AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
94
SECTION 9.11.
HEADINGS.
ARTICLE AND SECTION HEADINGS AND THE TABLE OF CONTENTS
USED HEREIN ARE FOR CONVENIENCE OF REFERENCE ONLY, ARE NOT PART OF THIS
AGREEMENT AND SHALL NOT AFFECT THE CONSTRUCTION OF, OR BE TAKEN INTO
CONSIDERATION IN INTERPRETING, THIS AGREEMENT.
SECTION 9.12.
CONFIDENTIALITY.
EACH OF THE ADMINISTRATIVE AGENT, THE LENDERS
AND THE ISSUING BANKS AGREES TO MAINTAIN THE CONFIDENTIALITY OF THE INFORMATION
(AS DEFINED BELOW), EXCEPT THAT INFORMATION MAY BE DISCLOSED (A) TO ITS RELATED
PARTIES, INCLUDING ACCOUNTANTS, LEGAL COUNSEL AND OTHER AGENTS AND ADVISORS, IT
BEING UNDERSTOOD THAT THE PERSONS TO WHOM SUCH DISCLOSURE IS MADE WILL BE
INFORMED OF THE CONFIDENTIAL NATURE OF SUCH INFORMATION AND INSTRUCTED TO KEEP
SUCH INFORMATION CONFIDENTIAL, (B) TO THE EXTENT REQUESTED BY ANY REGULATORY
AUTHORITY PURPORTING TO HAVE JURISDICTION OVER IT (INCLUDING ANY SELF-REGULATORY
AUTHORITY, SUCH AS THE NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS), (C) TO
THE EXTENT REQUIRED BY APPLICABLE LAW OR BY ANY SUBPOENA OR SIMILAR LEGAL
PROCESS, (D) TO ANY OTHER PARTY TO THIS AGREEMENT, (E) IN CONNECTION WITH THE
EXERCISE OF ANY REMEDIES UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR THE ENFORCEMENT OF RIGHTS HEREUNDER OR THEREUNDER, (F) SUBJECT TO AN
AGREEMENT CONTAINING CONFIDENTIALITY UNDERTAKINGS SUBSTANTIALLY SIMILAR TO THOSE
OF THIS SECTION, TO (I) ANY ASSIGNEE OF OR PARTICIPANT IN, OR ANY PROSPECTIVE
ASSIGNEE OF OR PARTICIPANT IN, ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS
AGREEMENT OR (II) ANY ACTUAL OR PROSPECTIVE COUNTERPARTY (OR ITS RELATED
PARTIES) TO ANY SWAP OR DERIVATIVE TRANSACTION RELATING TO THE BORROWER OR ANY
SUBSIDIARY AND ITS OBLIGATIONS, (G) WITH THE CONSENT OF THE BORROWER OR (H) TO
THE EXTENT SUCH INFORMATION (I) BECOMES PUBLICLY AVAILABLE OTHER THAN AS A
RESULT OF A BREACH OF THIS SECTION OR (II) BECOMES AVAILABLE TO THE
ADMINISTRATIVE AGENT, ANY LENDER, ANY ISSUING BANK OR ANY AFFILIATE OF ANY OF
THE FOREGOING ON A NONCONFIDENTIAL BASIS FROM A SOURCE OTHER THAN THE BORROWER.
FOR PURPOSES OF THIS SECTION, "INFORMATION" MEANS ALL INFORMATION RECEIVED FROM
THE BORROWER RELATING TO THE BORROWER OR ANY SUBSIDIARY OR THEIR BUSINESSES,
OTHER THAN ANY SUCH INFORMATION THAT IS AVAILABLE TO THE ADMINISTRATIVE AGENT,
ANY LENDER OR ANY ISSUING BANK ON A NONCONFIDENTIAL BASIS PRIOR TO DISCLOSURE BY
THE BORROWER; PROVIDED THAT, IN THE CASE OF INFORMATION RECEIVED FROM THE
BORROWER AFTER THE DATE HEREOF, SUCH INFORMATION IS CLEARLY IDENTIFIED AT THE
TIME OF DELIVERY AS