RECOVERY IS SOUGHT AS DETERMINED BY A FINAL NON-APPEALABLE ORDER BY A
COURT OF COMPETENT JURISDICTION.
NEITHER AGENT NOR ANY LENDER SHALL HAVE ANY
LIABILITY WITH RESPECT TO, AND BORROWER AND EACH OTHER CREDIT PARTY HEREBY
WAIVE, RELEASE AND AGREE NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES SUFFERED BY BORROWER AND ANY OTHER CREDIT PARTY IN CONNECTION WITH,
ARISING OUT OF, OR IN ANY WAY RELATED TO THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
9.12.
CONSTRUCTION.
AGENT, EACH LENDER, BORROWER AND EACH
OTHER CREDIT PARTY ACKNOWLEDGE THAT EACH OF THEM HAS HAD THE BENEFIT OF LEGAL
COUNSEL OF ITS OWN CHOICE AND HAS BEEN AFFORDED AN OPPORTUNITY TO REVIEW THE
LOAN DOCUMENTS WITH ITS LEGAL COUNSEL AND THAT THE LOAN DOCUMENTS SHALL BE
CONSTRUED AS IF JOINTLY DRAFTED BY AGENT, EACH LENDER, BORROWER AND EACH OTHER
CREDIT PARTY.
9.13.
CONFIDENTIALITY.
UNTIL THE TERMINATION DATE, AGENT
AND EACH LENDER AGREE TO EXERCISE THEIR BEST EFFORTS TO KEEP CONFIDENTIAL ANY
NON-PUBLIC INFORMATION DELIVERED PURSUANT TO THE LOAN DOCUMENTS AND IDENTIFIED
AS SUCH BY BORROWER AND NOT TO DISCLOSE SUCH INFORMATION TO PERSONS OTHER THAN
TO POTENTIAL ASSIGNEES OR PARTICIPANTS OR TO ANY AFFILIATE OF, OR PERSONS
EMPLOYED BY OR ENGAGED, BY AGENT, A LENDER OR ANY OF THEIR RESPECTIVE AFFILIATES
OR A LENDER'S ASSIGNEES OR PARTICIPANTS INCLUDING ATTORNEYS, AUDITORS,
PROFESSIONAL CONSULTANTS, RATING AGENCIES, INSURANCE INDUSTRY ASSOCIATIONS AND
PORTFOLIO MANAGEMENT SERVICES.
THE CONFIDENTIALITY PROVISIONS CONTAINED IN THIS
SECTION 9.13 SHALL NOT APPLY TO DISCLOSURES (I) REQUIRED TO BE MADE BY AGENT OR
ANY LENDER TO ANY REGULATORY OR GOVERNMENTAL AGENCY OR PURSUANT TO LAW, RULE,
REGULATIONS OR LEGAL PROCESS OR (II) CONSISTING OF GENERAL PORTFOLIO INFORMATION
THAT DOES NOT SPECIFICALLY IDENTIFY BORROWER.
EACH CREDIT PARTY CONSENTS TO THE
PUBLICATION BY AGENT OR ANY LENDER OF A TOMBSTONE OR SIMILAR ADVERTISING
MATERIAL RELATING TO THE FINANCING TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
AGENT OR SUCH LENDER SHALL PROVIDE A DRAFT OF ANY SUCH TOMBSTONE OR SIMILAR
ADVERTISING MATERIAL TO EACH CREDIT PARTY FOR REVIEW AND COMMENT PRIOR TO THE
PUBLICATION THEREOF.
AGENT MAY PROVIDE TO INDUSTRY TRADE ORGANIZATIONS
INFORMATION WITH RESPECT TO THE OBLIGATIONS THAT IS NECESSARY AND CUSTOMARY FOR
INCLUSION IN LEAGUE TABLE MEASUREMENTS.
THE OBLIGATIONS OF AGENT AND LENDERS
UNDER THIS SECTION 9.13 SHALL SUPERSEDE AND REPLACE THE OBLIGATIONS OF AGENT AND
LENDERS UNDER ANY CONFIDENTIALITY AGREEMENT IN RESPECT OF THIS FINANCING
EXECUTED AND DELIVERED BY AGENT OR ANY LENDER PRIOR TO THE DATE HEREOF.
9.14.
CONSENT TO JURISDICTION.
BORROWER AND CREDIT
PARTIES HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT AND
IRREVOCABLY AGREE THAT, SUBJECT TO AGENT'S ELECTION, ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL
BE LITIGATED IN SUCH COURT.
BORROWER AND CREDIT PARTIES EXPRESSLY SUBMIT AND
CONSENT TO THE JURISDICTION OF THE AFORESAID COURT AND WAIVE ANY DEFENSE OF
FORUM NON CONVENIENS.
BORROWER AND CREDIT PARTIES HEREBY WAIVE PERSONAL SERVICE
OF ANY AND ALL PROCESS AND AGREE THAT ALL SUCH SERVICE OF PROCESS MAY