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
43
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 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 FOIL, AND THE
RELEVANT STATUTORY LAW AND REGULATIONS, CAN BE FOUND AT THE WEBSITE FOR THE
COMMITTEE ON OPEN GOVERNMENT () AND
LENDER'S REGULATIONS, PART 501.
11.12
Assignment of Rights.
Borrower acknowledges and
understands that Lender may, subject to Section 11.7, sell and assign all or
part of its interest hereunder and under the Loan Documents to any Person or
entity with assets valued at not less than $500,000,000 (an "Assignee").
After
such assignment the term "Lender" as used in the Loan Documents shall mean and
include such Assignee, and such Assignee shall be vested with all rights, powers
and remedies of Lender hereunder with respect to the interest so assigned; but
with respect to any such interest not so transferred, Lender shall retain all
rights, powers and remedies hereby given.
No such assignment by Lender shall
relieve Borrower of any of its obligations hereunder.
Lender agrees that in the
event of any transfer by it of the Note(s) (if any), it will endorse thereon a
notation as to the portion of the principal of the Note(s), which shall have
been paid at the time of such transfer and as to the date to which interest
shall have been last paid thereon.
Lender, acting solely for this purpose as an
agent of the Borrower, shall maintain a register for the recordation of the
names and addresses of the Lenders, and the Term Commitments of, and principal
amounts (and stated interest) of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register").
The entries in the Register
shall be conclusive absent manifest error, and the Borrower and
Lender shall
treat