ASSOCIATION, A JOINT VENTURE OR ANY OTHER KIND OF ENTITY.
THE
AMOUNTS PAYABLE AT ANY TIME HEREUNDER TO EACH LENDER SHALL BE A SEPARATE AND
INDEPENDENT DEBT.
9.8.
HEADINGS.
SECTION AND SUBSECTION HEADINGS ARE INCLUDED HEREIN FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONSTITUTE A PART OF THIS AGREEMENT
FOR ANY OTHER PURPOSES OR BE GIVEN SUBSTANTIVE EFFECT.
9.9.
APPLICABLE LAW.
THIS AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS WHICH DOES NOT EXPRESSLY SET FORTH APPLICABLE LAW SHALL BE GOVERNED BY
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
9.10.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND
PERMITTED ASSIGNS EXCEPT THAT BORROWERS MAY NOT ASSIGN THEIR RIGHTS OR
OBLIGATIONS HEREUNDER WITHOUT THE WRITTEN CONSENT OF ALL LENDERS AND ANY SUCH
PURPORTED ASSIGNMENT WITHOUT SUCH WRITTEN CONSENT SHALL BE VOID.
9.11.
NO FIDUCIARY RELATIONSHIP; LIMITED LIABILITY.
NO PROVISION IN THE
LOAN DOCUMENTS AND NO COURSE OF DEALING BETWEEN THE PARTIES SHALL BE DEEMED TO
CREATE ANY FIDUCIARY DUTY OWING TO ANY CREDIT PARTY BY AGENT OR ANY LENDER.
BORROWERS AND EACH OTHER CREDIT PARTY AGREE THAT NEITHER AGENT NOR ANY LENDER
SHALL HAVE LIABILITY TO BORROWERS OR ANY OTHER CREDIT PARTY (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY BORROWERS OR ANY OTHER
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 BORROWERS AND EACH OTHER CREDIT PARTY HEREBY WAIVE, RELEASE AND
AGREE NOT TO SUE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES SUFFERED BY
BORROWERS 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, BORROWERS AND EACH OTHER CREDIT
PARTY ACKNOWLEDGE THAT EACH OF THEM HAS HAD THE BENEFIT OF LEGAL COUNSEL OF ITS
OWN CHOICE AND HAS
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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, BORROWERS 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
BORROWERS AND NOT TO DISCLOSE SUCH INFORMATION TO PERSONS OTHER THAN TO
POTENTIAL ASSIGNEES OR PARTICIPANTS OR TO ANY AFFILIATE OF, OR PERSONS