NAME
AND ADDRESS OF THE BORROWERS AND OTHER INFORMATION THAT WILL ALLOW SUCH LENDER
TO IDENTIFY THE BORROWERS IN ACCORDANCE WITH THE ACT.
THE BORROWERS AGREE TO
COOPERATE WITH EACH LENDER AND PROVIDE TRUE, ACCURATE AND COMPLETE INFORMATION
TO SUCH LENDER IN RESPONSE TO ANY SUCH REQUEST.
SECTION 12.15.
NO FIDUCIARY DUTY.
EACH AGENT, EACH LENDER AND THEIR AFFILIATES
(COLLECTIVELY, THE "LENDER PARTIES"), MAY HAVE ECONOMIC INTERESTS THAT CONFLICT
WITH THOSE OF THE BORROWERS.
EACH BORROWER AGREES THAT, EXCEPT AS EXPRESSLY
PROVIDED OTHERWISE IN SECTION 12.04(B)(IV), NOTHING IN THE LOAN DOCUMENTS WILL
BE DEEMED TO CREATE AN ADVISORY, FIDUCIARY OR AGENCY RELATIONSHIP OR FIDUCIARY
OR OTHER IMPLIED DUTY BETWEEN THE LENDER PARTIES AND THE BORROWERS, ITS
STOCKHOLDERS OR ITS AFFILIATES IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY.
THE BORROWERS ACKNOWLEDGE AND AGREE THAT (I) THE TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS ARE ARM'S-LENGTH COMMERCIAL TRANSACTIONS
BETWEEN THE LENDER PARTIES, ON THE ONE HAND, AND THE BORROWERS, ON THE OTHER,
(II) IN CONNECTION THEREWITH AND WITH THE PROCESS LEADING TO SUCH TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS EACH OF THE LENDER PARTIES IS ACTING SOLELY
AS A PRINCIPAL AND NOT THE FIDUCIARY OF EACH OF THE BORROWER, ITS MANAGEMENT,
STOCKHOLDERS, CREDITORS OR ANY OTHER PERSON, (III) NO LENDER PARTY HAS ASSUMED
AN ADVISORY OR FIDUCIARY RESPONSIBILITY IN FAVOR OF ANY BORROWER WITH RESPECT TO
THE TRANSACTIONS CONTEMPLATED HEREBY OR THE PROCESS LEADING THERETO
(IRRESPECTIVE OF WHETHER ANY LENDER PARTY OR ANY OF ITS AFFILIATES HAS ADVISED
OR IS CURRENTLY ADVISING ANY BORROWER ON OTHER MATTERS) AND (IV) EACH BORROWER
HAS CONSULTED ITS OWN LEGAL AND FINANCIAL ADVISORS TO THE EXTENT IT DEEMED
APPROPRIATE.
EACH BORROWER FURTHER ACKNOWLEDGES AND AGREES THAT IT IS
RESPONSIBLE FOR MAKING ITS OWN INDEPENDENT JUDGMENT WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED HEREBY AND