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.
NEITHER THE ADMINISTRATIVE AGENT, THE ARRANGERS, THE LC ISSUER NOR ANY LENDER
SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND THE BORROWER HEREBY WAIVES,
RELEASES AND AGREES NOT TO SUE FOR, ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES SUFFERED BY THE BORROWER IN CONNECTION WITH, ARISING OUT OF, OR
IN ANY WAY RELATED TO THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY.
9.11.
CONFIDENTIALITY.
THE ADMINISTRATIVE AGENT AND EACH LENDER AGREES
TO HOLD ANY CONFIDENTIAL INFORMATION WHICH IT MAY RECEIVE FROM THE BORROWER IN
CONNECTION WITH THIS AGREEMENT IN CONFIDENCE, EXCEPT FOR DISCLOSURE (I) TO ITS
AFFILIATES AND TO THE ADMINISTRATIVE AGENT AND ANY OTHER LENDER AND THEIR
RESPECTIVE AFFILIATES, (II) TO LEGAL COUNSEL, ACCOUNTANTS, AND OTHER
PROFESSIONAL ADVISORS TO SUCH LENDER OR TO A TRANSFEREE, (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 AS REQUIRED IN CONNECTION WITH
ANY LEGAL PROCEEDING TO WHICH IT IS A PARTY, (VI) TO ITS DIRECT OR INDIRECT
CONTRACTUAL COUNTERPARTIES IN SWAP AGREEMENTS OR TO LEGAL COUNSEL, ACCOUNTANTS
AND OTHER PROFESSIONAL ADVISORS TO SUCH COUNTERPARTIES, (VII) PERMITTED BY
SECTION 12.4, AND (VIII) TO RATING AGENCIES IF REQUESTED OR REQUIRED BY SUCH
AGENCIES IN CONNECTION WITH A RATING RELATING TO THE CREDIT EXTENSIONS
HEREUNDER.
WITHOUT LIMITING SECTION 9.4, THE BORROWER AGREES THAT THE TERMS OF
THIS SECTION 9.11 SHALL SET FORTH THE ENTIRE AGREEMENT BETWEEN THE BORROWER AND
EACH LENDER (INCLUDING THE ADMINISTRATIVE AGENT) WITH RESPECT TO ANY
CONFIDENTIAL INFORMATION PREVIOUSLY OR HEREAFTER RECEIVED BY SUCH LENDER IN
CONNECTION WITH THIS AGREEMENT, AND THIS SECTION 9.11 SHALL SUPERSEDE ANY AND
ALL PRIOR CONFIDENTIALITY AGREEMENTS ENTERED INTO BY SUCH LENDER WITH
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RESPECT TO SUCH CONFIDENTIAL INFORMATION.
NOTWITHSTANDING ANYTHING HEREIN TO
THE CONTRARY, CONFIDENTIAL INFORMATION SHALL NOT INCLUDE, AND EACH PARTY HERETO
(AND EACH EMPLOYEE, REPRESENTATIVE OR OTHER AGENT OF ANY PARTY HERETO) MAY
DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY KIND, THE U.S.
FEDERAL INCOME TAX TREATMENT AND U.S. FEDERAL INCOME TAX STRUCTURE OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND ALL MATERIALS OF ANY KIND (INCLUDING
OPINIONS OR OTHER TAX ANALYSES) THAT ARE OR HAVE BEEN PROVIDED TO SUCH PARTY
RELATING TO SUCH TAX TREATMENT OR TAX STRUCTURE, AND IT IS HEREBY CONFIRMED THAT
EACH PARTY HERETO HAS BEEN AUTHORIZED TO MAKE SUCH DISCLOSURES SINCE THE
COMMENCEMENT OF DISCUSSIONS REGARDING THE TRANSACTIONS CONTEMPLATED HEREBY.
9.12.
LENDERS NOT UTILIZING PLAN ASSETS.
EACH LENDER REPRESENTS AND
WARRANTS THAT NONE OF THE CONSIDERATION USED BY SUCH
LENDER TO MAKE ITS CREDIT
EXTENSIONS CONSTITUTES FOR ANY PURPOSE OF ERISA OR SECTION 4975 OF THE CODE
ASSETS OF ANY "PLAN" AS DEFINED IN SECTION 3(3) OF ERISA OR