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, OR SOLELY BY REASON OF THE BREACH OF THE
EXPRESS TERMS OF THE LOAN DOCUMENTS BY, THE PARTY FROM WHICH RECOVERY IS
SOUGHT.
NEITHER THE AGENT, THE ARRANGER, THE LC ISSUERS NOR ANY LENDER SHALL
HAVE ANY LIABILITY WITH RESPECT TO, AND EACH OF THE PARENT AND THE BORROWER
HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES SUFFERED BY THE PARENT, THE BORROWER OR ANY
SUBSIDIARY IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO THE LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
9.11.
CONFIDENTIALITY.
EACH LENDER AGREES TO HOLD ANY CONFIDENTIAL
INFORMATION WHICH IT MAY RECEIVE FROM THE BORROWER PURSUANT TO THIS AGREEMENT IN
CONFIDENCE IN ACCORDANCE WITH ITS RESPECTIVE CUSTOMARY PRACTICES (BUT IN ANY
EVENT IN ACCORDANCE WITH REASONABLE CONFIDENTIALITY PRACTICES), EXCEPT FOR
DISCLOSURE (I) TO ITS AFFILIATES AND TO OTHER LENDERS AND THEIR RESPECTIVE
AFFILIATES, FOR USE SOLELY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY, (II) TO LEGAL COUNSEL, ACCOUNTANTS, AND OTHER PROFESSIONAL ADVISORS TO
SUCH LENDER OR TO A TRANSFEREE WHO ARE EXPECTED TO BE INVOLVED IN THE EVALUATION
OF SUCH INFORMATION IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, IN
EACH CASE WHICH HAVE BEEN INFORMED AS TO THE CONFIDENTIAL NATURE OF SUCH
INFORMATION, (III) TO REGULATORY OFFICIALS HAVING JURISDICTION OVER IT, (IV) TO
ANY PERSON AS REQUIRED BY LAW, REGULATION, OR LEGAL PROCESS IN RESPECT OF WHICH,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUCH LENDER SHALL HAVE USED
COMMERCIALLY REASONABLE EFFORTS TO GIVE THE BORROWER REASONABLE PRIOR NOTICE AND
THE OPPORTUNITY TO CONTEST SUCH DISCLOSURE, (V) OF INFORMATION THAT PRESENTLY OR
HEREAFTER BECOMES AVAILABLE TO SUCH LENDER ON A NON-CONFIDENTIAL BASIS FROM A
SOURCE OTHER THAN THE PARENT AND ITS SUBSIDIARIES AND OTHER THAN AS A RESULT OF
DISCLOSURE NOT OTHERWISE PERMITTED BY THIS SECTION 9.11, (VI) TO ANY PERSON IN
CONNECTION WITH ANY LEGAL PROCEEDING TO WHICH SUCH LENDER IS A PARTY, (VII) TO
SUCH LENDER'S DIRECT OR INDIRECT CONTRACTUAL COUNTERPARTIES IN CREDIT DERIVATIVE
TRANSACTIONS OR TO LEGAL COUNSEL, ACCOUNTANTS AND OTHER PROFESSIONAL ADVISORS TO
SUCH COUNTERPARTIES, IN EACH CASE WHICH HAVE BEEN INFORMED AS TO THE
CONFIDENTIAL NATURE OF SUCH INFORMATION AND AGREE TO BE BOUND BY THIS
SECTION 9.11 OR OTHER SIMILAR TERMS OF CONFIDENTIALITY, (VIII) PERMITTED BY
SECTION 12.4 AND (IX) TO RATING AGENCIES IF REQUESTED OR REQUIRED BY SUCH
AGENCIES IN CONNECTION WITH A RATING RELATING TO THE CREDIT EXTENSIONS
HEREUNDER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN OR IN ANY
OTHER
73
AGREEMENT TO WHICH THE PARTIES HERETO ARE PARTIES OR BY WHICH THEY ARE BOUND,
THE OBLIGATIONS OF CONFIDENTIALITY CONTAINED HEREIN AND THEREIN (THE
"CONFIDENTIALITY OBLIGATIONS"), AS THEY RELATE TO THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT, SHALL NOT APPLY TO THE "TAX STRUCTURE" OR "TAX TREATMENT" OF