THE SECURITY INSTRUMENT OR THE
OTHER LOAN DOCUMENTS OR THE FINANCING EVIDENCED BY THIS AGREEMENT, THE NOTE, THE
SECURITY INSTRUMENT OR THE OTHER LOAN DOCUMENTS, TO LENDERS, ADMINISTRATIVE
AGENT OR ANY OF THEIR AFFILIATES SHALL BE SUBJECT TO THE PRIOR WRITTEN APPROVAL
OF ADMINISTRATIVE AGENT, NOT TO BE UNREASONABLY WITHHELD, EXCEPT THAT SUCH
APPROVAL SHALL NOT BE REQUIRED FOR NEWS RELEASES, PUBLICITY OR ADVERTISING BY
BORROWER OR ITS AFFILIATES IN CONNECTION WITH ITS PUBLIC FILING REQUIREMENTS.
BORROWER SHALL HAVE A REASONABLE APPROVAL RIGHT WITH RESPECT TO PUBLICITY BY
ADMINISTRATIVE AGENT OR LENDERS WHICH REFERS TO THE BORROWER, GUARANTOR OR THE
133
Property, except that such approval shall not be required in connection with
Administrative Agent's or Lenders' customary marketing materials used for
internal purposes or for client meetings or pitches.
(B)
CONFIDENTIALITY.
EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE
LAW, ADMINISTRATIVE AGENT AND EACH LENDER SHALL UTILIZE ALL NON PUBLIC
INFORMATION OBTAINED PURSUANT TO THE REQUIREMENTS OF THIS AGREEMENT WHICH HAS
BEEN IDENTIFIED AS CONFIDENTIAL OR PROPRIETARY BY THE BORROWER IN ACCORDANCE
WITH ITS CUSTOMARY PROCEDURE FOR HANDLING CONFIDENTIAL INFORMATION OF THIS
NATURE AND IN ACCORDANCE WITH SAFE AND SOUND BANKING PRACTICES BUT IN ANY EVENT
MAY MAKE DISCLOSURE: (A) TO ANY OF THEIR RESPECTIVE AFFILIATES (PROVIDED ANY
SUCH AFFILIATE SHALL AGREE TO KEEP SUCH INFORMATION CONFIDENTIAL IN ACCORDANCE
WITH THE TERMS OF THIS SECTION); (B) AS REASONABLY REQUESTED BY ANY BONA FIDE
ASSIGNEE, PARTICIPANT OR OTHER TRANSFEREE IN CONNECTION WITH THE CONTEMPLATED
TRANSFER OF ANY NOTE OR PARTICIPATIONS THEREIN AS PERMITTED HEREUNDER (PROVIDED
THEY SHALL AGREE TO KEEP SUCH INFORMATION CONFIDENTIAL IN ACCORDANCE WITH THE
TERMS OF THIS SECTION); (C) AS REQUIRED OR REQUESTED BY ANY GOVERNMENTAL
AUTHORITY OR REPRESENTATIVE THEREOF OR PURSUANT TO LEGAL PROCESS OR IN
CONNECTION WITH ANY LEGAL PROCEEDINGS; (D) TO THE ADMINISTRATIVE AGENT'S OR SUCH
LENDER'S INDEPENDENT AUDITORS AND OTHER PROFESSIONAL ADVISORS (PROVIDED THEY
SHALL BE NOTIFIED OF THE CONFIDENTIAL NATURE OF THE INFORMATION); (E) IF AN
EVENT OF DEFAULT EXISTS, TO ANY OTHER PERSON, IN CONNECTION WITH THE EXERCISE BY
THE ADMINISTRATIVE AGENT OR THE LENDERS OF RIGHTS HEREUNDER OR UNDER ANY OF THE
OTHER LOAN DOCUMENTS; AND (F) TO THE EXTENT SUCH INFORMATION (X) BECOMES
PUBLICLY AVAILABLE OTHER THAN AS A RESULT OF A BREACH OF THIS SECTION OR (Y)
BECOMES AVAILABLE TO THE ADMINISTRATIVE AGENT OR ANY LENDER ON A NONCONFIDENTIAL
BASIS FROM A SOURCE OTHER THAN THE BORROWER OR ANY AFFILIATE.
SECTION 17.13
CONFLICT; CONSTRUCTION OF DOCUMENTS; RELIANCE.
IN THE EVENT OF
ANY CONFLICT BETWEEN THE PROVISIONS OF THIS AGREEMENT AND THE SECURITY
INSTRUMENT, THE NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, THE PROVISIONS OF THIS
AGREEMENT SHALL CONTROL.
WHEREVER THE PHRASE "DURING THE CONTINUANCE OF AN
EVENT OF DEFAULT" OR THE LIKE APPEARS HEREIN OR IN ANY OTHER LOAN DOCUMENT, SUCH
PHRASE SHALL NOT MEAN OR IMPLY THAT ADMINISTRATIVE AGENT HAS ANY OBLIGATION TO
ACCEPT A CURE OF SUCH EVENT OF DEFAULT.
THE PARTIES HERETO ACKNOWLEDGE THAT
THEY WERE REPRESENTED BY COMPETENT COUNSEL IN CONNECTION WITH THE NEGOTIATION,