IN ANY WAY FOR ANY DECISION A LENDER MAY MAKE TO LIMIT OR
TO NOT LIMIT ITS ACCESS TO RESTRICTING INFORMATION.
IN PARTICULAR, NONE OF THE
ADMINISTRATIVE AGENT NOR ANY OF ITS AGENT-RELATED PERSONS (I) SHALL HAVE, AND
THE ADMINISTRATIVE AGENT, ON BEHALF OF ITSELF AND EACH OF ITS AGENT-RELATED
PERSONS, HEREBY DISCLAIMS, ANY DUTY TO ASCERTAIN OR INQUIRE AS TO WHETHER OR NOT
A LENDER HAS OR HAS NOT LIMITED ITS ACCESS TO RESTRICTING INFORMATION, SUCH
LENDER'S POLICIES OR PROCEDURES REGARDING THE SAFEGUARDING OF MATERIAL,
NONPUBLIC INFORMATION OR SUCH LENDER'S COMPLIANCE WITH APPLICABLE LAWS RELATED
THERETO OR (II) SHALL HAVE, OR INCUR, ANY LIABILITY TO ANY LOAN PARTY OR LENDER
OR ANY OF THEIR RESPECTIVE AGENT-RELATED PERSONS ARISING OUT OF OR RELATING TO
THE ADMINISTRATIVE AGENT OR ANY OF ITS AGENT-RELATED PERSONS PROVIDING OR NOT
PROVIDING RESTRICTING INFORMATION TO ANY LENDER.
(D)
EACH LOAN PARTY AGREES THAT (I) ALL COMMUNICATIONS IT PROVIDES TO
THE ADMINISTRATIVE AGENT INTENDED FOR DELIVERY TO THE LENDERS WHETHER BY POSTING
TO THE PLATFORM OR OTHERWISE SHALL BE CLEARLY AND CONSPICUOUSLY MARKED "PUBLIC"
IF SUCH COMMUNICATIONS DO NOT CONTAIN RESTRICTING INFORMATION WHICH, AT A
MINIMUM, SHALL MEAN THAT THE WORD "PUBLIC" SHALL APPEAR PROMINENTLY ON THE FIRST
PAGE THEREOF, (II) BY MARKING COMMUNICATIONS "PUBLIC," EACH LOAN PARTY SHALL BE
DEEMED TO HAVE AUTHORIZED THE ADMINISTRATIVE AGENT AND THE LENDERS TO TREAT SUCH
COMMUNICATIONS AS EITHER PUBLICLY AVAILABLE INFORMATION OR NOT MATERIAL
INFORMATION (ALTHOUGH, IN THIS LATTER CASE, SUCH COMMUNICATIONS MAY CONTAIN
SENSITIVE BUSINESS INFORMATION AND, THEREFORE, REMAIN SUBJECT TO THE
CONFIDENTIALITY UNDERTAKINGS OF THIS AGREEMENT) WITH RESPECT TO SUCH LOAN PARTY
OR ITS SECURITIES FOR PURPOSES OF UNITED STATES FEDERAL AND STATE SECURITIES
LAWS, (III) ALL COMMUNICATIONS MARKED "PUBLIC" MAY BE DELIVERED TO ALL LENDERS
AND MAY BE MADE AVAILABLE THROUGH A PORTION OF THE PLATFORM DESIGNATED "PUBLIC
SIDE INFORMATION," AND (IV) THE ADMINISTRATIVE AGENT SHALL BE ENTITLED TO TREAT
ANY COMMUNICATIONS THAT ARE NOT MARKED "PUBLIC" AS RESTRICTING INFORMATION AND
MAY POST SUCH COMMUNICATIONS TO A PORTION OF THE PLATFORM NOT DESIGNATED "PUBLIC
SIDE INFORMATION."
NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES
SHALL BE RESPONSIBLE FOR ANY STATEMENT OR OTHER DESIGNATION BY A LOAN PARTY
REGARDING WHETHER A COMMUNICATION CONTAINS OR DOES NOT CONTAIN MATERIAL
NON-PUBLIC INFORMATION WITH RESPECT TO ANY OF THE LOAN PARTIES OR THEIR
SECURITIES NOR SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES INCUR ANY
LIABILITY TO ANY LOAN PARTY, ANY LENDER OR ANY OTHER PERSON FOR ANY ACTION TAKEN
BY THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES BASED UPON SUCH
86
STATEMENT OR DESIGNATION, INCLUDING ANY ACTION AS A RESULT OF WHICH RESTRICTING
INFORMATION IS PROVIDED TO A LENDER THAT MAY DECIDE NOT TO TAKE ACCESS TO
RESTRICTING INFORMATION.
(E)
EACH LENDER ACKNOWLEDGES THAT CIRCUMSTANCES MAY ARISE THAT REQUIRE
IT TO REFER TO COMMUNICATIONS THAT MIGHT CONTAIN RESTRICTING INFORMATION.
ACCORDINGLY, EACH LENDER AGREES THAT IT WILL NOMINATE AT LEAST ONE DESIGNEE TO
RECEIVE COMMUNICATIONS (INCLUDING RESTRICTING INFORMATION) ON ITS BEHALF.
EACH
LENDER AGREES TO