or on behalf
of the Borrower (other than from a source actually known by such party to be
bound by confidentiality obligations).
Any Person required to maintain the
confidentiality of Information as provided in this Section 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.
(b) EACH LENDER ACKNOWLEDGES THAT CONFIDENTIAL INFORMATION AS DEFINED IN SECTION
10.14 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC
INFORMATION CONCERNING THE LOAN PARTIES AND THEIR AFFILIATES OR THEIR RESPECTIVE
SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES
94
REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE
SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY
THE LOAN PARTIES OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY
CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE OTHER LOAN
PARTIES AND THEIR AFFILIATES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH
LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE DELIVERED TO THE ADMINISTRATIVE
AGENT A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND
APPLICABLE LAW.
Section 10.15. Amendment and Restatement
The parties to this Credit Agreement agree that, upon the execution and delivery
of this Credit Agreement by each party hereto, the terms and provisions of the
Existing Credit Agreement and the Existing Subsidiary Guaranties shall each be
amended, superseded, restated and consolidated in their entirety without a
breach in continuity by the terms and provisions of this Credit Agreement and,
unless expressly stated to the contrary, each reference to the Existing Credit
Agreement or any of the Existing Subsidiary Guaranties in any of the Loan
Documents or any other document, instrument or agreement delivered in connection
therewith shall mean and be a reference to this Credit Agreement.
This Credit
Agreement is not intended to and shall not constitute a novation of the Existing
Credit Agreement and the Existing Subsidiary Guaranties or the obligations and
liabilities thereunder.
ARTICLE 11
GUARANTEE
Section 11.1. Guarantee; Fraudulent Transfer, Etc.; Contribution
(a) Guarantee.
Each Guarantor unconditionally guarantees, jointly with the
other Guarantors and severally, as a primary obligor and not merely as a surety,
the Obligations.
Each Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation.
(b) Guarantee of Payment. Each Guarantor further agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be