Common use of Nonliability of Banks Clause in Contracts

Nonliability of Banks. The relationship between Borrowers on the one hand and the Banks and Agent on the other hand shall be solely that of borrower and lender. Neither Agent nor any Bank has any fiduciary relationship with or duty to any Loan Party arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Loan Parties, on the one hand, and Agent and the Banks, on the other hand, in connection herewith or therewith is solely that of debtor and creditor. Neither Agent nor any Bank undertakes any responsibility to any Loan Party to review or inform any Loan Party of any matter in connection with any phase of any Loan Party’s business or operations. Each Borrower agrees, on behalf of itself and each other Loan Party, that neither Agent nor any Bank shall have liability to any Loan Party (whether sounding in tort, contract or otherwise) for losses suffered by any Loan 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 it is determined in a final, non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. NO BANK PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, OTHER THAN RESULTING FROM SUCH BANK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NOR SHALL ANY BANK PARTY HAVE ANY LIABILITY WITH RESPECT TO, AND EACH BORROWER ON BEHALF OF ITSELF AND EACH OTHER LOAN PARTY, HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE). Each Borrower acknowledges that it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party. No joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Banks or among the Loan Parties and the Banks.

Nonliability of Banks. Borrowers acknowledge and agree that: (a) Any inspections of Collateral made by or through Agent or any Bank are for purposes of administration of the Loan only and Borrowers are not entitled to rely upon the same; (b) By accepting or approving anything required to be observed, performed, fulfilled or given to Agent or the Banks pursuant to the Loan Documents, including any certificate, financial statement, insurance policy or other document, neither Agent nor any Bank shall be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance or approval thereof shall not constitute a warranty or representation to anyone with respect thereto by Agent or Banks; (c) The relationship between Borrowers on the one hand and the Banks and Agent on the other hand and Banks is, and shall be at all times remain, solely that of borrower and lender. Neither lenders; neither Agent nor any Bank has shall under any fiduciary relationship with circumstance be construed to be partners or duty to any Loan Party arising out joint venturers of Borrowers or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Loan Parties, on the one hand, and Agent and the Banks, on the other hand, in connection herewith or therewith is solely that of debtor and creditor. Neither its Affiliates; neither Agent nor any Bank undertakes shall under any circumstance be deemed to be in a relationship of confidence or trust or a fiduciary relationship with Borrowers or their Affiliates, or to owe any fiduciary duty to Borrowers or their Affiliates; neither Agent nor any Bank shall undertake or assume any responsibility or duty to any Loan Party Borrowers or their Affiliates to review select, review, inspect, supervise, pass judgment upon or inform any Loan Party Borrowers or their Affiliates of any matter in connection with their Property, any phase Collateral held by Agent or any Bank or the operations of Borrowers or their Affiliates; Borrowers and their Affiliates shall rely entirely upon their own judgment with respect to such matters; and any review, inspection, supervision, exercise of judgment or supply of information undertaken or assumed by Agent or Banks in connection with such matters is solely for the protection of Agent and Banks and no Borrower or any other Person is entitled to rely thereon; and (d) Agent and Banks shall not be responsible or liable to any Person for any loss, damage, liability or claim of any Loan Party’s business kind relating to injury or operations. Each Borrower agrees, on behalf of itself and each other Loan Party, that neither Agent nor any Bank shall have liability death to any Loan Party (whether sounding in tort, contract Persons or otherwise) for losses suffered by any Loan Party in connection with, arising out of, or in any way related damage to the transactions contemplated and the relationship established Property caused by the Loan Documentsactions, inaction or negligence of Borrowers and/or their Affiliates and Borrowers hereby indemnify and hold Bank harmless from any actsuch loss, omission damage, liability or event occurring in connection therewith, unless it is determined in a final, non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. NO BANK PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, OTHER THAN RESULTING FROM SUCH BANK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NOR SHALL ANY BANK PARTY HAVE ANY LIABILITY WITH RESPECT TO, AND EACH BORROWER ON BEHALF OF ITSELF AND EACH OTHER LOAN PARTY, HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE). Each Borrower acknowledges that it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party. No joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Banks or among the Loan Parties and the Banksclaim.

Nonliability of Banks. The relationship between Borrowers the Borrower on the one hand and the Banks and the Agent on the other hand shall be solely that of borrower and lender. Neither the Agent nor any Bank has any fiduciary relationship with or duty to the Borrower or any Loan Party Guarantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Loan PartiesBorrower and Guarantors, on the one hand, and the Agent and the Banks, on the other hand, in connection herewith or therewith is solely that of debtor and creditor. Neither the Agent nor any Bank undertakes any responsibility to the Borrower or any Loan Party Guarantor to review or inform the Borrower or any Loan Party Guarantor of any matter in connection with any phase of the Borrower's or any Loan Party’s Guarantor's business or operations. Each The Borrower agrees, on behalf of itself and each other Loan PartyGuarantor, that neither the Agent nor any Bank shall have liability to the Borrower or any Loan Party Guarantor (whether sounding in tort, contract or otherwise) for losses suffered by the Borrower or any Loan Party Guarantor 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 it is determined in a final, final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. NO NEITHER THE AGENT NOR ANY BANK PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, OTHER THAN RESULTING FROM SUCH BANK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NOR SHALL THE AGENT OR ANY BANK PARTY HAVE ANY LIABILITY WITH RESPECT TO, AND EACH THE BORROWER ON BEHALF OF ITSELF AND EACH OTHER LOAN PARTYGUARANTOR, HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX SUE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS XXXS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE). Each The Borrower acknowledges that it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party. No joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Banks and the Agent or among the Loan Parties Borrower, the Guarantors, the Agent and the Banks.Banks BORROWER ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND BORROWER ACKNOWLEDGES AND AGREES THAT (a) EACH OF THE WAIVERS SET FORTH HEREIN, WERE KNOWINGLY AND VOLUNTARILY MADE; (b) THE OBLIGATIONS OF THE BANKS HEREUNDER, INCLUDING THE OBLIGATION TO ADVANCE AND LEND FUNDS TO BORROWER IN ACCORDANCE HEREWITH, WILL BE STRICTLY CONSTRUED AND WILL BE EXPRESSLY SUBJECT TO SUCH BORROWER'S COMPLIANCE IN ALL RESPECTS WITH THE TERMS AND CONDITIONS HEREIN SET FORTH; AND (c) NO REPRESENTATIVE OF ANY BANK HAS WAIVED OR MODIFIED ANY OF THE PROVISIONS OF THIS AGREEMENT AS OF THE DATE HEREOF AND NO SUCH WAIVER OR MODIFICATION FOLLOWING THE DATE HEREOF WILL BE EFFECTIVE UNLESS MADE IN ACCORDANCE WITH SECTION 9.2 HEREOF. [INTENTIONALLY LEFT BLANK - SIGNATURES ON FOLLOWING PAGES]

Nonliability of Banks. Borrowers acknowledge and agree that: (a) Any inspections of Collateral made by or through Agent or any Bank are for purposes of administration of the Loan only and Borrowers are not entitled to rely upon the same; (b) By accepting or approving anything required to be observed, performed, fulfilled or given to Agent or the Banks pursuant to the Loan Documents, including any certificate, financial statement, insurance policy or other document, neither Agent nor any Bank shall be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance or approval thereof shall not constitute a warranty or representation to anyone with respect thereto by Agent or Banks; (c) The relationship between Borrowers on the one hand and the Banks and Agent on the other hand and Banks is, and shall be at all times remain, solely that of borrower and lender. Neither lenders; neither Agent nor any Bank has shall under any fiduciary relationship with circumstance be construed to be partners or duty to any Loan Party arising out joint venturers of Borrowers or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Loan Parties, on the one hand, and Agent and the Banks, on the other hand, in connection herewith or therewith is solely that of debtor and creditor. Neither its Affiliates; neither Agent nor any Bank undertakes shall under any circumstance be deemed to be in a relationship of confidence or trust or a fiduciary relationship with Borrowers or their Affiliates, or to owe any fiduciary duty to Borrowers or their Affiliates; neither Agent nor any Bank shall undertake or assume any responsibility or duty to any Loan Party Borrowers or their Affiliates to review select, review, inspect, supervise, pass judgment upon or inform any Loan Party Borrowers or their Affiliates of any matter in connection with their Property, any phase of any Loan Party’s business Collateral held by Agent or operations. Each Borrower agrees, on behalf of itself and each other Loan Party, that neither Agent nor any Bank or the operations of Borrowers or their Affiliates; Borrowers and their Affiliates shall have liability rely entirely upon their own judgment with respect to such matters; and any Loan Party (whether sounding in tortreview, contract inspection, supervision, exercise of judgment or otherwise) for losses suffered by any Loan 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 it is determined in a final, non-appealable judgment by a court supply of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. NO BANK PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, OTHER THAN RESULTING FROM SUCH BANK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NOR SHALL ANY BANK PARTY HAVE ANY LIABILITY WITH RESPECT TO, AND EACH BORROWER ON BEHALF OF ITSELF AND EACH OTHER LOAN PARTY, HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE). Each Borrower acknowledges that it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party. No joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Banks or among the Loan Parties and the Banks.information undertaken or

Nonliability of Banks. Borrower acknowledges and agrees that: (a) Any inspections of any property of Borrower made by or through Agent or Banks are for purposes of administration of the Loan Documents only, and Borrower is not entitled to rely upon the same (whether or not such inspections are at the expense of Borrower); (b) By accepting or approving anything required to be observed, performed, fulfilled or given to Agent or Banks pursuant to the Loan Documents, neither Agent nor Banks shall be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance or approval thereof shall not constitute a warranty or representation to anyone with respect thereto by Agent or Banks; (c) The relationship between Borrowers on the one hand and the Banks Borrower and Agent on the other hand and Banks is, and shall be at all times remain, solely that of borrower and lender. Neither lenders; neither Agent nor any Bank has shall under any circumstance be deemed to be in a relationship of confidence or trust or a fiduciary relationship with Borrower or its Affiliates, or to owe any fiduciary duty to any Loan Party arising out of Borrower or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Loan Parties, on the one hand, and Agent and the Banks, on the other hand, in connection herewith or therewith is solely that of debtor and creditor. Neither its Affiliates; neither Agent nor any Bank undertakes or assumes any responsibility or duty to any Loan Party Borrower or its Affiliates to review select, review, inspect, supervise, pass judgment upon or inform any Loan Party Borrower or its Affiliates of any matter in connection with their property or the operations of Borrower or its Affiliates; Borrower and its Affiliates shall rely entirely upon their own judgment with respect to such matters; and any phase review, inspection, supervision, exercise of judgment or supply of information undertaken or assumed by Agent or any Loan Party’s business or operations. Each Bank in connection with such matters is solely for the protection of Agent and Banks and neither Borrower agrees, on behalf of itself and each other Loan Party, that neither Agent nor any Bank shall have liability other Person is entitled to any Loan Party rely thereon; and (whether sounding in tort, contract or otherwised) for losses suffered by any Loan 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 it is determined in a final, non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. NO NEITHER AGENT NOR ANY BANK PARTY SHALL BE RESPONSIBLE OR LIABLE TO ANY PERSON FOR ANY DAMAGES ARISING LOSS, DAMAGE, LIABILITY OR CLAIM OF ANY KIND RELATING TO INJURY OR DEATH TO PERSONS OR DAMAGE TO PROPERTY CAUSED BY THE ACTIONS, INACTION OR NEGLIGENCE OF BORROWER AND/OR ITS AFFILIATES AND BORROWER HEREBY AGREES TO INDEMNIFY AND HOLD AGENT AND BANKS HARMLESS FROM ANY SUCH LOSS, DAMAGE, LIABILITY OR CLAIM EVEN IF SUCH LOSS, DAMAGE, LIABILITY OR CLAIM ARISES IN WHOLE OR IN PART FROM THE USE BY OTHERS NEGLIGENCE OF ANY INFORMATION SUCH AGENT-RELATED PERSONS OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, OTHER THAN RESULTING FROM SUCH BANK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NOR SHALL ANY BANK PARTY HAVE ANY LIABILITY WITH RESPECT TO, AND EACH BORROWER ON BEHALF OF ITSELF AND EACH OTHER LOAN PARTY, HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE). Each Borrower acknowledges that it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party. No joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Banks or among the Loan Parties and the BanksBANKS.

Nonliability of Banks. Borrowers acknowledge and agree that: (a) Any inspections of Collateral made by or through Agent or any Bank are for purposes of administration of the Loan only and Borrowers are not entitled to rely upon the same; (b) By accepting or approving anything required to be observed, performed, fulfilled or given to Agent or the Banks pursuant to the Loan Documents, including any certificate, financial statement, insurance policy or other document, neither Agent nor any Bank shall be deemed to have warranted or represented the sufficiency, legality, effectiveness or legal effect of the same, or of any term, provision or condition thereof, and such acceptance or approval thereof shall not constitute a warranty or representation to anyone with respect thereto by Agent or the Banks; (c) The relationship between Borrowers on the one hand and the Banks and Agent on the other hand and Banks is, and shall be at all times remain, solely that of borrower and lender. Neither lenders; neither Agent nor any Bank has shall under any fiduciary relationship with circumstance be construed to be partners or duty to any Loan Party arising out joint venturers of Borrowers or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Loan Parties, on the one hand, and Agent and the Banks, on the other hand, in connection herewith or therewith is solely that of debtor and creditor. Neither its Affiliates; neither Agent nor any Bank undertakes shall under any circumstance be deemed to be in a relationship of confidence or trust or a fiduciary relationship with Borrowers or their Affiliates, or to owe any fiduciary duty to Borrowers or their Affiliates; neither Agent nor any Bank shall undertake or assume any responsibility or duty to any Loan Party Borrowers or their Affiliates to review select, review, inspect, supervise, pass judgment upon or inform any Loan Party Borrowers or their Affiliates of any matter in connection with their Property, any phase Collateral held by Agent or any Bank or the operations of Borrowers or their Affiliates; Borrowers and their Affiliates shall rely entirely upon their own judgment with respect to such matters; and any review, inspection, supervision, exercise of judgment or supply of information undertaken or assumed by Agent or Banks in connection with such matters is solely for the protection of Agent and Banks and no Borrower or any other Person is entitled to rely thereon; and (d) Agent and Banks shall not be responsible or liable to any Person for any loss, damage, liability or claim of any Loan Party’s business kind relating to injury or operations. Each Borrower agrees, on behalf of itself and each other Loan Party, that neither Agent nor any Bank shall have liability death to any Loan Party (whether sounding in tort, contract Persons or otherwise) for losses suffered by any Loan Party in connection with, arising out of, or in any way related damage to the transactions contemplated and the relationship established Property caused by the Loan Documentsactions, inaction or negligence of Borrowers and/or their Affiliates and Borrowers hereby indemnify and hold Bank harmless from any actsuch loss, omission damage, liability or event occurring in connection therewith, unless it is determined in a final, non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. NO BANK PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, OTHER THAN RESULTING FROM SUCH BANK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NOR SHALL ANY BANK PARTY HAVE ANY LIABILITY WITH RESPECT TO, AND EACH BORROWER ON BEHALF OF ITSELF AND EACH OTHER LOAN PARTY, HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE). Each Borrower acknowledges that it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party. No joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Banks or among the Loan Parties and the Banksclaim.

Nonliability of Banks. The relationship between Borrowers the Borrower on the one hand and the Banks and the Agent on the other hand shall be solely that of borrower and lender. Neither the Agent nor any Bank has any fiduciary relationship with or duty to the Borrower or any Loan Party Guarantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Loan PartiesBorrower and Guarantors, on the one hand, and the Agent and the Banks, on the other hand, in connection herewith or therewith is solely that of debtor and creditor. Neither the Agent nor any Bank undertakes any responsibility to the Borrower or any Loan Party Guarantor to review or inform the Borrower or any Loan Party Guarantor of any matter in connection with any phase of the Borrower's or any Loan Party’s Guarantor's business or operations. Each The Borrower agrees, on behalf of itself and each other Loan PartyGuarantor, that neither the Agent nor any Bank shall have liability to the Borrower or any Loan Party Guarantor (whether sounding in tort, contract or otherwise) for losses suffered by the Borrower or any Loan Party Guarantor 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 it is determined in a final, final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. NO NEITHER THE AGENT NOR ANY BANK PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, OTHER THAN RESULTING FROM SUCH BANK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NOR SHALL THE AGENT OR ANY BANK PARTY HAVE ANY LIABILITY WITH RESPECT TO, AND EACH THE BORROWER ON BEHALF OF ITSELF AND EACH OTHER LOAN PARTYGUARANTOR, HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE). Each The Borrower acknowledges that it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party. No joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Banks and the Agent or among the Loan Parties Borrower, the Guarantors, the Agent and the BanksBanks BORROWER ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND BORROWER ACKNOWLEDGES AND AGREES THAT (a) EACH OF THE WAIVERS SET FORTH HEREIN, WERE KNOWINGLY AND VOLUNTARILY MADE; (b) THE OBLIGATIONS OF THE BANKS HEREUNDER, INCLUDING THE OBLIGATION TO ADVANCE AND LEND FUNDS TO BORROWER IN ACCORDANCE HEREWITH, WILL BE STRICTLY CONSTRUED AND WILL BE EXPRESSLY SUBJECT TO SUCH BORROWER'S COMPLIANCE IN ALL RESPECTS WITH THE TERMS AND CONDITIONS HEREIN SET FORTH; AND (c) NO REPRESENTATIVE OF ANY BANK HAS WAIVED OR MODIFIED ANY OF THE PROVISIONS OF THIS AGREEMENT AS OF THE DATE HEREOF AND NO SUCH WAIVER OR MODIFICATION FOLLOWING THE DATE HEREOF WILL BE EFFECTIVE UNLESS MADE IN ACCORDANCE WITH SECTION 9.2 HEREOF.