AGREEMENT AND
THE OTHER FINANCING AGREEMENTS SHALL NOT BE CONSTRUED AGAINST AGENT OR LENDERS
MERELY BECAUSE OF AGENT'S OR ANY LENDER'S INVOLVEMENT IN THEIR PREPARATION.
14.3
NOTICES.
EXCEPT AS OTHERWISE PROVIDED HEREIN, ALL NOTICES,
REQUESTS AND DEMANDS HEREUNDER SHALL BE IN WRITING AND DEEMED TO HAVE BEEN GIVEN
OR MADE:
IF DELIVERED IN PERSON, IMMEDIATELY UPON DELIVERY; IF BY TELEX,
TELEGRAM OR FACSIMILE TRANSMISSION, IMMEDIATELY UPON SENDING AND UPON
CONFIRMATION OF RECEIPT; IF BY NATIONALLY RECOGNIZED OVERNIGHT COURIER SERVICE
WITH INSTRUCTIONS TO DELIVER THE NEXT BUSINESS DAY, ONE (1) BUSINESS DAY AFTER
SENDING; AND IF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, FIVE (5) DAYS AFTER
MAILING. ALL NOTICES, REQUESTS AND DEMANDS UPON THE PARTIES ARE TO BE GIVEN TO
THE FOLLOWING ADDRESSES (OR TO SUCH OTHER ADDRESS AS ANY PARTY MAY DESIGNATE BY
NOTICE IN ACCORDANCE WITH THIS SECTION):
If to any Borrower or Guarantor:
Lerner New York, Inc.
450 West 33rd Street
New York, NY 10001
Attention: Chief Financial Officer
Telephone No.: (212) 884-2110
Telecopy No.: (212) 884-2103
with a copy to:
Kirkland & Ellis LLP
Citigroup Center
153 East 53rd Street
New York, NY 10022
Attention: Binta Niambi Brown, Esq.
Telephone No.: (212) 446-4800
Telecopy No.: (212) 446-4900
If to Agent:
Wachovia Bank, National Association, as Agent
1133 Avenue of the Americas
New York, New York 10036
Manager-Lerner New York, Inc.
Telephone No.: (212) 545-4280
Telecopy No.: (212) 545-4283
14.4
PARTIAL INVALIDITY.
IF ANY PROVISION OF THIS AGREEMENT IS HELD TO
BE INVALID OR UNENFORCEABLE, SUCH INVALIDITY OR UNENFORCEABILITY SHALL NOT
INVALIDATE THIS AGREEMENT AS A WHOLE, BUT THIS AGREEMENT SHALL BE CONSTRUED AS
THOUGH IT DID NOT CONTAIN THE PARTICULAR PROVISION
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held to be invalid or unenforceable and the rights and obligations of the
parties shall be construed and enforced only to such extent as shall be
permitted by applicable law.
14.5
CONFIDENTIALITY.
(A)
AGENT AND EACH LENDER SHALL USE ALL REASONABLE EFFORTS TO KEEP
CONFIDENTIAL, IN ACCORDANCE WITH ITS CUSTOMARY PROCEDURES FOR HANDLING
CONFIDENTIAL INFORMATION AND SAFE AND SOUND LENDING PRACTICES, ANY NON-PUBLIC
INFORMATION SUPPLIED TO IT BY ANY BORROWER OR GUARANTOR PURSUANT TO THIS
AGREEMENT WHICH IS CLEARLY AND CONSPICUOUSLY MARKED AS CONFIDENTIAL AT THE TIME
SUCH INFORMATION IS FURNISHED BY ANY BORROWER OR GUARANTOR TO AGENT OR SUCH
LENDER, PROVIDED, THAT, NOTHING CONTAINED HEREIN SHALL LIMIT THE DISCLOSURE OF
ANY SUCH INFORMATION: (I) TO THE EXTENT REQUIRED BY STATUTE, RULE, REGULATION,
SUBPOENA OR COURT ORDER, (II) TO BANK EXAMINERS AND OTHER REGULATORS, AUDITORS
AND/OR ACCOUNTANTS, IN CONNECTION WITH ANY LITIGATION TO WHICH AGENT OR SUCH
LENDER IS A PARTY, (III) TO ANY LENDER OR PARTICIPANT (OR PROSPECTIVE LENDER OR
PARTICIPANT) OR TO ANY AFFILIATE OF ANY LENDER SO LONG AS SUCH LENDER OR
PARTICIPANT (OR PROSPECTIVE LENDER OR PARTICIPANT) OR AFFILIATE SHALL HAVE BEEN
INSTRUCTED TO TREAT SUCH INFORMATION AS CONFIDENTIAL IN ACCORDANCE WITH THIS
SECTION 14.5, OR (IV) TO COUNSEL FOR AGENT OR ANY LENDER OR PARTICIPANT (OR
PROSPECTIVE LENDER OR PARTICIPANT).
(B)
IN THE EVENT THAT AGENT OR ANY