required by
law or order of any Governmental Authority submitted to any governmental
authority having or claiming to have jurisdiction over Lender; (d) if required
or appropriate in response to any summons or subpoena or in connection with any
litigation, to the extent permitted or deemed advisable by Lender's counsel;
I to comply with any legal requirement or law applicable to Lender; (f) to the
extent reasonably necessary in connection with the exercise of any right or
remedy under any Loan Document, including Lender's sale, lease, or other
disposition of Collateral after the occurrence of an Event of Default; (g) to
any participant or assignee of Lender or any prospective participant or
assignee; provided, that such participant or assignee or prospective participant
or assignee agrees in writing to be bound by this Section prior to disclosure;
or (h) otherwise with the prior written consent of Borrower; provided, that any
disclosure made in violation of this Agreement shall not affect the obligations
of Borrower or any of its Affiliates or any guarantor under this Agreement or
the other Loan Documents.
NOTWITHSTANDING ANY PROVISION OF THIS SECTION 11.11
TO THE CONTRARY, BORROWER ACKNOWLEDGES AND AGREES THAT ALL INFORMATION, IN ANY
FORMAT, SUBMITTED TO LENDER SHALL BE SUBJECT TO AND TREATED IN ACCORDANCE WITH
THE NYS FREEDOM OF INFORMATION LAW ("FOIL," PUBLIC OFFICERS LAW, SECTION 6).
PURSUANT TO FOIL, LENDER 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 THE AGREEMENT
SPECIFICALLY REQUIRES OTHERWISE, BORROWER SHOULD SUBMIT INFORMATION TO LENDER IN
A NON-CONFIDENTIAL, NON-PROPRIETARY FORMAT. FOIL DOES PROVIDE THAT LENDER
MAY DENY ACCESS TO RECORDS OR 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 BORROWER CONSIDERS A PROPRIETARY
AND/OR CONFIDENTIAL TRADE SECRET, BORROWER SHALL FULLY IDENTIFY AND PLAINLY
LABEL THE INFORMATION "CONFIDENTIAL" OR "PROPRIETARY" AT THE TIME OF DISCLOSURE.
BY SO MARKING SUCH INFORMATION, BORROWER REPRESENTS THAT THE INFORMATION HAS
ACTUAL OR POTENTIAL SPECIFIC COMMERCIAL OR COMPETITIVE VALUE TO THE COMPETITORS
OF BORROWER. WITHOUT LIMITATION, INFORMATION WILL NOT BE CONSIDERED CONFIDENTIAL
OR PROPRIETARY IF IT IS OR HAS BEEN (I) GENERALLY KNOWN OR
45
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 LENDER WITHOUT OBLIGATION
CONCERNING ITS CONFIDENTIALITY. IN THE EVENT OF A FOIL REQUEST, IT IS LENDER'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, LENDER CANNOT GUARANTEE THE
CONFIDENTIALITY OF ANY INFORMATION SUBMITTED. MORE INFORMATION ON