sounding in tort, contract or
otherwise) for losses suffered by any Credit Party in connection with, arising
out of, or in any way related to the transactions contemplated and the
relationship established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless and to the extent that it is
determined that such losses resulted from the gross negligence or willful
misconduct of the party from which 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 Holdings and Borrower
each hereby on behalf of itself and each other Credit Party, waives, releases
and agrees not to sue for, any special, indirect or consequential damages
suffered by any 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, HOLDINGS AND
BORROWER ACKNOWLEDGE THAT EACH OF THEM AND EACH OTHER CREDIT PARTY 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, HOLDINGS,
BORROWER AND EACH OTHER CREDIT PARTY.
9.13
CONFIDENTIALITY.
AGENT AND EACH LENDER AGREE TO
KEEP CONFIDENTIAL, USING THE SAME STANDARD OF CARE AS USED IN PROTECTING THEIR
OWN CONFIDENTIAL INFORMATION (BUT NO LESS THAN A REASONABLE DEGREE OF CARE), ANY
NON-PUBLIC INFORMATION DELIVERED PURSUANT TO THE LOAN DOCUMENTS AND NOT TO
DISCLOSE SUCH INFORMATION TO PERSONS OTHER THAN TO POTENTIAL ASSIGNEES OR
PARTICIPANTS OR TO PERSONS EMPLOYED BY OR ENGAGED BY AGENT, A LENDER OR A
LENDER'S ASSIGNEES OR PARTICIPANTS INCLUDING ATTORNEYS, AUDITORS, PROFESSIONAL
CONSULTANTS, RATING AGENCIES, INSURANCE INDUSTRY ASSOCIATIONS AND PORTFOLIO
MANAGEMENT SERVICES; PROVIDED SUCH PERSONS ARE SUBJECT TO A DUTY OF
CONFIDENTIALITY WITH RESPECT TO THE INFORMATION DISCLOSED THAT IS AT LEAST AS
RESTRICTIVE AS THE CONFIDENTIALITY OBLIGATIONS CONTAINED IN THIS SECTION 9.13.
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;
PROVIDED THAT AGENT OR SUCH LENDER SHALL ENDEAVOR (TO THE EXTENT PERMITTED BY
ANY REGULATORY OR GOVERNMENTAL AGENCY) TO PROVIDE BORROWER WITH PROMPT NOTICE OF
SUCH REQUESTED DISCLOSURE SO THAT BORROWER MAY SEEK A PROTECTIVE ORDER OR OTHER
APPROPRIATE REMEDY AND, IN ANY EVENT, AGENT OR SUCH LENDER WILL ENDEAVOR TO
PROVIDE ONLY THAT PORTION OF SUCH INFORMATION WHICH, IN THE REASONABLE JUDGMENT
OF AGENT OR SUCH LENDER, AS THE CASE MAY BE, IS RELEVANT OR LEGALLY REQUIRED TO
PROVIDE OR (II) CONSISTING OF GENERAL PORTFOLIO INFORMATION THAT DOES NOT
SPECIFICALLY IDENTIFY BORROWER.
HOLDINGS AND BORROWER EACH CONSENT 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