have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters to the extent caused by or
resulting from the willful misconduct or gross negligence of such Indemnitee
with respect to the Loan Documents, as determined by the final non-appealable
judgment of a court of competent jurisdiction. If the undertaking to indemnify,
pay and hold harmless set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, the Borrower shall
contribute the maximum portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all Indemnified Matters
incurred by the Indemnitees.
(C)
WAIVER OF CERTAIN CLAIMS; SETTLEMENT OF
CLAIMS.
THE BORROWER FURTHER AGREES TO ASSERT NO CLAIM AGAINST ANY OF THE
INDEMNITEES ON ANY THEORY OF LIABILITY SEEKING CONSEQUENTIAL, SPECIAL, INDIRECT,
EXEMPLARY OR PUNITIVE DAMAGES.
NO SETTLEMENT SHALL BE ENTERED INTO BY THE
BORROWER OR ANY OF ITS SUBSIDIARIES WITH RESPECT TO ANY CLAIM, LITIGATION,
ARBITRATION OR OTHER PROCEEDING RELATING TO OR ARISING OUT OF THE TRANSACTIONS
EVIDENCED BY THIS AGREEMENT, THE OTHER LOAN DOCUMENTS UNLESS SUCH SETTLEMENT
RELEASES ALL INDEMNITEES FROM ANY AND ALL LIABILITY WITH RESPECT THERETO.
72
(D)
SURVIVAL OF AGREEMENTS.
THE OBLIGATIONS AND
AGREEMENTS OF THE BORROWER UNDER THIS SECTION 10.7 SHALL SURVIVE THE TERMINATION
OF THIS AGREEMENT.
10.7
NUMBERS OF DOCUMENTS.
THE BORROWER WILL PROVIDE
THE LENDER WITH SUCH ADDITIONAL COPIES OF
STATEMENTS, NOTICES, CLOSING
DOCUMENTS, AND REQUESTS HEREUNDER, AS THE LENDER MAY REASONABLY REQUEST.
10.8
CONFIDENTIALITY.
LENDER AGREES TO HOLD ANY
CONFIDENTIAL INFORMATION WHICH IT MAY RECEIVE FROM THE BORROWER PURSUANT TO THIS
AGREEMENT IN CONFIDENCE, EXCEPT FOR DISCLOSURE (I) TO ITS AFFILIATES WHO ARE
EXPECTED TO BE INVOLVED IN THE EVALUATION OF SUCH INFORMATION AND WHO ARE
ADVISED OF THE CONFIDENTIAL NATURE OF THE INFORMATION, (II) TO LEGAL COUNSEL,
ACCOUNTANTS, AND OTHER PROFESSIONAL ADVISORS TO LENDER, (III) TO REGULATORY
OFFICIALS, (IV) TO ANY PERSON AS REQUESTED PURSUANT TO OR AS REQUIRED BY LAW,
REGULATION, OR LEGAL PROCESS, (V) TO ANY PERSON IN CONNECTION WITH ANY LEGAL
PROCEEDING TO WHICH SUCH LENDER IS A PARTY, (VI) TO SUCH LENDER'S DIRECT OR
INDIRECT CONTRACTUAL COUNTERPARTIES IN HEDGING AGREEMENTS OR TO LEGAL COUNSEL,
ACCOUNTANTS AND OTHER PROFESSIONAL ADVISORS TO SUCH COUNTERPARTIES,
(VII) PERMITTED HEREUNDER AND (VIII) TO RATING AGENCIES IF REQUESTED OR REQUIRED
BY SUCH AGENCIES IN CONNECTION WITH A RATING RELATING TO THE LOANS HEREUNDER.
10.9
SEVERABILITY OF PROVISIONS.
ANY PROVISION IN ANY
LOAN DOCUMENT THAT IS HELD TO BE INOPERATIVE, UNENFORCEABLE, OR INVALID IN ANY
JURISDICTION SHALL, AS TO THAT JURISDICTION, BE INOPERATIVE, UNENFORCEABLE, OR
INVALID WITHOUT AFFECTING THE REMAINING PROVISIONS IN THAT .JURISDICTION OR THE
OPERATION, ENFORCEABILITY, OR VALIDITY OF THAT PROVISION IN ANY OTHER
JURISDICTION, AND TO THIS END THE PROVISIONS OF ALL LOAN DOCUMENTS ARE DECLARED
TO BE SEVERABLE.
10.10
NONLIABILITY OF LENDERS.
THE RELATIONSHIP BETWEEN THE
BORROWER AND THE LENDER SHALL BE SOLELY THAT OF BORROWER AND LENDER.
THE LENDER
SHALL NOT HAVE ANY FIDUCIARY RESPONSIBILITIES TO THE BORROWER. THE LENDER DOES
NOT