TO THE EXTENT REQUIRED BY APPLICABLE
LAWS OR REGULATIONS 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 HEREUNDER 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 PROVISIONS SUBSTANTIALLY THE SAME AS
THOSE OF THIS SECTION 11.12, 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
ADVISORS) TO ANY SWAP OR DERIVATIVE TRANSACTION RELATING TO A BORROWER AND ITS
OBLIGATIONS, (G) WITH THE CONSENT OF BORROWERS OR (H) TO THE EXTENT SUCH
INFORMATION (I) IS PUBLICLY AVAILABLE AT THE TIME OF DISCLOSURE OR BECOMES
PUBLICLY AVAILABLE OTHER THAN AS A RESULT OF A BREACH OF THIS SECTION 11.12 OR
(II) BECOMES AVAILABLE TO THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE
ISSUING BANK OR ANY LENDER ON A NONCONFIDENTIAL BASIS FROM A SOURCE OTHER THAN
BORROWERS OR ANY SUBSIDIARY.
FOR THE PURPOSES OF THIS SECTION 11.12,
"INFORMATION" MEANS ALL INFORMATION RECEIVED FROM BORROWERS OR ANY SUBSIDIARY
RELATING TO BORROWERS OR ANY SUBSIDIARY OR ITS BUSINESS, OTHER THAN ANY SUCH
INFORMATION THAT IS AVAILABLE TO THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR
ANY LENDER ON A NONCONFIDENTIAL BASIS PRIOR TO DISCLOSURE BY BORROWERS OR ANY
SUBSIDIARY; PROVIDED THAT, IN THE CASE OF INFORMATION RECEIVED FROM A BORROWER
OR ANY SUBSIDIARY AFTER THE DATE HEREOF, SUCH INFORMATION IS CLEARLY IDENTIFIED
AT THE TIME OF DELIVERY AS CONFIDENTIAL.
ANY PERSON REQUIRED TO MAINTAIN THE
CONFIDENTIALITY OF INFORMATION AS PROVIDED IN THIS SECTION 11.12 SHALL BE
CONSIDERED TO HAVE COMPLIED WITH ITS OBLIGATION TO DO SO IF SUCH PERSON HAS
EXERCISED THE SAME DEGREE OF CARE TO MAINTAIN THE CONFIDENTIALITY OF SUCH
INFORMATION AS SUCH PERSON WOULD ACCORD TO ITS OWN CONFIDENTIAL INFORMATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN OR IN ANY OTHER
WRITTEN OR ORAL UNDERSTANDING OR AGREEMENT TO WHICH THE PARTIES HERETO ARE
PARTIES OR BY WHICH THEY ARE BOUND, THE PARTIES ACKNOWLEDGE AND AGREE THAT
(I) ANY OBLIGATIONS OF CONFIDENTIALITY CONTAINED HEREIN AND THEREIN DO NOT APPLY
AND HAVE NOT APPLIED FROM THE COMMENCEMENT OF DISCUSSIONS BETWEEN THE PARTIES TO
THE TAX TREATMENT AND TAX STRUCTURE OF THE
126
TRANSACTIONS (AND ANY RELATED TRANSACTIONS OR ARRANGEMENTS), AND (II) EACH PARTY
(AND EACH OF ITS EMPLOYEES, REPRESENTATIVES, OR OTHER AGENTS) MAY DISCLOSE TO
ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY KIND, THE TAX TREATMENT AND TAX
STRUCTURE OF THE TRANSACTIONS AND ALL MATERIALS OF ANY KIND (INCLUDING OPINIONS
OR OTHER TAX ANALYSES) THAT ARE PROVIDED TO SUCH PARTY RELATING TO SUCH TAX
TREATMENT AND TAX STRUCTURE, ALL WITHIN THE MEANING OF TREASURY REGULATION
SECTION 1.6011-4; PROVIDED, HOWEVER, THAT EACH PARTY RECOGNIZES THAT THE
PRIVILEGE EACH HAS TO MAINTAIN, IN ITS SOLE DISCRETION, THE CONFIDENTIALITY OF A
COMMUNICATION