that approval of
such procedures may be limited to particular notices or communications.
(c)
Any party hereto may change its address or
telecopy number for notices and other communications hereunder by notice to the
other parties hereto.
All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt.
(d)
Each of Holdings and the Borrower represent
and warrant that it and its Subsidiaries either (i) has no registered or
publicly traded securities outstanding, or (ii) files its financial statements
with the SEC and/or makes its financial statements available to potential
holders of its 144A securities, and, accordingly, the Borrower hereby
(i) authorizes the Administrative Agent to make the financial statements to be
provided under Section 5.01(b) and (c), along with the Credit Documents,
available to Public Lenders and (ii) agrees that at the time such financial
statements are provided hereunder, they shall already have been made available
to holders of its securities.
The Borrower will not request that any other
material be posted to Public Lenders without expressly representing and
warranting to the Administrative Agent in writing that such materials do not
constitute material non-public
89
information within the meaning of the federal securities laws or that Holdings,
the Borrower and their respective Subsidiaries have no outstanding publicly
traded securities, including 144A securities.
(e)
EACH LENDER ACKNOWLEDGES THAT INFORMATION
FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC
INFORMATION CONCERNING 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.
(f)
ALL INFORMATION, INCLUDING REQUESTS FOR
WAIVERS AND AMENDMENTS, FURNISHED BY BORROWER, THE ADMINISTRATIVE AGENT OR THE
COLLATERAL 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 CREDIT PARTIES AND THEIR RELATED PARTIES OR THEIR
RESPECTIVE SECURITIES.
ACCORDINGLY, EACH LENDER REPRESENTS TO 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.
10.2
Expenses.
Borrower shall pay (i) all reasonable out
of pocket expenses incurred by the Administrative Agent, the Collateral Agent,
the Arranger and their respective Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent and the
Collateral Agent, in connection with the syndication of the credit facilities
provided for herein, the preparation and administration of this Agreement or any
amendments, modifications or waivers of the provisions hereof (whether or not
the transactions contemplated hereby or thereby shall be consummated) and
(ii) all out-of-pocket expenses incurred by the Administrative Agent, the
Collateral Agent or any Lender, including the fees, charges and disbursements of
any counsel for