ARTICLE 9 IS
THEN IN EFFECT IN THAT JURISDICTION.
5
12.
THE LENDER AGREES THAT IT WILL NOT DISCLOSE WITHOUT THE PRIOR
CONSENT OF THE BORROWER AND THE GUARANTOR (OTHER THAN TO ITS EMPLOYEES,
AFFILIATES, AUDITORS, COUNSEL, OR OTHER LENDERS HEREUNDER) ANY INFORMATION WITH
RESPECT TO THE BORROWER AND/OR GUARANTOR WHICH IS FURNISHED PURSUANT TO THIS
AGREEMENT, ANY OTHER DOCUMENTS CONTEMPLATED BY OR REFERRED TO HEREIN OR THEREIN
AND WHICH IS DESIGNATED BY THE BORROWER AND/OR GUARANTOR TO THE LENDER IN
WRITING AS CONFIDENTIAL OR AS TO WHICH IT IS OTHERWISE REASONABLY CLEAR SUCH
INFORMATION IS NOT PUBLIC EXCEPT THAT LENDER MAY DISCLOSE ANY SUCH INFORMATION
(A) AS HAS BECOME GENERALLY AVAILABLE TO THE PUBLIC OTHER THAN BY A BREACH OF
THIS SECTION 12; (B) AS MAY BE REQUIRED OR APPROPRIATE IN ANY REPORT, STATEMENT,
OR TESTIMONY SUBMITTED TO ANY MUNICIPAL, STATE OR FEDERAL REGULATORY BODY HAVING
OR CLAIMING TO HAVE JURISDICTION OVER LENDER OR TO THE NATIONAL ASSOCIATION OF
INSURANCE COMMISSIONERS, THE FEDERAL RESERVE BOARD, THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE OCC OR ANY SIMILAR REGULATORY ORGANIZATIONS (WHETHER
IN THE UNITED STATES OR ELSEWHERE) OR THEIR SUCCESSORS; (C) AS MAY BE REQUIRED
OR APPROPRIATE IN RESPONSE TO ANY SUMMONS OR SUBPOENA OR ANY LAW, ORDER,
REGULATION OR RULING APPLICATION TO LENDER; (D) TO ANY PROSPECTIVE PARTICIPANT
OR ASSIGNEE IN CONNECTION WITH ANY CONTEMPLATED TRANSFER PURSUANT TO SECTION 8
PROVIDED THAT SUCH PROSPECTIVE TRANSFEREE SHALL HAVE BEEN MADE AWARE OF THIS
SECTION 12 AND SHALL HAVE AGREED IN WRITING TO BE BOUND BY ITS PROVISIONS AS IF
IT WERE A PARTY TO THIS AGREEMENT; OR (E) TO LENDER'S REPRESENTATIVES (WHICH
SHALL INCLUDE, WITHOUT LIMITATION, ANY OTHER BANK AND COMPANY AFFILIATED WITH
LENDER OR THE PARENT OF LENDER), IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT
SUCH REPRESENTATIVES SHALL BE INFORMED OF THE CONFIDENTIAL NATURE OF THE
INFORMATION, SHALL BE REQUIRED BY SUCH LENDER TO TREAT THE INFORMATION AS
CONFIDENTIAL IN ACCORDANCE WITH THE TERMS AND CONDITIONS HEREOF AND SUCH
REPRESENTATIVE SHALL HAVE AGREED IN WRITING TO BE BOUND BY THIS PROVISION AS IF
IT WERE A PARTY TO THIS AGREEMENT.
13.
BORROWER HEREBY COVENANTS AND AGREES THAT, DURING THE TERM OF THIS
AGREEMENT, IN THE EVENT THAT GUARANTOR CEASES TO BE A PUBLICLY TRADED COMPANY OR
GUARANTOR FAILS TO FILE ANY PUBLIC CONSOLIDATED REPORTS, FOR ANY REASON,
BORROWER SHALL CAUSE GUARANTOR TO FURNISH TO LENDER (I) AS SOON AS AVAILABLE,
BUT IN ANY EVENT WITHIN ONE HUNDRED TWENTY (120) DAYS AFTER THE END OF EACH
FISCAL YEAR, A COPY OF THE CONSOLIDATED BALANCE SHEET OF GUARANTOR AND ITS
CONSOLIDATED SUBSIDIARIES AS AT THE END OF SUCH FISCAL YEAR AND THE RELATED
CONSOLIDATED STATEMENTS OF INCOME AND RETAINED EARNINGS AND OF CASH FLOWS OF THE
GUARANTOR AND ITS CONSOLIDATED SUBSIDIARIES FOR SUCH YEAR, WHICH CONSOLIDATED
STATEMENTS SHALL BE AUDITED BY A FIRM OF INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS OF NATIONALLY RECOGNIZED STANDING; AND (II) AS SOON AS AVAILABLE,
AND IN ANY EVENT WITHIN SIXTY (60) DAYS AFTER THE END OF EACH OF