BKS » Topics » Arm’s Length Transactions

This excerpt taken from the BKS 8-K filed Aug 10, 2009.
Arm’s Length Transactions. In connection with all aspects of each transaction contemplated by this Commitment Letter, you acknowledge and agree, and acknowledge your affiliates’ understanding, that: (i) the Financing and the Senior Credit Facility and any related arranging or other services described in this letter is an arm’s-length commercial transaction between you and your affiliates, on the one hand, and the Engagement Parties, on the other hand, and you are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the Financing and the Senior Credit Facility and such other services; (ii) in connection with the process leading to such transaction, except as otherwise agreed by the Borrower and any Engagement Party in writing, each of the Engagement Parties is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for you or any of your affiliates, stockholders, creditors or employees or any other party; (iii) unless otherwise agreed by the Borrower and any Engagement Party in writing, no Engagement Party has assumed or will assume an advisory responsibility in your or your affiliates’ favor with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether any Engagement Party has advised or is currently advising you or your affiliates on other matters); (iv) no Engagement Party has assumed or will assume an agency responsibility (except as may otherwise be agreed in writing by the Borrower and any Engagement Party) or fiduciary responsibility in your or your affiliates’ favor with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether any Engagement Party has advised or is currently advising you or your affiliates


 
August 7, 2009
Commitment Letter, Page 6


on other matters); (v) no Engagement Party has any obligation to you or your affiliates with respect to the Transaction except those obligations expressly set forth in this letter or in any other express writing executed and delivered by such Engagement Party and the Borrower; (vi) the Engagement Parties and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from yours and your affiliates and the Engagement Parties have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (vii) the Engagement Parties have not provided any legal, accounting, regulatory or tax advice with respect to any aspect of the Transaction and you have consulted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate. You hereby waive and release, to the fullest extent permitted by law, any claims that you may have against any Engagement Party with respect to any breach or alleged breach of agency (except for any agency responsibilities otherwise agreed by the Borrower and any Engagement Party in writing) or fiduciary duty relating to the Transaction.

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