AGREEMENT SHALL
AUTHORIZE DFR, DCM OR ANY AFFILIATE THEREOF ON THE ONE HAND, OR INVESTOR OR ANY
AFFILIATE ON THE OTHER HAND, TO ISSUE A PRESS RELEASE REFERRING TO THE OTHER
PARTY (OR ANY AFFILIATE THEREOF) WITHOUT SUCH OTHER PARTY'S CONSENT.
(F)
EXCEPT AS PROVIDED IN SECTIONS 8(C)(1),(2),(4) AND (5), INVESTOR
SHALL HAVE THE RIGHT TO APPROVE ANY DESCRIPTION OR DISCLOSURE OF INVESTOR OR ANY
AFFILIATE THEREOF IN ANY OFFERING OR OTHER MATERIALS DISSEMINATED TO ANY
PROSPECTIVE INVESTOR IN ANY DEERFIELD PEGASUS FUND.
9.
Services of Investor.
Except as expressly set forth herein, none
of Investor or any Affiliate thereof shall be obligated to provide any support
services to DCM, any Deerfield Pegasus Fund, any Deerfield Pegasus Fund GP, any
portfolio company of any Deerfield Pegasus Fund or any Affiliate of any of the
foregoing.
10.
INFORMATION AND RECORDS.
(A)
DCM, EACH DEERFIELD PEGASUS FUND INVESTMENT ADVISOR, EACH
DEERFIELD PEGASUS FUND AND EACH DEERFIELD PEGASUS FUND GP SHALL PRESERVE, DURING
SUCH ENTITY'S EXISTENCE AND FOR SIX (6) YEARS THEREAFTER, ADEQUATE FINANCIAL AND
ACCOUNTING RECORDS PERTAINING TO THE OPERATING AGREEMENT OF THE APPLICABLE
ENTITY TO VERIFY THE AMOUNTS, RECIPIENTS, AND USES OF ALL MATERIAL DISBURSEMENTS
MADE IN CONNECTION WITH EACH SUCH ENTITY AND THE ACTIVITIES THEREOF (BUT WITH
RESPECT TO DCM AND THE DEERFIELD PEGASUS FUND INVESTMENT ADVISORS SOLELY IN
RELATION TO THE DEERFIELD PEGASUS FUNDS).
WITH RESPECT TO EACH SUCH ENTITY (BUT
WITH RESPECT TO DCM AND DEERFIELD PEGASUS FUND INVESTMENT ADVISORS SOLELY IN
RELATION TO THE DEERFIELD PEGASUS FUNDS), DURING SUCH PERIOD, INVESTOR (SO LONG
AS INVESTOR OR ANY AFFILIATE THEREOF IS A BENEFICIAL INTEREST HOLDER IN SUCH
ENTITY), UPON REASONABLE NOTICE TO THE APPLICABLE ENTITY AND DURING NORMAL
BUSINESS HOURS, SHALL HAVE THE RIGHT TO AUDIT SUCH FINANCIAL AND ACCOUNTING
RECORDS TO THE FULLEST EXTENT AUTHORIZED AND PERMITTED BY APPLICABLE LAW.
(b)
Subject to the same confidentiality obligations of DCM, Investor
shall (i) be provided access to the custodian and administrator of each
Deerfield Pegasus Fund that is equivalent to the access that is provided to DCM
and any Deerfield Pegasus Fund Investment Advisor, provided, that Investor shall
not be able to direct such custodians and administrators to take any action and
(ii) receive all reports and correspondence set forth on Exhibit B from such
service providers in connection with any Deerfield Pegasus Fund.
11.
NON-COMPETITION.
SO LONG AS INVESTOR'S RIGHTS PURSUANT TO
SECTION 7 HAVE NOT TERMINATED, WITHOUT INVESTOR'S CONSENT, NONE OF DFR, DCM, ANY
DFR AFFILIATE OR ANY DFR RELATED ENTITY SHALL, DURING THE PERIOD COMMENCING ON
THE INITIAL CLOSING DATE AND ENDING ON THE [***] ANNIVERSARY OF THE FINAL
CLOSING OF FUND I, MANAGE ANY (1) COVERED MANAGED ACCOUNT THAT IS NOT EXISTING
AS OF THE DATE HEREOF OR (2) ANY SUCCESSOR TO ANY COVERED MANAGED ACCOUNT THAT
IS EXISTING AS OF THE DATE HEREOF OR SPONSOR ANY SUBSEQUENT COVERED LOAN FUND
WITH A TARGET SIZE OF LESS THAN $400 MILLION OF THIRD PARTY CAPITAL
CONTRIBUTIONS.
FURTHERMORE, NONE OF DFR, DCM, ANY DFR AFFILIATE OR