this Section 10.12, 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 (but excluding any Disqualified
Institution) or (ii) any actual or prospective direct or indirect counterparty
(or its advisors) to any swap or derivative transaction relating to any Loan
Party and its obligations, (g) with the written consent of the Borrower (h) to
the extent such Information becomes publicly available other than as a result of
a breach of this Section 10.12 or (i) to any rating agency when required by it,
provided that, prior to any disclosure, such rating agency shall undertake to
preserve the confidentiality of any confidential Information relating to the
Loan Parties received by it from such Person.
In addition, the Administrative
Agent and the Lenders may disclose the existence of this Agreement and any
customary information about this Agreement required for league table or similar
credit.
For the purposes of this Section, "Information" means all information
received from the Borrower relating to the Borrower or its business.
Any Person
required to maintain the confidentiality of Information as provided in this
Section 10.12 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.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED
IN THIS SECTION FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL
NON-PUBLIC INFORMATION CONCERNING THE LOAN PARTIES AND THEIR RELATED PARTIES OR
THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES 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.
ALL
INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE
BORROWER 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 LOAN PARTIES AND THEIR RELATED
PARTIES OR THEIR RESPECTIVE SECURITIES.
ACCORDINGLY, EACH LENDER REPRESENTS TO
THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT
MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE
PROCEDURES AND APPLICABLE LAW.
Notwithstanding anything in this Section 10.12
to the contrary, to the extent any legal counsel, independent auditors,
professionals and other experts or agents of a Lender receives any Information,
such legal counsel, independent auditors, professionals and other experts or
agents shall sign an undertaking that they will treat such Information as
confidential (subject to certain customary exceptions) unless there are
established and enforceable codes of professional conduct governing the
confidential treatment of such Information so received.
CREDIT AGREEMENT, Page 96
Section 10.13.
Maximum Interest Rate.
(a)
Limitation to Maximum Rate; Recapture.
No interest rate specified
in any Loan Document shall at any time exceed the