Bank or any
Lender on a nonconfidential basis from a source other than the Borrower.
For
the purposes of this Section, "Information" means all information received from
the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after the
Original Effective Date, such information is clearly identified at the time of
delivery as confidential.
Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
(ii) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a)
FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC
INFORMATION CONCERNING THE 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.
(iii) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED
BY THE BORROWER OR THE ADMINISTRATIVE 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 BORROWER , THE LOAN PARTIES
AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES.
ACCORDINGLY, EACH
LENDER REPRESENTS TO THE 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, INCLUDING FEDERAL AND STATE
SECURITIES LAWS.
(k) Additional Agents.
None of the Lenders or other entities identified on the
facing page of, signature pages of or elsewhere in this Agreement as a
Co-Syndication Agent, Co-Documentation Agent, Joint Bookrunner or Co-Lead
Arranger shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than, as to any such entity that is a Lender,
those applicable to all Lenders as such.
Without limiting the foregoing, none
of such entities shall have or be deemed to have any fiduciary relationship with
any other Lender.
Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or other entities so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
(l) Release of Subsidiary Loan Parties and Collateral.
(i)
Notwithstanding
any contrary provision herein or in any other Loan Document, (i) upon (A) any
sale or other transfer in the ordinary course of business by the Borrower or any
Subsidiary of any Collateral consisting of inventory or used, surplus, obsolete
or outmoded machinery or equipment, (B) the distribution of