THE PARTIES HEREUNDER AND THEREUNDER, SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES) AND IS
INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT.
EXCEPT AS PROHIBITED BY LAW
WHICH CANNOT BE WAIVED, THE BORROWER, THE AGENT AND EACH LENDER HEREBY WAIVE ANY
RIGHT THAT THEY MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION INVOLVING THE
AGENT, ANY LENDER OR THE BORROWER ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES.
THE PROVISIONS OF THIS AGREEMENT ARE SEVERABLE; THE UNENFORCEABILITY
OF ANY PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY, BINDING EFFECT
AND ENFORCEABILITY OF ANY OTHER PROVISION OR PROVISIONS OF THIS AGREEMENT.
51
(B)
ANY REFERENCE TO THIS AGREEMENT, THE NOTES,
THE LOAN DOCUMENTS AND THE OTHER LOAN DOCUMENTS CONTAINED HEREIN OR IN ANY OTHER
LOAN DOCUMENT SHALL (UNLESS OTHERWISE EXPRESSLY INDICATED) BE DEEMED TO REFER TO
SUCH WRITING AS THE SAME MAY BE AMENDED, EXTENDED AND/OR RESTATED FROM TIME TO
TIME IN ACCORDANCE WITH THE TERMS THEREOF.
THE WORDS "HEREIN", "HEREOF",
"HEREUNDER" AND WORDS OF LIKE IMPORT SHALL REFER TO THIS AGREEMENT AS A WHOLE
AND NOT TO ANY PARTICULAR SECTION OR PARAGRAPH OF THIS AGREEMENT.
IN THE EVENT
OF ANY CONFLICT BETWEEN THE PROVISIONS OF THIS AGREEMENT (ON THE ONE HAND) AND
THE PROVISIONS OF ANY OF THE OTHER LOAN DOCUMENTS (ON THE OTHER HAND), THE
PROVISIONS OF THIS AGREEMENT SHALL PREVAIL.
15.8.
PARTICIPATION.
EACH LENDER SHALL HAVE THE
UNRESTRICTED RIGHT AT ANY TIME AND FROM TIME TO TIME, AND WITHOUT THE CONSENT OF
OR NOTICE TO THE BORROWER, TO GRANT TO ONE OR MORE BANKS OR OTHER FINANCIAL
INSTITUTIONS (EACH, A "PARTICIPANT") PARTICIPATING INTERESTS IN SUCH LENDER'S
OBLIGATION TO LEND HEREUNDER AND/OR ANY OR ALL OF THE LOANS HELD BY SUCH LENDER
HEREUNDER.
IN THE EVENT OF ANY SUCH GRANT BY A LENDER OF A PARTICIPATING
INTEREST TO A PARTICIPANT, WHETHER OR NOT UPON NOTICE TO THE BORROWER, SUCH
LENDER SHALL REMAIN RESPONSIBLE FOR THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER
AND THE BORROWER SHALL CONTINUE TO DEAL SOLELY AND DIRECTLY WITH SUCH LENDER IN
CONNECTION WITH SUCH LENDER'S RIGHTS AND OBLIGATIONS HEREUNDER.
THE LENDERS MAY
FURNISH ANY INFORMATION CONCERNING THE BORROWER IN THEIR POSSESSION FROM TIME TO
TIME TO PROSPECTIVE PARTICIPANTS, PROVIDED THAT THE LENDERS SHALL REQUIRE ANY
SUCH PROSPECTIVE PARTICIPANT TO AGREE IN WRITING TO MAINTAIN THE CONFIDENTIALITY
OF SUCH INFORMATION PURSUANT TO SECTION 15.9 HEREIN.
15.9.
CONFIDENTIALITY AGREEMENT OF THE LENDERS.
ALL
CONFIDENTIAL AND NON-PUBLIC INFORMATION OBTAINED BY THE AGENT, THE LENDERS AND
THEIR REPRESENTATIVES, ASSIGNS AND SUCCESSORS WITH RESPECT TO THE BORROWER OR
ANY OF ITS SUBSIDIARIES SHALL BE KEPT STRICTLY CONFIDENTIAL BY THE AGENT, THE
LENDERS AND THEIR REPRESENTATIVES, ASSIGNS AND SUCCESSORS UNTIL OTHERWISE
NOTIFIED BY THE BORROWER.
THE CONFIDENTIALITY PROVISIONS OF THIS SUBSECTION
15.9 DO NOT APPLY TO INFORMATION THAT (I) IS OR BECOMES AVAILABLE IN THE PUBLIC
DOMAIN THROUGH NO FAULT OF THE