PRIOR CONSENT OF BANK OF AMERICA EXCEPT TO THE EXTENT REQUIRED TO DO
SO UNDER APPLICABLE REQUIREMENTS OF LAW AND THEN, ONLY AFTER CONSULTING WITH
BANK OF AMERICA.
(E) DISTRIBUTION OF MATERIALS TO LENDERS.
THE BORROWER ACKNOWLEDGES AND AGREES,
THAT THE LOAN DOCUMENTS AND ALL REPORTS, NOTICES, COMMUNICATIONS AND OTHER
INFORMATION OR MATERIALS PROVIDED OR DELIVERED BY, OR ON BEHALF OF, THE BORROWER
(COLLECTIVELY, THE "BORROWER MATERIALS") MAY BE DISSEMINATED BY, OR ON BEHALF
OF, AGENT, AND MADE AVAILABLE, TO THE LENDERS BY POSTING SUCH BORROWER MATERIALS
ON INTRALINKS, SYNDTRAK, CLEARPAR OR A SUBSTANTIALLY SIMILAR ELECTRONIC
TRANSMISSION SYSTEM (THE "PLATFORM").
THE BORROWER AUTHORIZES AGENT TO DOWNLOAD
COPIES OF THEIR LOGOS FROM ITS WEBSITE AND POST COPIES THEREOF ON THE PLATFORM.
(F) MATERIAL NON‐PUBLIC INFORMATION.
THE BORROWER HEREBY AGREES THAT IF EITHER
THEY, ANY PARENT COMPANY OR ANY SUBSIDIARY OF THE BORROWER HAS PUBLICLY TRADED
EQUITY OR DEBT SECURITIES IN THE U.S., THEY SHALL (AND SHALL CAUSE SUCH PARENT
COMPANY OR SUBSIDIARY, AS THE CASE MAY BE, TO) (I) IDENTIFY IN WRITING, AND (II)
TO THE EXTENT REASONABLY PRACTICABLE, CLEARLY AND CONSPICUOUSLY MARK SUCH
BORROWER MATERIALS THAT CONTAIN ONLY INFORMATION THAT IS PUBLICLY AVAILABLE OR
THAT IS NOT MATERIAL FOR PURPOSES OF U.S. FEDERAL AND STATE SECURITIES LAWS AS
"PUBLIC".
THE BORROWER AGREES THAT BY IDENTIFYING SUCH BORROWER MATERIALS AS
"PUBLIC" OR PUBLICLY FILING SUCH BORROWER MATERIALS WITH THE SECURITIES AND
EXCHANGE COMMISSION, THEN AGENT AND THE LENDERS SHALL BE ENTITLED TO TREAT SUCH
BORROWER MATERIALS AS NOT CONTAINING ANY MNPI FOR PURPOSES OF U.S. FEDERAL AND
STATE SECURITIES LAWS.
THE BORROWER FURTHER REPRESENTS, WARRANTS, ACKNOWLEDGES
AND AGREES THAT THE FOLLOWING DOCUMENTS AND MATERIALS SHALL BE DEEMED TO BE
PUBLIC, WHETHER OR NOT SO MARKED, AND DO NOT CONTAIN ANY MNPI:
(A) THE LOAN
DOCUMENTS, INCLUDING THE SCHEDULES AND EXHIBITS ATTACHED THERETO, AND (B)
ADMINISTRATIVE MATERIALS OF A CUSTOMARY NATURE PREPARED BY THE BORROWER OR AGENT
(INCLUDING, LOAN NOTICES AND ANY SIMILAR REQUESTS
‐37‐
or notices posted on or through the Platform).
Before distribution of any
Borrower Materials, the Borrower agrees to execute and deliver to Agent a letter
authorizing distribution of the evaluation materials to prospective Lenders and
their employees willing to receive MNPI, and a separate letter authorizing
distribution of evaluation materials that do not contain MNPI and represent that
no MNPI is contained therein.
SECTION 9.10 SET‐OFF; SHARING OF PAYMENTS.
(A) RIGHT OF SETOFF.
EACH OF AGENT, EACH LENDER AND EACH AFFILIATE (INCLUDING
EACH BRANCH OFFICE THEREOF) OF ANY OF THEM IS HEREBY AUTHORIZED, WITHOUT NOTICE
OR DEMAND (EACH OF WHICH IS HEREBY WAIVED BY THE BORROWER), AT ANY TIME AND FROM
TIME TO TIME DURING THE CONTINUANCE OF ANY EVENT OF DEFAULT AND TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, TO SET OFF AND APPLY ANY AND
ALL DEPOSITS (WHETHER GENERAL OR SPECIAL, TIME OR DEMAND, PROVISIONAL OR FINAL)
AT ANY TIME HELD AND OTHER INDEBTEDNESS, CLAIMS OR OTHER OBLIGATIONS AT ANY TIME
OWING BY AGENT, SUCH LENDER OR ANY OF THEIR RESPECTIVE AFFILIATES