accordance with its Applicable Percentage of each Revolving Borrowing and
participation."
Section 1.26
Amendment to Section 11.07.
Section 11.07 of the Credit
Agreement is hereby amended by inserting new clauses (e) and (f) which shall
read as follows:
"(e)
FOIL. NOTWITHSTANDING ANY PROVISON OF THIS SECTION 11.07 TO THE
CONTRARY, THE LOAN PARTIES ACKNOWLEDGE AND AGREE THAT ALL INFORMATION, IN ANY
FORMAT, SUBMITTED TO NYGB SHALL BE SUBJECT TO AND TREATED IN ACCORDANCE WITH THE
NYS FREEDOM OF INFORMATION LAW ("FOIL," PUBLIC OFFICERS LAW, ARTICLE 6).
PURSUANT TO FOIL, NYGB IS REQUIRED TO MAKE AVAILABLE TO THE PUBLIC, UPON
REQUEST, RECORDS OR PORTIONS THEREOF WHICH IT POSSESSES, UNLESS THAT INFORMATION
IS STATUTORILY EXEMPT FROM DISCLOSURE. THEREFORE, UNLESS THIS AGREEMENT
SPECIFICALLY REQUIRES OTHERWISE, THE LOAN PARTIES SHOULD SUBMIT INFORMATION TO
NYGB IN A NONCONFIDENTIAL, NONPROPRIETARY FORMAT. FOIL DOES PROVIDE THAT NYGB
MAY DENY ACCESS TO RECORDS OR
18
PORTIONS THEREOF THAT "ARE TRADE SECRETS OR ARE SUBMITTED TO AN AGENCY BY A
COMMERCIAL ENTERPRISE OR DERIVED FROM INFORMATION OBTAINED FROM A COMMERCIAL
ENTERPRISE AND WHICH IF DISCLOSED WOULD CAUSE SUBSTANTIAL INJURY TO THE
COMPETITIVE POSITION OF THE SUBJECT ENTERPRISE." SEE PUBLIC OFFICERS LAW, §
87(2)(D). ACCORDINGLY, IF THIS AGREEMENT SPECIFICALLY REQUIRES SUBMISSION OF
INFORMATION IN A FORMAT THE LOAN PARTIES CONSIDER A PROPRIETARY AND/OR
CONFIDENTIAL TRADE SECRET, THE LOAN PARTIES SHALL FULLY IDENTIFY AND PLAINLY
LABEL THE INFORMATION "CONFIDENTIAL" OR "PROPRIETARY" AT THE TIME OF DISCLOSURE.
BY SO MARKING SUCH INFORMATION, THE LOAN PARTIES REPRESENT THAT THE INFORMATION
HAS ACTUAL OR POTENTIAL SPECIFIC COMMERCIAL OR COMPETITIVE VALUE TO THE
COMPETITORS OF THE LOAN PARTIES. WITHOUT LIMITATION, INFORMATION WILL NOT BE
CONSIDERED CONFIDENTIAL OR PROPRIETARY IF IT IS OR HAS BEEN (I) GENERALLY KNOWN
OR AVAILABLE FROM OTHER SOURCES WITHOUT OBLIGATION CONCERNING ITS
CONFIDENTIALITY; (II) MADE AVAILABLE BY THE OWNER TO OTHERS WITHOUT OBLIGATION
CONCERNING ITS CONFIDENTIALITY; OR (III) ALREADY AVAILABLE TO NYGB WITHOUT
OBLIGATION CONCERNING ITS CONFIDENTIALITY. IN THE EVENT OF A FOIL REQUEST, IT IS
NYGB'S POLICY TO CONSIDER RECORDS AS MARKED ABOVE PURSUANT TO THE TRADE SECRET
EXEMPTION PROCEDURE SET FORTH IN 21 NEW YORK CODES RULES & REGULATIONS §501.6
AND ANY OTHER APPLICABLE LAW OR REGULATION. HOWEVER, NYGB CANNOT GUARANTEE THE
CONFIDENTIALITY OF ANY INFORMATION SUBMITTED. MORE INFORMATION ON FOIL, AND THE
RELEVANT STATUTORY LAW AND REGULATIONS, CAN BE FOUND AT THE WEBSITE FOR THE
COMMITTEE ON OPEN GOVERNMENT () AND
NYGB'S REGULATIONS, PART 501.
(f)
PUBLICITY. THE BORROWER HEREBY AGREES THAT ANY LENDER OR ANY OF ITS
AFFILIATES MAY (I) AGGREGATE AND ANONYMIZE DATA PROVIDED TO SUCH LENDER FOR USE
AND PUBLIC DISCLOSURE IN REPORTS OR IN ACCORDANCE WITH SUCH LENDER'S REGULATORY
REQUIREMENTS, (II) DISCLOSE A GENERAL DESCRIPTION OF TRANSACTIONS ARISING UNDER
THE LOAN DOCUMENTS FOR ADVERTISING, MARKETING, REGULATORY OR OTHER SIMILAR
PURPOSES AND (III) USE THE BORROWER'S NAME, LOGO OR OTHER INDICIA GERMANE TO
SUCH PARTY IN CONNECTION WITH SUCH ADVERTISING, MARKETING OR OTHER SIMILAR
PURPOSES, SO LONG AS, IN EACH CASE DESCIBED IN CLAUSES (II) AND (III), THE
BORROWER HAS BEEN PROVIDED THE OPPORTUNITY