when mailed or e-mailed, be
effective when deposited in the mails, telecopied, or confirmed by e-mail,
respectively, except that notices and communications to the Agent pursuant to
Sections 2, 3 or 8 shall not be effective until received by the Agent.
Delivery
by telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
(B)
SO LONG AS BANK OF AMERICA OR ANY OF ITS AFFILIATES IS THE
ADMINISTRATIVE AGENT, MATERIALS REQUIRED TO BE DELIVERED PURSUANT TO
SECTION 5.1(A), (B), (I) AND (L)(I) SHALL BE DELIVERED TO THE ADMINISTRATIVE
AGENT IN AN ELECTRONIC MEDIUM IN A FORMAT ACCEPTABLE TO THE ADMINISTRATIVE AGENT
AND THE LENDERS BY E-MAIL AT LILIANA.CLAAR@BANKOFAMERICA.COM.
COMPANY AGREES
THAT (A) THE ADMINISTRATIVE AGENT MAY MAKE SUCH MATERIALS, AS WELL AS ANY OTHER
WRITTEN INFORMATION, DOCUMENTS, INSTRUMENTS AND OTHER MATERIAL RELATING TO
COMPANY, ANY OF ITS SUBSIDIARIES OR ANY OTHER MATERIALS OR MATTERS RELATING TO
THIS AGREEMENT, THE NOTES OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY
(COLLECTIVELY, THE "COMMUNICATIONS") AVAILABLE TO THE LENDERS BY POSTING SUCH
NOTICES ON INTRALINKS, "E-DISCLOSURE", OR A SUBSTANTIALLY SIMILAR ELECTRONIC
SYSTEM (THE "PLATFORM") AND (B) CERTAIN OF THE LENDERS MAY BE "PUBLIC-SIDE"
LENDERS (I.E., LENDERS THAT DO NOT WISH TO RECEIVE MATERIAL NON-PUBLIC
INFORMATION WITH RESPECT TO COMPANY OR ITS SECURITIES) (EACH, A "PUBLIC
LENDER").
COMPANY HEREBY AGREES THAT (W) ALL COMMUNICATIONS THAT ARE TO BE MADE
AVAILABLE TO PUBLIC LENDERS SHALL BE CLEARLY AND CONSPICUOUSLY MARKED "PUBLIC"
WHICH, AT A MINIMUM, SHALL MEAN THAT THE WORD "PUBLIC" SHALL APPEAR PROMINENTLY
ON THE FIRST PAGE THEREOF; (X) BY MARKING COMMUNICATIONS "PUBLIC," THE COMPANY
SHALL BE DEEMED TO HAVE AUTHORIZED THE ADMINISTRATIVE AGENT, THE ARRANGERS, THE
ISSUING BANK AND THE LENDERS TO TREAT SUCH COMMUNICATIONS AS EITHER PUBLICLY
AVAILABLE INFORMATION OR NOT MATERIAL INFORMATION (ALTHOUGH IT MAY BE SENSITIVE
AND PROPRIETARY) WITH RESPECT TO THE COMPANY OR ITS SECURITIES FOR PURPOSES OF
UNITED STATES FEDERAL AND STATE SECURITIES LAWS; (Y) ALL COMMUNICATIONS MARKED
"PUBLIC" ARE PERMITTED TO BE MADE AVAILABLE THROUGH A PORTION OF THE PLATFORM
DESIGNATED "PUBLIC INVESTOR"; AND (Z) THE ADMINISTRATIVE AGENT AND THE ARRANGERS
SHALL BE ENTITLED TO TREAT ANY COMMUNICATIONS THAT ARE NOT MARKED "PUBLIC" AS
BEING SUITABLE FOR POSTING ONLY ON A PORTION OF THE PLATFORM NOT DESIGNATED
"PUBLIC INVESTOR".
COMPANY ACKNOWLEDGES THAT (I) THE DISTRIBUTION OF MATERIAL
THROUGH AN ELECTRONIC MEDIUM IS NOT NECESSARILY SECURE AND THAT THERE ARE
CONFIDENTIALITY AND OTHER RISKS ASSOCIATED WITH SUCH DISTRIBUTION, (II) THE
PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE" AND (III) NEITHER THE
ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES WARRANTS THE ACCURACY, ADEQUACY
OR COMPLETENESS OF THE COMMUNICATIONS OR THE PLATFORM AND EACH EXPRESSLY
DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS OR THE
PLATFORM.
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF