other than any such information that is
available to the Agent or any Bank on a non-confidential basis prior to
disclosure by the Company; provided that, in the case of information received
from the Company after the date hereof, such information is clearly identified
at the time of delivery as confidential.
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.
EACH BANK ACKNOWLEDGES THAT INFORMATION (AS DEFINED ABOVE) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION
CONCERNING THE COMPANY AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES,
AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF
MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC
INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION (AS DEFINED ABOVE), INCLUDING REQUESTS FOR WAIVERS AND
AMENDMENTS, FURNISHED BY THE COMPANY OR THE AGENT PURSUANT TO, OR IN THE COURSE
OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH
MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY AND ITS RELATED
PARTIES OR THEIR RESPECTIVE SECURITIES.
ACCORDINGLY, EACH BANK REPRESENTS TO
THE COMPANY AND THE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE
QUESTIONNAIRE PROVIDED TO THE AGENT A CREDIT CONTACT WHO MAY RECEIVE INFORMATION
THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS
COMPLIANCE PROCEDURES AND APPLICABLE LAW.
12.17
No Advisory or Fiduciary Responsibility.
In connection with
all aspects of each transaction contemplated hereby (including in connection
with any amendment, waiver or other modification hereof or of any other Credit
Document), the Company acknowledges and agrees that:
(i) none of the Arranger,
the Agent or the Banks or their respective Affiliates are subject to any
fiduciary or other implied duties, (ii) the Company agrees that the Arranger,
the Agent and the Banks are acting under this Agreement and the Credit Documents
as independent contractors and that nothing in this Agreement or the Credit
Documents will be deemed to create an advisory, fiduciary or agency relationship
or other implied duty between the Arranger, the Agent, and the Banks, on one
hand, and the Company and the Company's respective equity holders or the Company
and its respective affiliates, on the other hand, (iii) none of the Arranger,
the Agent or the Banks or their respective Affiliates are advising the Company
or any of its Affiliates as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction, (iiv) the Company has consulted with its
own advisors concerning such matters and is responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby,
and none of the Arranger, the Agent or the Banks or their respective Affiliates
have any responsibility or liability to the Company or any of its Affiliates
with