ENTITY OR ANY OF THEIR RESPECTIVE BUSINESSES, OTHER THAN ANY SUCH INFORMATION
THAT IS AVAILABLE TO ANY CREDITOR PARTY OR AN AFFILIATE OF SUCH CREDITOR PARTY
ON A NONCONFIDENTIAL BASIS PRIOR TO DISCLOSURE BY EITHER BORROWER, ANY GUARANTOR
OR ANY PLEDGED ENTITY, OR SUBSEQUENTLY BECOMES AVAILABLE ON SUCH BASIS.
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.
25.3
COMPLIANCE STANDARD.
EACH OF THE CREDITOR PARTIES ACKNOWLEDGES THAT
(A) THE INFORMATION MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE
BORROWERS, THE GUARANTORS, AND THEIR SUBSIDIARIES, AS THE CASE MAY BE, (B) IT
HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC
INFORMATION AND (C) IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS. TO
THE EXTENT PRACTICABLE AND POSSIBLE IN COMPLIANCE WITH APPLICABLE LAW,
REGULATION, PROCEEDING OR COURT ORDER, EACH OF THE CREDITOR PARTIES SHALL, PRIOR
TO DISCLOSURE THEREOF, NOTIFY THE BORROWERS OF ANY REQUEST FOR DISCLOSURE OF ANY
SUCH NON-PUBLIC INFORMATION BY ANY GOVERNMENTAL AGENCY OR REPRESENTATIVE THEREOF
(OTHER THAN ANY SUCH REQUEST IN CONNECTION WITH AN EXAMINATION OF THE FINANCIAL
CONDITION OF SUCH CREDITOR PARTY BY SUCH GOVERNMENTAL AGENCY) OR PURSUANT TO
LEGAL PROCESS.
103
25.4
INTRALINKS AND PUBLIC LENDERS.
THE BORROWERS AND THE GUARANTORS
HEREBY ACKNOWLEDGE THAT (A) THE ADMINISTRATIVE AGENT WILL MAKE AVAILABLE TO THE
OTHER CREDITOR PARTIES MATERIALS AND/OR INFORMATION PROVIDED BY OR ON BEHALF OF
THE BORROWERS AND THE GUARANTORS HEREUNDER (COLLECTIVELY, "BORROWER MATERIALS")
BY POSTING THE BORROWER MATERIALS ON INTRALINKS OR ANOTHER 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 THE BORROWERS OR THEIR SECURITIES) (EACH, A "PUBLIC
LENDER"). THE BORROWERS AND THE GUARANTORS HEREBY AGREE THAT (W) ALL BORROWER
MATERIALS 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
BORROWER MATERIALS "PUBLIC," THE BORROWERS AND THE GUARANTORS SHALL BE DEEMED TO
HAVE AUTHORIZED THE CREDITOR PARTIES TO TREAT SUCH BORROWER MATERIALS AS NOT
CONTAINING ANY MATERIAL NON-PUBLIC INFORMATION WITH RESPECT TO THE BORROWERS AND
THE GUARANTORS OR THEIR SECURITIES FOR PURPOSES OF UNITED STATES FEDERAL AND
STATE SECURITIES LAWS (PROVIDED, HOWEVER, THAT TO THE EXTENT SUCH BORROWER
MATERIALS CONSTITUTE INFORMATION, THEY SHALL BE TREATED AS SET FORTH IN THIS
SECTION); (Y) ALL BORROWER MATERIALS MARKED "PUBLIC" ARE PERMITTED TO BE MADE
AVAILABLE THROUGH A PORTION OF THE PLATFORM DESIGNATED "PUBLIC INVESTOR"; AND
(Z) THE ADMINISTRATIVE AGENT SHALL BE ENTITLED TO TREAT ANY BORROWER MATERIALS
THAT ARE NOT MARKED "PUBLIC" AS BEING SUITABLE ONLY FOR POSTING ON A PORTION OF