consent of the Borrower, (h) to the CUSIP Service
Bureau or any similar agency in connection with the issuance and monitoring of
CUSIP numbers with respect to the facilities created hereunder or (i) to the
extent such Information (i) becomes publicly available other than as a result of
a breach of this Section or (ii) becomes available to the Administrative Agent,
any Issuing Bank or any Lender on a non-confidential basis from a source other
than the Borrower.
For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to the Administrative Agent,
any Issuing Bank or any Lender on a non-confidential basis prior to disclosure
by the Borrower and other than information pertaining to this Agreement
routinely provided by arrangers to data service providers, including league
table providers, that serve the lending industry.
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.
73
SECTION 9.13
Material Non-Public Information.
(a)
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN
SECTION 9.12(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL
NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND
ITS 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.
(b)
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
BORROWER AND ITS RELATED PARTIES OR ITS 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.
SECTION 9.14
Interest Rate Limitation.
Notwithstanding anything herein to
the contrary, in no event whatsoever shall the amount contracted for, charged,
paid or otherwise agreed to be paid to or received by the Administrative Agent
or any Lender for the use, forbearance or detention of money under this
Agreement or any Loan Document or otherwise exceed the maximum non-usurious rate
pursuant to applicable law (the "Maximum Rate"), and if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts
which are treated as interest on such Loan under applicable law (collectively
the "Charges"), shall exceed the Maximum Rate, the rate of interest payable in
respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited