Lender under this Agreement; provided that such right of
set-off shall be subject to the obligation of each participant to share with
each Lender, and each Lender agrees to share with each participant.
The Company
also agrees that each participant shall be entitled to the benefits of
Section 7.6 or 8 as if it were a Lender (provided that on the date of the
participation no participant shall be entitled to any greater compensation
pursuant to Section 7.6 or 8 than would have been paid to the Lender on such
date if no participation had been sold.
16.8
GOVERNING LAW.
THIS AGREEMENT AND EACH NOTE SHALL BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
66
16.9
CONFIDENTIALITY.
EACH OF AGENT AND EACH LENDER AGREES TO USE
COMMERCIALLY REASONABLE EFFORTS (EQUIVALENT TO THE EFFORTS EACH OF AGENT AND
EACH LENDER APPLIES TO MAINTAIN THE CONFIDENTIALITY OF ITS OWN CONFIDENTIAL
INFORMATION) TO MAINTAIN AS CONFIDENTIAL ALL INFORMATION PROVIDED TO IT BY ANY
LOAN PARTY AND DESIGNATED AS CONFIDENTIAL, EXCEPT THAT AGENT AND EACH LENDER MAY
DISCLOSE SUCH INFORMATION (A) TO PERSONS EMPLOYED OR ENGAGED BY AGENT OR SUCH
LENDER IN EVALUATING, APPROVING, STRUCTURING OR ADMINISTERING THE LOANS AND THE
COMMITMENT; (B) TO ANY ASSIGNEE OR PARTICIPANT OR POTENTIAL ASSIGNEE OR
PARTICIPANT THAT HAS AGREED TO COMPLY WITH THE COVENANT CONTAINED IN THIS
SECTION 16.9 (AND ANY SUCH ASSIGNEE OR PARTICIPANT OR POTENTIAL ASSIGNEE OR
PARTICIPANT MAY DISCLOSE SUCH INFORMATION TO PERSONS EMPLOYED OR ENGAGED BY THEM
AS DESCRIBED IN CLAUSE (A) ABOVE); (C) AS REQUIRED OR REQUESTED BY ANY FEDERAL
OR STATE REGULATORY AUTHORITY OR EXAMINER, OR ANY INSURANCE INDUSTRY
ASSOCIATION, OR AS REASONABLY BELIEVED BY AGENT OR SUCH LENDER TO BE COMPELLED
BY ANY COURT DECREE, SUBPOENA OR LEGAL OR ADMINISTRATIVE ORDER OR PROCESS;
(D) AS, ON THE ADVICE OF AGENT'S OR SUCH LENDER'S COUNSEL, IS REQUIRED BY LAW;
(E) IN CONNECTION WITH THE EXERCISE OF ANY RIGHT OR REMEDY UNDER THE LOAN
DOCUMENTS OR IN CONNECTION WITH ANY LITIGATION TO WHICH AGENT OR SUCH LENDER IS
A PARTY; (F) TO ANY NATIONALLY RECOGNIZED RATING AGENCY THAT REQUIRES ACCESS TO
INFORMATION ABOUT AGENT OR SUCH LENDER'S INVESTMENT PORTFOLIO IN CONNECTION WITH
RATINGS ISSUED WITH RESPECT TO THE LENDER; (G) TO ANY AFFILIATE OF AGENT OR SUCH
LENDER WHO MAY PROVIDE BANK PRODUCTS TO THE LOAN PARTIES; OR (H) THAT CEASES TO
BE CONFIDENTIAL THROUGH NO FAULT OF AGENT OR SUCH LENDER.
NOTWITHSTANDING THE
FOREGOING, THE COMPANY CONSENTS TO THE PUBLICATION BY AGENT AND EACH LENDER OF A
TOMBSTONE OR SIMILAR ADVERTISING MATERIAL RELATING TO THE FINANCING TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AND EACH OF AGENT AND EACH LENDER RESERVES THE
RIGHT TO PROVIDE TO INDUSTRY TRADE ORGANIZATIONS INFORMATION NECESSARY AND
CUSTOMARY FOR INCLUSION IN LEAGUE TABLE MEASUREMENTS.
NOTWITHSTANDING ANYTHING
IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO THE CONTRARY, ANY INFORMATION
WITH