THE GUARANTY, IT BEING UNDERSTOOD AND AGREED THAT ALL
POWERS, RIGHTS AND REMEDIES HEREUNDER MAY BE EXERCISED SOLELY BY ADMINISTRATIVE
AGENT, ON BEHALF OF LENDERS IN ACCORDANCE WITH THE TERMS HEREOF AND ALL POWERS,
RIGHTS AND REMEDIES UNDER THE COLLATERAL DOCUMENTS MAY BE EXERCISED SOLELY BY
COLLATERAL AGENT, AND (II) IN THE EVENT OF A FORECLOSURE BY COLLATERAL AGENT ON
ANY OF THE COLLATERAL PURSUANT TO A PUBLIC OR PRIVATE SALE, THE COLLATERAL AGENT
OR ANY LENDER MAY BE THE PURCHASER OF ANY OR ALL OF SUCH COLLATERAL AT ANY SUCH
SALE AND THE COLLATERAL AGENT, AS AGENT FOR AND REPRESENTATIVE OF SECURED
PARTIES (BUT NOT ANY LENDER OR LENDERS IN ITS OR THEIR RESPECTIVE INDIVIDUAL
CAPACITIES UNLESS THE REQUISITE LENDERS SHALL OTHERWISE AGREE IN WRITING) SHALL
BE ENTITLED, FOR THE PURPOSE OF BIDDING AND MAKING SETTLEMENT OR PAYMENT OF THE
PURCHASE PRICE FOR ALL OR ANY PORTION OF THE COLLATERAL SOLD AT ANY SUCH PUBLIC
SALE, TO USE AND APPLY ANY OF THE OBLIGATIONS AS A CREDIT ON ACCOUNT OF THE
PURCHASE PRICE FOR ANY COLLATERAL PAYABLE BY COLLATERAL AGENT AT SUCH SALE.
(D)
INTERCREDITOR AGREEMENT.
EACH LENDER HEREBY ACKNOWLEDGES THAT IT
HAS FULLY REVIEWED THE INTERCREDITOR AGREEMENT AND, BY ITS EXECUTION OF THIS
AGREEMENT, HEREBY CONSENTS TO THE EXECUTION AND DELIVERY OF THE INTERCREDITOR
AGREEMENT BY THE AGENTS AND AGREES TO COMPLY WITH THE TERMS THEREOF (WHICH TERMS
ARE INCORPORATED HEREIN BY REFERENCE IN THEIR ENTIRETY) AS IF SUCH LENDER WERE A
DIRECT SIGNATORY THERETO.
9.9
APPROVED ELECTRONIC COMMUNICATIONS.
(A)
EACH OF THE LENDERS, THE BORROWER AND EACH GUARANTOR AGREES THAT
THE AGENTS MAY, BUT SHALL NOT BE OBLIGATED TO, MAKE THE APPROVED ELECTRONIC
COMMUNICATIONS AVAILABLE TO THE LENDERS BY POSTING SUCH APPROVED ELECTRONIC
COMMUNICATIONS ON INTRALINKSTM OR A SUBSTANTIALLY SIMILAR ELECTRONIC PLATFORM
CHOSEN BY THE AGENTS TO BE THEIR ELECTRONIC TRANSMISSION SYSTEM (THE
"PLATFORM").
(B)
ALTHOUGH THE PLATFORM AND ITS PRIMARY WEB PORTAL ARE SECURED WITH
GENERALLY-APPLICABLE SECURITY PROCEDURES AND POLICIES IMPLEMENTED OR MODIFIED BY
THE AGENTS FROM TIME TO TIME (INCLUDING, AS OF THE CLOSING DATE, A DUAL FIREWALL
AND A USER ID/PASSWORD AUTHORIZATION SYSTEM) AND THE PLATFORM IS SECURED THROUGH
A SINGLE-USER-PER-DEAL AUTHORIZATION METHOD WHEREBY EACH USER MAY ACCESS THE
PLATFORM ONLY ON A DEAL-BY-DEAL BASIS, EACH OF THE LENDERS, THE BORROWER AND
EACH GUARANTOR AGREES THAT THE DISTRIBUTION OF MATERIAL THROUGH AN ELECTRONIC
MEDIUM IS NOT NECESSARILY SECURE AND THAT THERE ARE CONFIDENTIALITY AND OTHER
RISKS ASSOCIATED WITH SUCH DISTRIBUTION.
IN CONSIDERATION FOR THE CONVENIENCE
AND OTHER BENEFITS AFFORDED BY SUCH DISTRIBUTION AND FOR THE OTHER CONSIDERATION
PROVIDED HEREUNDER, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED,
LENDERS, THE BORROWER AND EACH GUARANTOR HEREBY APPROVES
98
DISTRIBUTION OF THE APPROVED ELECTRONIC COMMUNICATIONS THROUGH THE PLATFORM AND
UNDERSTANDS AND ASSUMES, AND THE BORROWER SHALL CAUSE EACH GUARANTOR TO
UNDERSTAND AND ASSUME, THE RISKS OF SUCH DISTRIBUTION.
(C)
THE PLATFORM AND THE APPROVED ELECTRONIC COMMUNICATIONS ARE
PROVIDED "AS IS" AND "AS AVAILABLE."
NONE OF THE AGENTS OR ANY OF THEIR
RESPECTIVE AFFILIATES OR ANY