(IV) NO
LENDER SHALL TRANSFER OR GRANT ANY PARTICIPATING INTEREST UNDER WHICH THE
PARTICIPANT HAS RIGHTS TO APPROVE ANY AMENDMENT TO, OR ANY CONSENT OR WAIVER
WITH RESPECT TO, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, EXCEPT TO THE EXTENT
SUCH AMENDMENT, CONSENT OR WAIVER WOULD REQUIRE UNANIMOUS CONSENT OF LENDERS AS
DESCRIBED IN THE FIRST PROVISO TO SECTION 8.1.
IN THE CASE OF ANY SUCH
PARTICIPATION, THE PARTICIPANT SHALL BE ENTITLED TO THE BENEFIT OF SECTIONS 2.8,
2.16 AND 8.4 AS THOUGH IT WERE ALSO A LENDER HEREUNDER, AND IF AMOUNTS
OUTSTANDING UNDER THIS AGREEMENT ARE DUE AND UNPAID, OR SHALL HAVE BEEN DECLARED
OR SHALL HAVE BECOME DUE AND PAYABLE UPON THE OCCURRENCE OF AN EVENT OF DEFAULT,
EACH PARTICIPANT SHALL BE DEEMED TO HAVE THE RIGHT OF SET-OFF IN RESPECT OF ITS
PARTICIPATING INTEREST IN AMOUNTS OWING UNDER THIS AGREEMENT TO THE SAME EXTENT
AS IF THE AMOUNT OF ITS PARTICIPATING INTEREST WERE OWING DIRECTLY TO IT AS A
LENDER UNDER THIS AGREEMENT.
(E)
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, ANY LENDER
MAY AT ANY TIME CREATE A SECURITY INTEREST IN, OR PLEDGE, ALL OR ANY PORTION OF
ITS RIGHTS UNDER AND INTEREST IN THIS AGREEMENT AND THE NOTES HELD BY IT IN
FAVOR OF ANY FEDERAL RESERVE BANK IN ACCORDANCE WITH REGULATION A OF THE FRB OR
U.S. TREASURY REGULATION 31 C.F.R. §203.14, AND SUCH FEDERAL RESERVE BANK MAY
ENFORCE SUCH PLEDGE OR SECURITY INTEREST IN ANY MANNER PERMITTED UNDER
APPLICABLE LAW.
8.8
CONFIDENTIALITY.
EACH OF THE LENDERS AND AGENT AGREE TO TAKE NORMAL
AND REASONABLE PRECAUTIONS AND EXERCISE DUE CARE TO MAINTAIN THE CONFIDENTIALITY
OF ALL INFORMATION RESPECTING HOLDINGS AND BORROWER AND THEIR RESPECTIVE
BUSINESSES ("CUSTOMER INFORMATION") AND NOT TO USE THE CUSTOMER INFORMATION
OTHER THAN FOR PURPOSES UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
HOLDINGS AND BORROWER AGREE THAT AGENT OR ANY LENDER MAY DISCLOSE FROM TIME TO
TIME ALL CUSTOMER INFORMATION IN ITS POSSESSION TO AGENT'S OR ANY SUCH LENDER'S
LEGAL COUNSEL, AGENTS AND OTHER PROFESSIONAL ADVISORS, AND TO ITS SUBSIDIARIES
AND AFFILIATES, TO ANY POTENTIAL ASSIGNEES OR PARTICIPANTS OF THE RIGHTS AND/OR
OBLIGATIONS OF ANY SUCH LENDER HEREUNDER, TO ANY UNDERWRITERS OR PLACEMENT
AGENTS FOR ANY SECURITIES TO BE ISSUED BY ANY SUCH LENDER OR ANY OF ITS
SUBSIDIARIES OR AFFILIATES (OR ANY TRANSFEREE OF ANY SUCH SUBSIDIARIES OR
AFFILIATES) AND TO ANY RATING AGENCY RATING SUCH SECURITIES AND TO THEIR
RESPECTIVE LEGAL COUNSEL, AGENTS AND OTHER PROFESSIONAL ADVISORS; PROVIDED THAT
SUCH RECIPIENTS AGREE NOT TO DISCLOSE SUCH CUSTOMER
39
INFORMATION FOR ANY PURPOSES OTHER THAN AS CONTEMPLATED HEREIN.
HOLDINGS AND
BORROWER ALSO CONSENT TO THE DISCLOSURE OF CUSTOMER INFORMATION BY LENDER, OR
ANY OF ITS SUBSIDIARIES OR AFFILIATES, (I) AT THE REQUEST OF ANY GOVERNMENTAL
AUTHORITY HAVING JURISDICTION OVER AGENT OR SUCH LENDER OR SUCH SUBSIDIARY OR
AFFILIATE, (II) PURSUANT TO SUBPOENA OR OTHER COURT PROCESS, (III) TO THE EXTENT
REASONABLY REQUIRED IN CONNECTION WITH ANY LITIGATION TO WHICH AGENT OR SUCH
LENDER OR ANY OF ITS SUBSIDIARIES