Platform. Each Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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 shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 3 contracts
Sources: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)
Platform. Each Borrower Borrowers hereby acknowledges acknowledge that (a) the Administrative Agent will may, but shall not be obligated to, make available to Lenders the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) Materials by posting the Borrower Materials on IntralinksDebt Domain, DebtDomain IntraLinks, Syndtrak or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower Borrowers hereby agrees 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 shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to Borrowers or their securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b15.13)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” 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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information.” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM PLATFORM, AND EACH EXPRESSLY DISCLAIMS DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH FROM THE PLATFORMBORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE ANY AGENT OR ANY OF ITS RELATED PARTIES PARTY IN CONNECTION WITH ANY SUCH COMMUNICATIONS THE BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESIn no event shall Administrative Agent or any of its Related Parties (collectively, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDthe “Agent Parties”) have any liability to Borrowers, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTany Lender or any other Person for losses, SPECIALclaims, INCIDENTAL OR CONSEQUENTIAL DAMAGESdamages, LOSSES OR EXPENSES liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETarising out of Borrowers’, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt any other Obligor’s or Administrative Agent’s transmission of notice to it (as provided above) specifying that Borrower Materials through the communications have been posted Internet; except to the Platform shall constitute effective delivery extent that a court of competent jurisdiction by final and non-appealable judgment has determined that such losses, claims, damages, liabilities or expenses arising out of Administrative Agent’s transmission of Borrower Materials resulted from the gross negligence or willful misconduct of such communications to such Lender for purposes of the Loan DocumentsAgent Party.
Appears in 3 contracts
Sources: Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Platform. Each Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinksshall be delivered pursuant to procedures approved by the Agent, DebtDomain or another similar including electronic delivery (if possible) upon request by the Agent to an electronic system maintained by the Agent (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees that (w) all A Loan Party Agent shall notify the Agent of each posting of Borrower Materials that are on the Platform and the materials shall be deemed received by the Agent only upon its receipt of such notice. Borrower Materials and other information relating to this Agreement may 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 thereofPlatform. The Platform is provided “as is” and “as available.” The Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, (x) by marking and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESLenders acknowledge that Borrower Materials may include material non-public information of Loan Parties and their Restricted Subsidiaries and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Loan Party’s or Restricted Subsidiary’s securities. No Agent Indemnitee shall have any liability to Loan Parties, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDLenders or any other Person for losses, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTclaims, SPECIALdamages, INCIDENTAL OR CONSEQUENTIAL DAMAGESliabilities or expenses of any kind (whether in tort, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt relating to use by any Person of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective or delivery of Borrower Materials and other information through the Platform, except for such communications losses, claims, damages, liabilities or expenses that are determined in a final, non-appealable judgment by a court of competent jurisdiction to result from the gross negligence, willful misconduct or bad faith of such Lender for purposes of the Loan DocumentsAgent Indemnitee.
Appears in 3 contracts
Sources: Loan, Security and Guarantee Agreement (Kraton Performance Polymers, Inc.), Loan, Security and Guarantee Agreement (Kraton Performance Polymers, Inc.), Loan, Security and Guarantee Agreement (Edgen Group Inc.)
Platform. Each Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinksshall be delivered pursuant to procedures approved by Agent, DebtDomain or another similar including electronic delivery (if possible) upon request by Agent to an electronic system maintained by Agent (the “Platform”) or otherwise ). Borrowers shall notify Agent of each posting of Borrower Materials to be provided by them, which notice may be communicated electronically in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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 shall be deemed to have authorized the Administrative Agent Section 15.4.2 and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed received by Agent only upon its receipt of such notice. Borrower Materials, Reports and other information relating to this credit facility may be marked made available to Lenders on the Platform. The Platform is provided “PUBLIC,as is” unless GEO notifies and “as available.” Agent does not warrant the Administrative Agent promptly that accuracy or completeness of any such document contains MNPI: (i) information on the Loan DocumentsPlatform nor the adequacy or functioning of the Platform, (ii) and expressly disclaims liability for any notification of changes errors or omissions in the terms Borrower Materials or any issues involving the Platform, except to the extent such errors, omissions or issues arise as a result of the Commitments Agent’s gross negligence or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMwillful misconduct. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS, REPORTS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESSecured Parties acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. Agent, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDeach Secured Party, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTeach Obligor and each Lender acknowledge that (a) the information on the Platform may include material non-public information concerning the Company or a Subsidiary, SPECIALas the case may be, INCIDENTAL OR CONSEQUENTIAL DAMAGES(b) it has developed compliance procedures regarding the use of material non-public information, LOSSES OR EXPENSES and (WHETHER IN TORTc) it will handle such material non-public information in accordance with Applicable Law. No Agent Indemnitee shall have any liability to Borrowers, CONTRACT OR OTHERWISESecured Parties or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETrelating to use by any Person of the Platform or delivery of Borrower Materials and other information through the Platform or over the internet, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted except to the Platform shall constitute effective delivery extent such losses, claims, damages, liabilities or expenses of such communications to such Lender for purposes any kind (whether in tort, contract or otherwise) arise as a result of the Loan DocumentsAgent’s gross negligence or willful misconduct.
Appears in 3 contracts
Sources: Loan and Security Agreement (Commercial Vehicle Group, Inc.), Loan and Security Agreement (Commercial Vehicle Group, Inc.), Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Platform. Each Borrower hereby acknowledges that (a) the ▇▇▇▇▇▇▇▇ agrees that Administrative Agent will and ▇▇▇▇ Lead Arranger may, but shall not be obligated to, make the Communications (as defined below) available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on IntralinksDebt Domain, DebtDomain IntraLinks, Syndtrak or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and ).
(b) Borrower hereby acknowledges that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (wi) all Borrower Materials 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, ; (xii) by marking Borrower Materials Communications “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized Administrative Agent, the Administrative Agent Lenders, and the Lenders Sole Lead Arranger to treat such Borrower Materials Communications as not containing any MNPI material non-public information with respect to Borrower or any Affiliate thereof or their respective securities for purposes of foreign or United States Federal federal and state securities laws laws; (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (yiii) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Platform; and (ziv) the Administrative Agent and Sole Lead Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked designated as “Non-Public InvestorInformation.”
(c) The Platform is provided “as is” and “as available.” Notwithstanding The Agent Parties (as defined below) do not warrant the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms accuracy or completeness of the Commitments Communications or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall Administrative Agent, Sole Lead Arranger, or any of their Affiliates (collectively, the “Agent Parties”) have any liability to Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of Borrower’s or Agent Party’s transmission or posting of Borrower Information through the Platform or via email, except to the extent that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KINDsuch losses, EXPRESSclaims, IMPLIED OR STATUTORYdamages, INCLUDING ANY WARRANTY OF MERCHANTABILITYliabilities or expenses are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, FITNESS FOR A PARTICULAR PURPOSEhowever, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESthat in no event shall any Agent Party have any liability to Borrower, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDany Lender or any other Person for indirect, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTspecial, SPECIALincidental, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it consequential or punitive damages (as provided above) specifying that the communications have been posted opposed to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.direct or actual damages). “
Appears in 2 contracts
Sources: Credit Agreement (Greystone Housing Impact Investors LP), Credit Agreement (Greystone Housing Impact Investors LP)
Platform. Each Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinksshall be delivered pursuant to procedures approved by the Agent, DebtDomain or another similar including electronic delivery (if possible) upon request by the Agent to an electronic system maintained by the Agent (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees that (w) all The Borrowers shall notify the Agent of each posting of Borrower Materials that are on the Platform and the materials shall be deemed received by the Agent only upon its receipt of such notice. Borrower Materials and other information relating to this credit facility may be made available to Public the 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 thereofPlatform. The Platform is provided “as is” and “as available.” The Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, (x) by marking and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees The Lenders acknowledge that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes Borrower Materials may include material non-public information of the Loan DocumentsParties and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Loan Party’s securities. No Agent Indemnitee shall have any liability to the Borrowers, the Lenders or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) relating to use by any Person of the Platform or delivery of Borrower Materials and other information through the Platform.
Appears in 2 contracts
Sources: Credit Agreement (Clean Harbors Inc), Credit Agreement (Clean Harbors Inc)
Platform. Each (i) The Borrower hereby acknowledges agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders L/C Issuer and the Issuing other Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each ) may have personnel who do not wish to receive material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) The Borrower hereby acknowledges hereby agrees that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such Communications (i) shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials such Communications (ii) “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, Lead Arrangers and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Loan Party or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the Administrative Agent and the Lead Arrangers shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information”.
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEAgent Parties”) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted any liability to the Platform shall constitute effective delivery Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of such any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications to such Lender for purposes of through the Loan DocumentsPlatform.
Appears in 2 contracts
Sources: Credit Agreement (Harvard Bioscience Inc), Credit Agreement (Harvard Bioscience Inc)
Platform. Each Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons Borrowers hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks, DebtDomain Intralinks or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its the Borrowers or their respective Subsidiaries or their the respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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 shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished delivered pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPImaterial non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal or state securities laws. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED CREDIT PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)
Platform. Each (i) The Borrower hereby acknowledges agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders L/C Issuer and the Issuing other Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each ) may have personnel who do not wish to receive material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) The Borrower hereby acknowledges hereby agrees that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such Communications shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials such Communications “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, the Lead Arrangers and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Loan Party or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the Administrative Agent and the Lead Arrangers shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information”.
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEAgent Parties”) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted any liability to the Platform shall constitute effective delivery Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of such any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications to such Lender for purposes of through the Loan DocumentsPlatform.
Appears in 2 contracts
Sources: Credit Agreement (Franchise Group, Inc.), Credit Agreement (Liberty Tax, Inc.)
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Administrative Agent, including electronic delivery (aif possible) the upon request by Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided byon Syndtrak, ClearPar, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks, DebtDomain or another a substantially similar electronic transmission system maintained by Administrative Agent (the “Platform”) or otherwise ). The Borrower shall notify Administrative Agent of each posting of Borrower Materials to be provided by them, which notice may be communicated electronically in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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 shall be deemed to have authorized the Administrative Agent Section 15.4.2 and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the received by Administrative Agent promptly that only upon its receipt of such notice. Borrower Materials and other information relating to this credit facility may be made available to Lenders on the Platform. The Platform is provided “as is” and “as available.” Administrative Agent does not warrant the accuracy or completeness of any such document contains MNPI: (i) information on the Loan DocumentsPlatform nor the adequacy or functioning of the Platform, (ii) and expressly disclaims liability for any notification of changes errors or omissions in the terms Borrower Materials or any issues involving the Platform, except to the extent such errors, omissions or issues arise as a result of the Commitments Administrative Agent’s gross negligence or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMwillful misconduct. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESSecured Parties acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. Administrative Agent, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDeach Secured Party, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTeach Obligor and each Lender acknowledge that (a) the information on the Platform may include material non-public information concerning the Borrower or a Subsidiary, SPECIALas the case may be, INCIDENTAL OR CONSEQUENTIAL DAMAGES(b) it has developed compliance procedures regarding the use of material non-public information, LOSSES OR EXPENSES and (WHETHER IN TORT, CONTRACT OR OTHERWISEc) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTit will handle such material non-public information in accordance with Applicable Law. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications No Administrative Agent Indemnitee shall have been posted any liability to the Borrower, any Guarantor, Secured Parties or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) relating to use by any Person of the Platform shall constitute effective or delivery of Borrower Materials and other information through the Platform or over the internet, except to the extent such communications to such Lender for purposes losses, claims, damages, liabilities or expenses of the Loan Documentsany kind (whether in tort, contract or otherwise) arise as a result of Administrative Agent’s gross negligence or willful misconduct.
Appears in 2 contracts
Sources: Term Loan and Security Agreement (Commercial Vehicle Group, Inc.), Term Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Platform. Each Borrower hereby acknowledges Dealer and each Lender agrees that Agent may make materials or information provided by or on behalf of Dealers hereunder (acollectively, “Dealer Materials”) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials communications on IntralinksIntraLinks, DebtDomain SyndTrak or another a substantially similar secure electronic transmission system (the “Platform”) ). The Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or otherwise completeness of the Dealer Materials, or the adequacy of the Platform and expressly disclaim liability for errors or omissions in accordance the communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by Agent in connection with the Administrative Dealer Materials or the Platform. In no event shall Agent or any of the Agent-Related Persons have any liability to the Dealers, any Lender or any other Person for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Dealer’s or Agent’s standard practicestransmission of communications through the Internet, and (b) except to the extent the liability of such Person is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Person’s gross negligence or willful misconduct. Each Dealer further agrees that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, its Subsidiaries the Dealers or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each Borrower hereby agrees 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 The Dealers shall be deemed to have authorized the Administrative Agent and its Affiliates and the Lenders to treat such Borrower Dealer Materials marked “PUBLIC” or otherwise at any time filed with the SEC as not containing any MNPI material non-public information with respect to the Dealers or their securities for purposes of foreign or United States Federal federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower laws. All Dealer Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” (or another similar term). Agent and (z) its Affiliates and the Administrative Agent Lenders shall be entitled to treat any Borrower Dealer Materials that are not marked “PUBLIC” or that are not at any time filed with the SEC as being suitable only for posting on a portion of the Platform not marked as “Public Investor” (or such other similar term).” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 2 contracts
Sources: Inventory Financing Agreement (OneWater Marine Inc.), Inventory Financing Agreement (OneWater Marine Inc.)
Platform. Each (i) Holdings and each Borrower hereby acknowledges agree that (a) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) any Communications by posting such Communication on Debt Domain, IntraLinks, SyndTrak or any other electronic platform chosen by the Borrower Materials on Intralinks, DebtDomain or another similar Administrative Agent to be its electronic transmission system (the “Platform”).
(ii) Although the Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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) modified by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent from time to time (including, as of the Effective Date, a user ID/password authorization system) and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available Platform is secured through a portion per-deal authorization method whereby each user may access the Platform only on a deal-by-deal basis, each of the Platform designated as “Public Investor,” Lenders, each of the Issuing Banks, Holdings and (z) each of the Borrowers acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent shall be entitled to treat is not responsible for approving or vetting the representatives or contacts of any Borrower Materials Lender that are not marked “PUBLIC” as being suitable only for posting on a portion added to the Approved Electronic Platform, and that there are confidentiality and other risks associated with such distribution. Each of the Platform not marked as “Public Investor.” Notwithstanding the foregoingLenders, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms each of the Commitments or Issuing Banks, Holdings and each of the Loans Borrowers hereby approves distribution of the Communications through the Platform and understands and assumes the risks of such distribution.
(iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER ”. THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED APPLICABLE PARTIES WARRANTS (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED APPLICABLE PARTIES IN CONNECTION WITH ANY SUCH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER, ANY CO-DOCUMENTATION AGENT, ANY SYNDICATION AGENT OR ANY OF ITS THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESLOAN PARTY, ANY SECURED PARTY LENDER, ANY ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, INTERNET OR THE PLATFORM EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS DAMAGES ARE FOUND IN A FINAL RULING BY AND NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S THE BAD FAITH, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF AN APPLICABLE PARTY OR WILLFUL MISCONDUCT. ANY OF ITS RELATED PARTIES.
(iv) Each Lender and each Issuing Bank agrees that receipt of notice to it (as provided abovein the next sentence) specifying that the communications Communications have been posted to the Platform shall constitute effective delivery of such communications the Communications to such Lender or Issuing Bank (as applicable) for purposes of the Loan Documents. Each Lender and each Issuing Bank agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Lender’s or Issuing Bank’s (as applicable) email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
(v) Nothing herein shall prejudice the right of the Administrative Agent, any Lender or any Issuing Bank to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Garrett Motion Inc.), Credit Agreement (Garrett Motion Inc.)
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Agent, including electronic delivery (aif possible) the Administrative upon request by Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Agent (collectively, the “Platform”). Borrower Materials”) by shall notify Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the Administrative Agent’s standard practices, and (b) certain materials shall be deemed received by Agent only upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 Secured Parties on the first page thereofPlatform, (x) by marking and Obligors and Secured Parties acknowledge that “public” information is not segregated from material non-public information on the Platform. The Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESSecured Parties acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Borrower, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDSecured Parties or any other Person for losses, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTclaims, SPECIALdamages, INCIDENTAL OR CONSEQUENTIAL DAMAGESliabilities or expenses of any kind (whether in tort, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt relating to use by any Person of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective or delivery of such communications to such Lender for purposes of Borrower Materials and other information through the Loan DocumentsPlatform or over the internet.
Appears in 2 contracts
Sources: Loan Agreement (School Specialty Inc), Loan Agreement (School Specialty Inc)
Platform. Each (i) The Borrower hereby acknowledges that (a) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntralinksIntraLinks, DebtDomain Syndtrak, ClearPar or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each The Borrower hereby agrees 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 Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to the Borrower or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b9.19)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” 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 the Platform not marked as designated “Public InvestorSide Information.” Notwithstanding the foregoing, the following Borrower shall be under no obligation to ▇▇▇▇ any Borrower Materials shall be deemed to be marked “PUBLIC,.”
(ii) The Platform is provided “as is” unless GEO notifies and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent promptly that or any such document contains MNPI: of its Related Parties (icollectively, the “Agent Parties”) have any liability to the Loan DocumentsBorrower, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (iiwhether in tort, contract or otherwise) any notification of changes in the terms arising out of the Commitments Borrower’s or the Loans and (iii) all information furnished pursuant to Section 5.01(a)Administrative Agent’s transmission of communications through the Platform. “Communications” means, (b) and (e). Each Public Lender agrees to cause at least one individual at collectively, any notice, demand, communication, information, document or other material provided by or on behalf of such Public the Borrower pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent or any Lender by means of electronic communications pursuant to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawthis Section, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLEPlatform.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (DXC Technology Co), Term Loan Credit Agreement (DXC Technology Co)
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by the Administrative Agent, including via e-mail and other electronic delivery (aif possible) upon request by the Administrative Agent will make available to an electronic system maintained by the Lenders and Administrative Agent (“Platform”). Obligor Representative shall notify the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by Administrative Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the materials shall be deemed received by the Administrative Agent’s standard practices, and (b) certain Agent only upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 thereofPlatform. The Platform is provided “as is” and “as available.” The Administrative Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, (x) by marking and expressly disclaims liability for any errors or omissions in Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESLenders acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Borrower, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDany Obligor, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTany Lenders or any other Person for losses, SPECIALclaims, INCIDENTAL OR CONSEQUENTIAL DAMAGESdamages, LOSSES OR EXPENSES liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt relating to use by any Person of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective or delivery of such communications to such Lender for purposes of Borrower Materials, notices and other information through the Loan DocumentsPlatform, any other electronic platform or electronic messaging service, or through the Internet.
Appears in 2 contracts
Sources: Senior Secured Super Priority Debtor in Possession Loan and Security Agreement (Core Scientific, Inc./Tx), Loan and Security Agreement (Core Scientific, Inc./Tx)
Platform. (i) Each of the Borrower hereby acknowledges agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders L/C Issuer and the Issuing other Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). ) may have personnel who do not wish to receive material non-public information with respect to the Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) Each Borrower hereby acknowledges hereby agrees that so long as any Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such Communications shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent Agent, Lead Arranger and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Borrower or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the Administrative Agent and the Lead Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information”.
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “AS IS” AND “AS AVAILABLEAgent Parties”) have any liability to any Borrower, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission of communications through the Platform.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement (RCM Technologies, Inc.), Loan Agreement (RCM Technologies, Inc.)
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Administrative Agent, including electronic delivery (aif requested by Administrative Agent) the to an electronic system maintained by it (“Platform”). Borrower shall notify Administrative Agent will make available to of each posting of Borrower Materials on the Lenders Platform (which notice may be communicated electronically in accordance with Section 14.3.2) and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinksthe Platform shall be deemed received by Administrative Agent only upon its receipt of such notice. Communications, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 thereofPlatform. The Platform is provided “as is” and “as available.” Administrative Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, (x) by marking and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESNo Administrative Agent Indemnitee shall have any liability to Obligors, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDLenders or any other Person for losses, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTclaims, SPECIALdamages, INCIDENTAL OR CONSEQUENTIAL DAMAGESliabilities or expenses of any kind (whether in tort, LOSSES OR EXPENSES (WHETHER IN TORTcontract or otherwise) relating to use by any Person of the Platform, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETincluding any unintended recipient, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective nor for delivery of such communications Borrower Materials and other information via the Platform, internet, e-mail, or any other electronic platform or messaging system. Administrative Agent may, but is not obligated to, make Communications available to such Lender for purposes of the Loan DocumentsObligors and Lenders by posting them on IntraLinksTM, DebtDomain, SyndTrak, ClearPar or other electronic platform.
Appears in 2 contracts
Sources: Credit Agreement (Solaris Energy Infrastructure, Inc.), Senior Secured Term Loan Agreement (Solaris Energy Infrastructure, Inc.)
Platform. Each Borrower hereby acknowledges that Materials may be delivered pursuant to procedures approved by the Administrative Agent, including electronic delivery (aif possible) upon request by the Administrative Agent will make to an electronic system maintained by the Administrative Agent (“Platform”). The Borrower Representative shall notify the Administrative Agent of each posting of Borrower Materials on the Platform and the materials shall be deemed received by the Administrative Agent only upon its receipt of such notice. Borrower Materials and other information relating to this credit facility may be made available to the Lenders on the Platform. The Platform is provided “as is” and “as available.” The Administrative Agent does not warrant the Issuing Lenders materials and/or accuracy or completeness of any information provided byon the Platform nor the adequacy or functioning of the Platform, and expressly disclaims liability for any errors or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting omissions in the Borrower Materials on Intralinks, DebtDomain or another similar electronic system (any issues involving the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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 shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTThe Lenders acknowledge that Borrower Materials may include material non- public information of the Credit Parties and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Credit Party’s securities. Each Lender agrees that receipt None of notice to it (as provided above) specifying that the communications Administrative Agent or any Related Party thereof shall have been posted any liability to the Credit Parties, the Lenders or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) relating to use by any Person of the Platform shall constitute effective or delivery of such communications to such Lender for purposes of Borrower Materials and other information through the Loan Documents.Platform
Appears in 2 contracts
Sources: Debtor in Possession Credit Agreement (American Apparel, Inc), Restructuring Support Agreement (American Apparel, Inc)
Platform. (i) Each Borrower hereby acknowledges agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders L/C Issuers and the Issuing other Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). ) may have personnel who do not wish to receive material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) Each Borrower hereby acknowledges hereby agrees that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such (i) shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials (ii) “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent Agent, the Arrangers and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Loan Party or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information” ”. The Borrowers acknowledge and agree that the DQ List shall be deemed suitable for posting and may be posted by the Administrative Agent on the Platform, including the portion of the Platform that is designated for Public Lenders.
(iii) The Platform is provided “as is” and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLEas available.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it The Agent Parties (as provided abovedefined below) specifying that do not warrant the communications adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have been posted any liability to the Platform shall constitute effective delivery Borrowers or the other Loan Parties, any Lender or any other Person or entity for damages of such any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications to such Lender for purposes of through the Loan DocumentsPlatform.
Appears in 2 contracts
Sources: Credit Agreement (Steven Madden, Ltd.), Credit Agreement (Steven Madden, Ltd.)
Platform. Each Borrower hereby acknowledges Company further agrees that (a) the Administrative Agent will may make the Communications available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain SyndTrak or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) ). The Borrower hereby acknowledges that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding Debt or Equity Interests that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities, it will, upon request, use commercially reasonable efforts to assist the Administrative Agent in identifying that portion of the Communications that may be distributed to the Public Lenders and that (w1) all Borrower Materials that are to be made available to Public Lenders such Communications 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, ; (x2) by marking Borrower Materials Communications “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, any Affiliate thereof, and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Confidential Information, they shall be treated as set forth in Section 9.12(b14.14)), ; (y3) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (z4) the Administrative Agent and the any Affiliate thereof and the Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.”
Appears in 2 contracts
Sources: Credit Agreement (Monro, Inc.), Credit Agreement (Monro Muffler Brake Inc)
Platform. Each Borrower Borrowers hereby acknowledges acknowledge that (a) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Banks Borrower Materials”) Materials by posting the Borrower Materials on IntralinksDebt Domain, DebtDomain IntraLinks, Syndtrak or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower Borrowers hereby agrees 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 shall be deemed to have authorized the Administrative Agent Agent, Issuing Banks and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to Borrowers or their securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b14.11)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” 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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information.” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM PLATFORM, AND EACH EXPRESSLY DISCLAIMS DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH FROM THE PLATFORMBORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE ANY AGENT OR ANY OF ITS RELATED PARTIES PARTY IN CONNECTION WITH ANY SUCH COMMUNICATIONS THE BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESIn no event shall Administrative Agent or any of its Related Parties (collectively, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDthe “Agent Parties”) have any liability to Borrowers, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTany Lender or any other Person for losses, SPECIALclaims, INCIDENTAL OR CONSEQUENTIAL DAMAGESdamages, LOSSES OR EXPENSES liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETarising out of Borrowers’, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt any other Obligor’s or Administrative Agent’s transmission of notice to it (as provided above) specifying that Borrower Materials through the communications have been posted Internet; except to the Platform shall constitute effective delivery extent that a court of competent jurisdiction by final and nonappealable judgment has determined that such losses, claims, damages, liabilities or expenses arising out of Administrative Agent’s transmission of Borrower Materials resulted from the gross negligence or willful misconduct of such communications to such Lender for purposes of the Loan DocumentsAgent Party.
Appears in 2 contracts
Sources: Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Agent, including electronic delivery (aif possible) the Administrative upon request by Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Agent (collectively, the “Borrower MaterialsPlatform”) by ). Borrowers shall notify Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the Administrative Agent’s standard practices, and (b) certain materials shall be deemed received by Agent only upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 thereofPlatform. The Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, (x) by marking and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESObligors and Lenders acknowledge that “public” information may not be segregated from material non-public information on the Platform. Lenders acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Obligors, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDLenders or any other Person for losses, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTclaims, SPECIALdamages, INCIDENTAL OR CONSEQUENTIAL DAMAGESliabilities or expenses of any kind (whether in tort, LOSSES OR EXPENSES (WHETHER IN TORTcontract or otherwise) relating to use by any Person of the Platform, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETincluding any unintended recipient, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective nor for delivery of such communications to such Lender for purposes of Borrower Materials and other information through the Loan DocumentsPlatform, internet, e-mail or any other electronic platform or messaging system.
Appears in 1 contract
Platform. Each Borrower hereby acknowledges Credit Party further agrees that (a) the Administrative Agent will may make the Communications available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain SyndTrak or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) ). The Borrower hereby acknowledges that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or Equity Interests that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that (w1) all Borrower Materials that are to be made available to Public Lenders such Communications 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, ; (x2) by marking Borrower Materials Communications “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, any Affiliate thereof, the Arranger, the LC Issuers and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Confidential Information, they shall be treated as set forth in Section 9.12(bSection 11.15)), ; (y3) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (z4) the Administrative Agent and the any Affiliate thereof and the Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.”
Appears in 1 contract
Platform. Each Borrower (i) The Company hereby acknowledges that (a) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Company hereunder (collectively, the “Borrower Company Materials”) by posting the Borrower Company Materials on IntralinksIntraLinks, DebtDomain Syndtrak, ClearPar or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to the Company or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower The Company hereby agrees that (w) all Borrower Company 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 Company Materials “PUBLIC,” the Borrowers Company shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Company Materials as not containing any MNPI material non-public information with respect to the Company or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Company Materials constitute Information, they shall be treated as set forth in Section 9.12(b9.19)), ; (y) all Borrower Company Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (z) the Administrative Agent shall be entitled to treat any Borrower Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as designated “Public InvestorSide Information.” Notwithstanding the foregoing, the following Borrower Materials Company shall be deemed under no obligation to be marked ▇▇▇▇ any Company Materials “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, .”
(ii) any notification The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of changes the Platform and expressly disclaim liability for errors or omissions in the terms Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Company, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Commitments Company’s, or the Loans and (iii) all information furnished pursuant to Section 5.01(a)Agent’s transmission of communications through the Platform. “Communications” means, (b) and (e). Each Public Lender agrees to cause at least one individual at collectively, any notice, demand, communication, information, document or other material provided by or on behalf of such Public the Company pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Agent or any Lender by means of electronic communications pursuant to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawthis Section, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLEPlatform.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Computer Sciences Corp)
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Administrative Agent, including via e-mail and other electronic delivery (aif possible) the upon request by Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Administrative Agent (collectively, the “Platform”). Borrower Materials”) by shall notify Administrative Agent of each posting the of Borrower Materials on Intralinksthe Platform and the materials shall be deemed received by Administrative Agent only upon its receipt of such notice. Borrower Materials, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, notices to Lenders and (b) certain of the Lenders other information relating to this credit facility may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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 thereofPlatform. The Platform is provided “as is” and “as available.” Administrative Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, (x) by marking and expressly disclaims liability for any errors or omissions in Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESLenders acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Borrower, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDLenders or any other Person for losses, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTclaims, SPECIALdamages, INCIDENTAL OR CONSEQUENTIAL DAMAGESliabilities or expenses of any kind (whether in tort, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt relating to use by any Person of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective or delivery of such communications to such Lender for purposes of Borrower Materials, notices and other information through the Loan DocumentsPlatform, any other electronic platform or electronic messaging service, or through the Internet.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Core Scientific, Inc./Tx)
Platform. Each Borrower hereby acknowledges that (ai) the Administrative each Agent will and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Banks materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons of Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntralinksIntraLinks, DebtDomain Syndtrak, ClearPar or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (bii) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (w) all it will use commercially reasonable efforts to identify that portion of the Borrower Materials that are may be distributed to be made available to the Public Lenders and that (A) all such Borrower Materials 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, ; (xB) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent each Agent, any Affiliate thereof, each Lead Arranger, each Issuing Bank and the Lenders each Lender to treat such Borrower Materials as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided that provided, that, to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b10.12)), ; (yC) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (zD) the Administrative each Agent and any Affiliate thereof and each Lead Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as designated “Public InvestorSide Information.” Notwithstanding the foregoing, the following Borrower shall be under no obligation to ▇▇▇▇ any Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI”. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM PLATFORM, AND EACH EXPRESSLY DISCLAIMS DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH FROM THE PLATFORMBORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE ANY AGENT OR ANY OF ITS RELATED PARTIES PARTY IN CONNECTION WITH ANY SUCH COMMUNICATIONS THE BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESIn no event shall any Agent or any of its Related Parties (collectively, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDthe “Agent Parties”) have any liability to Borrower, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTany Lender, SPECIALany Issuing Bank or any other Person for losses, INCIDENTAL OR CONSEQUENTIAL DAMAGESclaims, LOSSES OR EXPENSES damages, liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETarising out of Borrower’s, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt any Loan Party’s or any Agent’s transmission of notice to it (as provided above) specifying that Borrower Materials or notices through the communications have been posted to Platform, any other electronic platform or electronic messaging service, or through the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan DocumentsInternet.
Appears in 1 contract
Platform. Each 6.4.1 Borrower hereby acknowledges agrees that Administrative Agent, Sole Lead Arranger and Sole Bookrunner may, but shall not be obligated to, make the Communications (aas defined below) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on IntralinksDebt Domain, DebtDomain IntraLinks, Syndtrak or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) ).
6.4.2 Borrower hereby acknowledges that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (wi) all Borrower Materials 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, ; (xii) by marking Borrower Materials Communications “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized Administrative Agent, the Administrative Agent Lenders, Sole Lead Arranger and the Lenders Sole Bookrunner to treat such Borrower Materials Communications as not containing any MNPI material non-public information with respect to Borrower or any Affiliate thereof or their respective securities for purposes of foreign or United States Federal and state securities laws laws; (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (yiii) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Platform; and (ziv) the Administrative Agent Agent, Sole Lead Arranger and Sole Bookrunner shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked designated as “Non-Public InvestorInformation.” Notwithstanding For the foregoingavoidance of doubt, the following Borrower Materials no Communications shall be deemed made available to be marked any Public Lender unless Borrower or any Affiliate of Borrower clearly and conspicuously marks such Communications “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: as set forth in clause (i) of the Loan Documents, immediately preceding sentence.
6.4.3 The Platform is provided “as is” and “as available.” The Agent Parties (iias defined below) any notification do not warrant the accuracy or completeness of changes the Communications or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the terms Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Commitments Communications or the Loans Platform. In no event shall Administrative Agent, Sole Lead Arranger, Sole Bookrunner or any of their Affiliates (collectively, the “Agent Parties”) have any liability to Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of Borrower’s or Agent Party’s transmission or posting of Borrower Materials through the Platform or via email, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to Borrower, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (iii) all information furnished pursuant as opposed to Section 5.01(a), (b) and (edirect or actual damages). Each Public Lender agrees to cause at least one individual at “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of such Public Borrower or any Guarantor pursuant to any Loan Document or the transactions contemplated therein which is distributed to Administrative Agent, Sole Lead Arranger, Sole Bookrunner or any Lender by means of electronic communications pursuant to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawthis Section, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLEPlatform.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 1 contract
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Agent, including electronic delivery (aif possible) the Administrative upon request by Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Agent (collectively, the “Borrower MaterialsPlatform”) by ). Obligors shall notify Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the Administrative Agent’s standard practices, and (b) certain materials shall be deemed received by Agent only upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 Secured Parties on the first page thereofPlatform, (x) by marking and Obligors and Secured Parties acknowledge that “public” information is not segregated from material non-public information on the Platform. The Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESSecured Parties acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Obligors, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDSecured Parties or any other Person for losses, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTclaims, SPECIALdamages, INCIDENTAL OR CONSEQUENTIAL DAMAGESliabilities or expenses of any kind (whether in tort, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt relating to use by any Person of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective or delivery of such communications to such Lender for purposes of Borrower Materials and other information through the Loan DocumentsPlatform or over the internet.
Appears in 1 contract
Sources: Loan and Security Agreement (Advanced Micro Devices Inc)
Platform. (i) Each of the Borrower hereby acknowledges agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders L/C Issuer and the Issuing other Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders (each, a "Public Lender") may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material nonpublic non-public information with respect to GEO, its Subsidiaries the Borrowers or their Affiliates, or the respective securities of any of the foregoing foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons' securities.
(collectively, “MNPI”ii) (each, a “Public Lender”)). Each Borrower hereby acknowledges hereby agrees that so long as any Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such Communications shall be clearly and conspicuously marked “"PUBLIC” " which, at a minimum, shall mean means that the word “"PUBLIC” " shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials “"PUBLIC,” " the Borrowers shall be deemed to have authorized the Administrative Agent Agent, Lead Arranger and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Borrower or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “"PUBLIC” " are permitted to be made available through a portion of the Platform designated as “"Public Investor,” Side Information"; and (zD) the Administrative Agent and the Lead Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “"PUBLIC” " as being suitable only for posting on a portion of the Platform not marked as “designated "Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and Side Information". 99
(iii) all information furnished pursuant to Section 5.01(a), The Platform is provided "as is" and "as available." The Agent Parties (bas defined below) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected do not warrant the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLENo warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the "Agent Parties") have any liability to any Borrower, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Borrower's or the Administrative Agent's transmission of communications through the Platform.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 1 contract
Platform. Each (i) The Borrower hereby acknowledges that (a) the Administrative Super Priority Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders any materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons any Loan Party hereunder or under any other Super Priority Loan Document (collectively, the “Borrower Materials”) available to the Super Priority Lenders by posting the Borrower Materials on Intralinks, DebtDomain or another similar electronic system the Platform.
(the “Platform”ii) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) The Borrower hereby acknowledges that certain of the Super Priority Lenders may be “public-side” Super Priority Lenders (i.e., Super Priority Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, the Borrower or its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Super Priority Lender”)). Each The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Super Priority Lenders and that (w) all such Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Super Priority Agent and the Super Priority Lenders to treat such Borrower Materials as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b10.7)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (z) the Administrative Super Priority Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.”
Appears in 1 contract
Platform. (i) Each Borrower hereby acknowledges agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders L/C Issuers and the Issuing other Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). ) may have personnel who do not wish to receive material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) Each Borrower hereby acknowledges hereby agrees that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such (i) shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials (ii) “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent Agent, the Lead Arrangers and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Loan Party or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the Administrative Agent and the Lead Arrangers shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information” ”. The Borrowers acknowledge and agree that the DQ List shall be deemed suitable for posting and may be posted by the Administrative Agent on the Platform, including the portion of the Platform that is designated for Public Lenders.
(iii) The Platform is provided “as is” and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLEas available.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it The Agent Parties (as provided abovedefined below) specifying that do not warrant the communications adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have been posted any liability to the Platform shall constitute effective delivery Borrowers or the other Loan Parties, any Lender or any other Person or entity for damages of such any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications to such Lender for purposes of through the Loan DocumentsPlatform.
Appears in 1 contract
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Agent, including electronic delivery (aif possible) the Administrative upon request by Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Agent (collectively, the “Borrower Materials”) by "Platform"). Borrowers shall notify Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the Administrative Agent’s standard practices, and (b) certain materials shall be deemed received by Agent only upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 thereofPlatform. The Platform is provided "as is" and "as available." Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, (x) by marking and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESLenders acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to certain of the Lenders (each, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDa “Public Lender”) who may have personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor's securities. No Agent Indemnitee shall have any liability to Borrowers, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTLenders or any other Person for losses, SPECIALclaims, INCIDENTAL OR CONSEQUENTIAL DAMAGESdamages, LOSSES OR EXPENSES liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTrelating to use by any Person of the Platform or delivery of Borrower Materials and other information through the Platform. Each Lender The Borrower Agent hereby agrees that receipt it will use commercially reasonable efforts to identify that portion of notice the Borrower Materials that may be distributed to it the Public Lenders and that (as provided abovea) specifying all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC,” which, at a minimum, shall mean that the communications word “PUBLIC” shall appear prominently on the first page thereof; (b) by marking Borrower Materials “PUBLIC,” the Borrower Agent shall be deemed to have been posted authorized the Agent, the Lenders and the Issuing Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Platform shall constitute effective delivery of such communications to such Lender Borrower or its securities for purposes of U.S. federal and state securities laws (provided, however, that to the Loan Documentsextent such Borrower Materials constitute Information, they will be treated as set forth in Section 14.12); (c) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Side Information”; and (d) the Agent and the Joint Lead Arrangers shall be entitled to treat Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated as “Public Side Information”.
Appears in 1 contract
Sources: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Platform. Each Borrower Borrowers hereby acknowledges acknowledge that (a) the Administrative Agent will may, but shall not be obligated to, make available to Lenders the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) Materials by posting the Borrower Materials on IntralinksDebt Domain, DebtDomain IntraLinks, Syndtrak or another similar Amended & Restated Loan Agreement (PF) electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower Borrowers hereby agrees 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 shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to Borrowers or their securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b15.13)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” 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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information.” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM PLATFORM, AND EACH EXPRESSLY DISCLAIMS DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH FROM THE PLATFORMBORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE ANY AGENT OR ANY OF ITS RELATED PARTIES PARTY IN CONNECTION WITH ANY SUCH COMMUNICATIONS THE BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESIn no event shall Administrative Agent or any of its Related Parties (collectively, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDthe “Agent Parties”) have any liability to Borrowers, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTany Lender or any other Person for losses, SPECIALclaims, INCIDENTAL OR CONSEQUENTIAL DAMAGESdamages, LOSSES OR EXPENSES liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETarising out of Borrowers’, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt any other Obligor’s or Administrative Agent’s transmission of notice to it (as provided above) specifying that Borrower Materials through the communications have been posted Internet; except to the Platform shall constitute effective delivery extent that a court of competent jurisdiction by final and non-appealable judgment has determined that such losses, claims, damages, liabilities or expenses arising out of Administrative Agent’s transmission of Borrower Materials resulted from the gross negligence or willful misconduct of such communications to such Lender for purposes of the Loan DocumentsAgent Party.
Appears in 1 contract
Sources: Loan Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Platform. (i) Each Borrower hereby acknowledges Group Company agrees that (aA) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Communications (as defined hereinafter) (including of materials and/or or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Borrowers hereunder (collectively, the “Borrower Materials”)) available to Issuing Bank and the Lenders by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (bB) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, its Subsidiaries the Group Companies or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each Borrower Group Company hereby agrees 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 Group Companies shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to the Group Companies or their securities for purposes of foreign or United States Federal federal and state securities laws (provided that that, to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)9.12), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” ”. Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” ”, unless GEO any Group Company notifies the Administrative Agent promptly that any such document contains MNPImaterial non-public information: (i1) the Loan Documents, and (ii2) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e)Facility. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawApplicable Law, including United States Federal and state securities laws, to make reference to communications Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRDmaterial non-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted public information with respect to the Platform shall constitute effective delivery of such communications to such Lender Group Companies or their securities for purposes of United States Federal or state securities laws.
(ii) The Platform is provided “as is” and “as available”. The Agent Parties (as defined hereinafter) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Group Companies, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental, consequential, punitive or exemplary damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Group Company’s or the Administrative Agent’s transmission of communications through the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Group Company pursuant to any Loan DocumentsDocument or the transactions contemplated therein which is distributed to the Administrative Agent, any Lender or Issuing Bank by means of electronic communications pursuant to this Section, including through the Platform.
Appears in 1 contract
Sources: Credit Agreement (IBEX LTD)
Platform. Each (i) The Borrower hereby acknowledges that (a) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntralinksIntraLinks, DebtDomain Syndtrak, ClearPar or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each The Borrower hereby agrees 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 Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to the Borrower or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b9.19)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” 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 the Platform not marked as designated “Public InvestorSide Information.” Notwithstanding the foregoing, the following Borrower shall be under no obligation to ▇▇▇▇ any Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, .”
(ii) any notification of changes in The Platform is provided “as is” and “as available.” The Agent Parties do not warrant the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KINDNo warranty of any kind, EXPRESSexpress, IMPLIED OR STATUTORYimplied or statutory, INCLUDING ANY WARRANTY OF MERCHANTABILITYincluding, FITNESS FOR A PARTICULAR PURPOSEwithout limitation, NONINFRINGEMENT OF THIRDany warranty of merchantability, fitness for a particular purpose, non-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESinfringement of third-party rights or freedom from viruses or other code defects, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.is made by any Agent Party in connection with 55 #90857912v6
Appears in 1 contract
Platform. Each Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinksshall be delivered pursuant to procedures approved by Agent, DebtDomain or another similar including electronic delivery (if possible) upon request by Agent to an electronic system maintained by Agent (the “Platform”) or otherwise ). Borrowers shall notify Agent of each posting of Borrower Materials to be provided by them, which notice may be communicated electronically in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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 shall be deemed to have authorized the Administrative Agent Section 15.3.2 and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed received by Agent only upon its receipt of such notice. Borrower Materials, Reports and other information relating to this credit facility may be marked made available to Lenders on the Platform. The Platform is provided “PUBLIC,as is” unless GEO notifies and “as available.” Agent does not warrant the Administrative Agent promptly that accuracy or completeness of any such document contains MNPI: (i) information on the Loan DocumentsPlatform nor the adequacy or functioning of the Platform, (ii) and expressly disclaims liability for any notification of changes errors or omissions in the terms Borrower Materials or any issues involving the Platform, except to the extent such errors, omissions or issues arise as a result of the Commitments Agent’s gross negligence or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMwillful misconduct. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS, REPORTS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESSecured Parties acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. Agent, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDeach Secured Party, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTeach Obligor and each Lender acknowledge that (a) the information on the Platform may include material non-public information concerning the Borrower or a Subsidiary, SPECIALas the case may be, INCIDENTAL OR CONSEQUENTIAL DAMAGES(b) it has developed compliance procedures regarding the use of material non-public information, LOSSES OR EXPENSES and (WHETHER IN TORTc) it will handle such material non-public information in accordance with Applicable Law. No Agent Indemnitee shall have any liability to Borrowers, CONTRACT OR OTHERWISESecured Parties or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETrelating to use by any Person of the Platform or delivery of Borrower Materials and other information through the Platform or over the internet, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted except to the Platform shall constitute effective delivery extent such losses, claims, damages, liabilities or expenses of such communications to such Lender for purposes any kind (whether in tort, contract or otherwise) arise as a result of the Loan DocumentsAgent’s gross negligence or willful misconduct.
Appears in 1 contract
Sources: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Administrative Agent, including electronic delivery (aif possible) the upon request by Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Administrative Agent (collectively, the “Borrower MaterialsPlatform”) by ). Borrowers shall notify Administrative Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the materials shall be deemed received by Administrative Agent’s standard practices, and (b) certain Agent only upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 Secured Parties on the first page thereofPlatform, (x) by marking and Obligors and Secured Parties acknowledge that “public” information is not segregated from material non-public information on the Platform. The Platform is provided “as is” and “as available.” Administrative Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESSecured Parties acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Borrowers, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDSecured Parties or any other Person for losses, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTclaims, SPECIALdamages, INCIDENTAL OR CONSEQUENTIAL DAMAGESliabilities or expenses of any kind (whether in tort, LOSSES OR EXPENSES (WHETHER IN TORTcontract or otherwise) relating to use by any Person of the Platform[ or], CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETincluding any unintended recipient, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective nor for delivery of such communications to such Lender for purposes of Borrower Materials and other information [through]via the Loan DocumentsPlatform[ or over the], internet, e-mail or any other electronic platform or messaging system.
Appears in 1 contract
Sources: First Amendment Agreement (United Natural Foods Inc)
Platform. Each (i) The Borrower hereby acknowledges that (a) the Administrative Agent will and/or the Arranger may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders any materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons any Loan Party hereunder or under any other Loan Document (collectively, the “Borrower Materials”) available to the Lenders and the LC Issuing Lender by posting the Borrower Materials on Intralinks, DebtDomain or another similar electronic system the Platform.
(the “Platform”ii) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) The Borrower hereby acknowledges that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, the Borrower or its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, the Arranger, the LC Issuing Lender and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b10.7)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information.”
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Borrower Materials or the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Borrower Materials. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Borrower Materials or the Platform. In no event shall the Administrative Agent or any of its Related Parties 90731114_8 (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEAgent Parties”) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted any liability to the Platform shall constitute effective delivery Borrower, any other Loan Party, any Lender, the LC Issuing Lender or any other Person for damages of such communications to such Lender for purposes any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any other Loan DocumentsParty’s or any Agent Party’s transmission of communications through the Platform.
Appears in 1 contract
Platform. Each Borrower hereby acknowledges (i) The Parent (on behalf of itself and each other Loan Party) agrees that (aA) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Communications (as defined below) (including of materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Parent hereunder (collectively, the “Borrower Materials”)) available to the other Lenders by posting the Borrower Materials Communications on Debt Domain, Intralinks, DebtDomain Syndtrak or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices), and (bB) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, the Parent or its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each Borrower The Parent hereby agrees (on behalf of itself and each other Loan Party) 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 Parent shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to the Loan Parties or their securities for purposes of foreign or United States Federal federal and state securities laws (provided provided, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b9.12)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” ”, unless GEO the Parent notifies the Administrative Agent promptly that any such document contains MNPImaterial non-public information: (i1) the Loan Documents, Documents and (ii2) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e)Facilities. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawApplicable Law, including United States Federal and state securities laws, to make reference to communications Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRDmaterial non-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted public information with respect to the Platform shall constitute effective delivery of such communications to such Lender Loan Parties or their securities for purposes of United States Federal or state securities laws.
(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Parent or the other Loan DocumentsParties, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental, consequential, punitive or exemplary damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Parent’s, any other Loan Party’s or the Administrative Agent’s transmission of communications through the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Parent or any other Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent or any Lender by means of electronic communications pursuant to this Section, including through the Platform.
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Platform. Each Borrower hereby acknowledges that (ai) the Administrative each Agent will and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Banks materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons of Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntralinksIntraLinks, DebtDomain Syndtrak, ClearPar or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (bii) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (w) all it will use commercially reasonable efforts to identify that portion of the Borrower Materials that are may be distributed to be made available to the Public Lenders and that (A) all such Borrower Materials 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, ; (xB) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent each Agent, any Affiliate thereof, each Lead Arranger, each Issuing Bank and the Lenders each Lender to treat such Borrower Materials as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided that provided, that, to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b10.12)), ; (yC) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (zD) the Administrative each Agent and any Affiliate thereof and each Lead Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as designated “Public InvestorSide Information.” Notwithstanding the foregoing, the following Borrower shall be under no obligation to mark any Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI”. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM PLATFORM, AND EACH EXPRESSLY DISCLAIMS DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH FROM THE PLATFORMBORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE ANY AGENT OR ANY OF ITS RELATED PARTIES PARTY IN CONNECTION WITH ANY SUCH COMMUNICATIONS THE BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESIn no event shall any Agent or any of its Related Parties (collectively, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDthe “Agent Parties”) have any liability to Borrower, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTany Lender, SPECIALany Issuing Bank or any other Person for losses, INCIDENTAL OR CONSEQUENTIAL DAMAGESclaims, LOSSES OR EXPENSES damages, liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETarising out of Borrower’s, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt any Loan Party’s or any Agent’s transmission of notice to it (as provided above) specifying that Borrower Materials or notices through the communications have been posted to Platform, any other electronic platform or electronic messaging service, or through the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan DocumentsInternet.
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Platform. Each (i) The Borrower hereby acknowledges that (a) the Administrative Agent will and/or the Arranger may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders any materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons any Loan Party hereunder or under any other Loan Document (collectively, the “Borrower Materials”) available to the Lenders by posting the Borrower Materials on Intralinks, DebtDomain or another similar electronic system the Platform.
(the “Platform”ii) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) The Borrower hereby acknowledges that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, the Borrower or its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, the Arranger and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b10.7)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information.”
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Borrower Materials or the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Borrower Materials. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Borrower Materials or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEAgent Parties”) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted any liability to the Platform shall constitute effective delivery Borrower, any other Loan Party, any Lender or any other Person for damages of such communications to such Lender for purposes any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any other Loan DocumentsParty’s or any Agent Party’s transmission of communications through the Platform.
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Platform. Each (i) The Borrower hereby acknowledges agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders L/C Issuer and the Issuing other Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each ) may have personnel who do not wish to receive material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) The Borrower hereby agrees that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such (i) shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials (ii) “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the - 132 - Administrative Agent Agent, Lead Arranger and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Loan Party or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the Administrative Agent and the Lead Arrangers shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information” ”. The Borrower acknowledges and agrees that the DQ List shall be deemed suitable for posting and may be posted by the Administrative Agent on the Platform, including the portion of the Platform designated for Public Lenders. The Borrower acknowledges and agrees that the DQ List shall be deemed suitable for posting and may contain MNPI. THE PLATFORM IS PROVIDED be posted by the Administrative Agent on the Platform, including the portion of the Platform that is designated for Public Lenders.
(iii) The Platform is provided “AS ISas is” AND and “AS AVAILABLEas available.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it The Agent Parties (as provided abovedefined below) specifying that do not warrant the communications adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have been posted any liability to the Platform shall constitute effective delivery Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of such any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications to such Lender for purposes of through the Loan DocumentsPlatform.
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Platform. Each (i) The Borrower hereby acknowledges agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders L/C Issuer and the Issuing other Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each ) may have personnel who do not wish to receive material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) The Borrower hereby acknowledges and agrees that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such Communications (i) shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials such Communications (ii) “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, Lead Arranger and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Loan Party or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the Administrative Agent and the Lead Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information”.
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEAgent Parties”) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted any liability to the Platform shall constitute effective delivery Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of such any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications to such Lender for purposes of through the Loan DocumentsPlatform.
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Platform. (i) Each Borrower hereby acknowledges agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders L/C Issuer and the Issuing other Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). ) may have personnel who do not wish to receive material non-public information with respect to the Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) Each Borrower hereby acknowledges hereby agrees that so long as any Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such (i) shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials (ii) “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent Agent, and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Borrower or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the Administrative Agent shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information”.
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEAgent Parties”) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted any liability to the Platform shall constitute effective delivery Borrowers, any Lender or any other Person or entity for damages of such any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission of communications to such Lender for purposes of through the Loan DocumentsPlatform.
Appears in 1 contract
Platform. Each (a) Borrower agrees that Administrative Agent and Sole Lead Arranger may, but shall not be obligated to, make the Communications (as defined below) available to the Lenders by posting the Communications on Debt Domain, IntraLinks, Syndtrak or a substantially similar electronic transmission system (the "Platform").
(b) Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders (each, a "Public Lender") may be “public-side” Lenders (i.e., Lenders that have personnel who do not wish to receive material nonpublic non-public information with respect to GEOBorrower or its Affiliates, its Subsidiaries or their the respective securities of any of the foregoing (collectivelyforegoing, “MNPI”) (each, a “Public Lender”))and who may be engaged in investment and other market-related activities with respect to such Persons' securities. Each Borrower hereby agrees that (wi) all Borrower Materials 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, ; (xii) by marking Borrower Materials “Communications "PUBLIC,” the Borrowers " Borrower shall be deemed to have authorized Administrative Agent, the Administrative Agent Lenders, and the Lenders Sole Lead Arranger to treat such Borrower Materials Communications as not containing any MNPI material non-public information with respect to Borrower or any Affiliate thereof or their respective securities for purposes of foreign or United States Federal federal and state securities laws laws; (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (yiii) all Borrower Materials Communications marked “"PUBLIC” " are permitted to be made available through a portion of the Platform designated as “Public Investor,” Platform; and (ziv) the Administrative Agent and Sole Lead Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “"PUBLIC” " as being suitable only for posting on a portion of the Platform designated as "Non-Public Information."
(c) The Platform is provided "as is" and "as available." The Agent Parties (as defined below) do not marked as “Public Investor.” Notwithstanding warrant the foregoingaccuracy or completeness of the Communications or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall Administrative Agent, Sole Lead Arranger, or any of their Affiliates (collectively, the following "Agent Parties") have any liability to Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of Borrower's or Agent Party's transmission or posting of Borrower Materials Information through the Platform or via email, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall be deemed any Agent Party have any liability to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that Borrower, any such document contains MNPI: Lender or any other Person for indirect, special, incidental, consequential or punitive damages (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments as opposed to direct or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (eactual damages). Each Public Lender agrees to cause at least one individual at "Communications" means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of such Public Borrower or any Guarantor pursuant to any Loan Document or the transactions contemplated therein which is distributed to Administrative Agent, Sole Lead Arranger, or any Lender by means of electronic communications pursuant to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawthis Section, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLEPlatform.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (America First Multifamily Investors, L.P.)
Platform. (i) Each Borrower hereby acknowledges that (ax) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons hereunder Borrowers or any other Loan Party under any Loan Document (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks, DebtDomain Intralinks or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (by) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEOGBT (or any Parent Entity), its Subsidiaries the Borrower, any Subsidiary or any of their respective securities of any of the foregoing securities) (collectively, the “MNPIPublic Lender Information”) (each, and each such Lender, a “Public Lender”)). Each Borrower hereby agrees 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, (xA) by marking Borrower Materials “PUBLIC,” the Borrowers such Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to GBT (or any Parent Entity), the Borrower, any Subsidiary or any of their respective securities for purposes of foreign or United States Federal federal and state securities laws (provided provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b10.08)), ; (yB) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” ”; and (zC) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC SIDE” or “PUBLIC” as being shall be deemed to contain information that is not Public Lender Information and shall not be suitable only for posting on a portion of the Platform not marked designated as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, ”
(ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawLaw, including United States Federal and state securities laws, to make reference to Borrower Materials or other communications that are not made available through the “Public Side Lender Information” portion of the Platform and that may contain MNPI. material nonpublic information with respect to GBT (or any Parent Entity), the Borrower, any Subsidiary or any of their respective securities for purposes of United States Federal or state securities laws.
(iii) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS OTHER AGENT-RELATED PARTIES PERSON WARRANTS THE ACCURACY OR COMPLETENESS OF ANY THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMCOMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS OTHER AGENT-RELATED PARTIES PERSON IN CONNECTION WITH ANY SUCH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS OTHER AGENT-RELATED PARTIES PERSON HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESLOAN PARTY, ANY SECURED PARTY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Global Business Travel Group, Inc.)
Platform. Each (i) The Borrower hereby acknowledges (on behalf of itself and each other Loan Party) agrees that (aA) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Communications (as defined hereinafter) (including of materials and/or or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Borrower hereunder (collectively, the “Borrower Materials”)) available to the Issuing Banks and the Lenders by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (bB) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, the Borrower or its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each The Borrower hereby agrees 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 Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to the Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided that that, to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)9.12), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” ”. Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” ”, unless GEO the Borrower notifies the Administrative Agent promptly that any such document contains MNPImaterial non-public information: (i1) the Loan Documents, and (ii2) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e)Facility. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawApplicable Law, including United States Federal and state securities laws, to make reference to communications Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRDmaterial non-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted public information with respect to the Platform shall constitute effective delivery of such communications to such Lender Borrower or its securities for purposes of United States Federal or state securities laws.
(ii) The Platform is provided “as is” and “as available”. The Agent Parties (as defined hereinafter) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower or the other Loan DocumentsParties, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental, consequential, punitive or exemplary damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any other Loan Party’s or the Administrative Agent’s transmission of communications through the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Borrower or any other Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through the Platform.
Appears in 1 contract
Platform. (i) Each Borrower hereby acknowledges Loan Party agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders L/C Issuer and the Issuing other Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). ) may have personnel who do not wish to receive material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) Each Borrower Loan Party hereby agrees that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such (i) shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials (ii) “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, Lead Arranger and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Loan Party or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the Administrative Agent and the Lead Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information”.
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, 131 including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEAgent Parties”) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted any liability to the Platform shall constitute effective delivery Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications through the Platform, except to the extent such communications liability is determined by a court of competent jurisdiction by final and non-appealable judgment to such Lender for purposes have resulted from the gross negligence, willful misconduct, fraud or other illegal acts of the Loan Documentsany Agent Party.
Appears in 1 contract
Sources: Credit Agreement (Cantor Fitzgerald Income Trust, Inc.)
Platform. Each (i) The Borrower hereby acknowledges (on behalf of itself and each other Loan Party) agrees that (aA) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Communications (as defined below) (including of materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Borrower hereunder (collectively, the “Borrower Materials”)) available to the Issuing Banks and the other Lenders by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (bB) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, the Borrower or its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each The Borrower hereby agrees 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 Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to the Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided provided, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b9.12)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” ”, unless GEO the Borrower notifies the Administrative Agent promptly that any such document contains MNPImaterial non-public information: (i1) the Loan Documents, Documents and (ii2) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e)Facilities. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawApplicable Law, including United States Federal and state securities laws, to make reference to communications Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRDmaterial non-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted public information with respect to the Platform shall constitute effective delivery of such communications to such Lender Borrower or its securities for purposes of United States Federal or state securities laws.
(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower or the other Loan DocumentsParties, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental, consequential, punitive or exemplary damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any other Loan Party’s or the Administrative Agent’s transmission of communications through the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Borrower or any other Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through the Platform.
Appears in 1 contract
Platform. Each (A) The Borrower hereby acknowledges that (ai) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks, DebtDomain Intralinks or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (bii) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, the Borrower or its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each The Borrower hereby agrees 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 Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to the Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the The following Borrower Materials shall be deemed to be marked “PUBLIC,” ”, unless GEO the Borrower notifies the Administrative Agent promptly that any such document contains MNPImaterial non-public information: (i1) the Loan Documents, Transaction Documents and (ii2) any notification of changes in the terms of the Commitments Transaction Documents; provided, however, that the parties acknowledge and agree that the fees payable hereunder are sensitive proprietary information and shall not be marked, treated as, or considered “PUBLIC” in any respect. Notwithstanding anything herein to the Loans contrary, any and all Borrower Materials are subject to the confidentiality provisions of Section 10.16.
(iiiB) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPImaterial non-public information with respect to any Transaction Party or its securities for purposes of United States Federal or state securities laws. The Borrower shall not have any responsibility for such Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Transaction Documents.
(C) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” ”. NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMCOMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESTHE MEMBER, THE BORROWER, ANY SECURED PARTY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ MEMBER’S, THE BORROWER’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE PLATFORM, ANY OTHER ELECTRONIC PLATFORM OR ELECTRONIC MESSAGING SERVICE OR THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(D) The Administrative Agent agrees that the receipt of the communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the communications to the Administrative Agent for purposes of the Transaction Documents. Each Lender agrees that receipt of notice to it (as provided abovein the next sentence) specifying that the communications have been posted to the Platform shall constitute effective delivery of such the communications to such Lender for purposes of the Loan Transaction Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address.
(E) Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give notice or other communications pursuant to any Transaction Document in any other manner specified in such Transaction Document.
Appears in 1 contract
Platform. Each Borrower hereby acknowledges that (ai) the Administrative each Agent will and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Banks materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons of Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntralinksIntraLinks, DebtDomain Syndtrak, ClearPar or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (bii) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such persons’ securities. Each Borrower hereby agrees that (w) all it will use commercially reasonable efforts to identify that portion of the Borrower Materials that are may be distributed to be made available to the Public Lenders and that (A) all such Borrower Materials 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, ; (xB) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent each Agent, any Affiliate thereof, each Lead Arranger, each Issuing Bank and the Lenders each Lender to treat such Borrower Materials as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided that provided, that, to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b10.12)), ; (yC) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (zD) the Administrative each Agent and any Affiliate thereof and each Lead Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as designated “Public InvestorSide Information.” Notwithstanding the foregoing, the following Borrower shall be under no obligation to ▇▇▇▇ any Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI”. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM PLATFORM, AND EACH EXPRESSLY DISCLAIMS DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH FROM THE PLATFORMBORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE ANY AGENT OR ANY OF ITS RELATED PARTIES PARTY IN CONNECTION WITH ANY SUCH COMMUNICATIONS THE BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESIn no event shall any Agent or any of its Related Parties (collectively, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDthe “Agent Parties”) have any liability to Borrower, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTany Lender, SPECIALany Issuing Bank or any other person for losses, INCIDENTAL OR CONSEQUENTIAL DAMAGESclaims, LOSSES OR EXPENSES damages, liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETarising out of Borrower’s, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt any Loan Party’s or any Agent’s transmission of notice to it (as provided above) specifying that Borrower Materials or notices through the communications have been posted to Platform, any other electronic platform or electronic messaging service, or through the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan DocumentsInternet.
Appears in 1 contract
Platform. Each The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lenders Banks materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks, DebtDomain Intralinks or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, the Borrower or its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each The Borrower hereby agrees 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 Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material nonpublic information with respect to the Borrower or its securities for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b10.8)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO the Borrower notifies the Administrative Agent promptly that any such document contains MNPImaterial nonpublic information: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans Loan Documents and (iii) all information furnished delivered pursuant to Section 5.01(a6.1 other than budgets delivered pursuant to Section 6.1(vii), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Brookfield Residential Properties Inc.)
Platform. Each The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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 shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPIthat: (i) Administrative Agent may make available to Lenders Specified Materials by posting some or all of the Loan Documents, Specified Materials on an Electronic Platform; (ii) the distribution of materials and information through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with any notification of changes in such distribution, the terms of the Commitments or the Loans Electronic Platform is provided and used on an “AS IS,” “AS AVAILABLE” basis; and (iii) all information furnished pursuant to Section 5.01(a)neither Administrative Agent nor any of its Affiliates warrants the accuracy, (b) and (e). Each Public Lender agrees to cause at least one individual at completeness, timeliness, sufficiency or on behalf sequencing of such Public Lender to at all times have selected the “Private Side Information” or similar designation Specified Materials posted on the content declaration screen of the Platform in order to enable such Public Lender or its delegateElectronic Platform. ADMINISTRATIVE AGENT, in accordance with such Public Lender’s compliance procedures and applicable lawON BEHALF OF ITSELF AND ITS AFFILIATES, including United States Federal and state securities lawsEXPRESSLY AND SPECIFICALLY DISCLAIMS, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. WITH RESPECT TO THE PLATFORM IS PROVIDED “AS IS” ELECTRONIC PLATFORM, DELAYS IN POSTING OR DELIVERY, OR PROBLEMS ACCESSING THE SPECIFIED MATERIALS POSTED ON THE ELECTRONIC PLATFORM, AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS ANY LOSSES, COSTS, EXPENSES OR OMISSIONS LIABILITIES THAT MAY BE SUFFERED OR INCURRED IN ANY COMMUNICATIONS ON OR THROUGH CONNECTION WITH THE ELECTRONIC PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSEPURPOSES, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES AFFILIATES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender hereby agrees that receipt of notice to it (as provided abovein accordance with Section 10.02(a)(i) specifying that the communications any Specified Materials have been posted to the Electronic Platform shall shall, for purposes of this Agreement, constitute effective delivery of such communications to such Lender for purposes of the Loan Documentssuch Specified Materials.
(1) ACKNOWLEDGES THAT THE SPECIFIED MATERIALS, INCLUDING INFORMATION FURNISHED TO IT BY ANY CREDIT PARTY OR ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THE LOAN DOCUMENTS, MAY INCLUDE MATERIAL, NON PUBLIC INFORMATION CONCERNING ANY OF THE CREDIT PARTIES AND THEIR RESPECTIVE SUBSIDIARIES OR AFFILIATES OR THEIR RESPECTIVE SECURITIES; AND (2) CONFIRMS THAT: (I) IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL, NON PUBLIC INFORMATION; (II) IT WILL HANDLE SUCH MATERIAL, NON PUBLIC INFORMATION IN ACCORDANCE WITH SUCH PROCEDURES AND APPLICABLE LAWS, INCLUDE FEDERAL AND STATE SECURITIES LAWS; AND (III) IT HAS IDENTIFIED IN ITS ADMINISTRATIVE DETAIL FORM A CONTACT PERSON WHO MAY RECEIVE SPECIFIED MATERIALS THAT MAY CONTAIN MATERIAL, NON PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAWS.
Appears in 1 contract
Sources: Credit Agreement (FlexShopper, Inc.)
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Agent, including electronic delivery (aif possible) the Administrative upon request by Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Agent (collectively, the “Borrower MaterialsPlatform”) by ). Obligors shall notify Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the Administrative Agent’s standard practices, and (b) certain materials shall be deemed received by Agent only upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 Secured Parties on the first page thereofPlatform, (x) by marking and Obligors and Secured Parties acknowledge that “public” information is not segregated from material non-public information on the Platform. The Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO 108 WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO OBLIGOR MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESSecured Parties acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Obligors, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDSecured Parties or any other Person for losses, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTclaims, SPECIALdamages, INCIDENTAL OR CONSEQUENTIAL DAMAGESliabilities or expenses of any kind (whether in tort, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt relating to use by any Person of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective or delivery of such communications to such Lender for purposes of Borrower Materials and other information through the Loan DocumentsPlatform or over the internet.
Appears in 1 contract
Platform. Each Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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 shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPIthat: (i) Administrative Agent may make available to Lending Parties Specified Materials by posting some or all of the Loan Documents, Specified Materials on an Electronic Platform; (ii) the distribution of materials and information through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with any notification of changes in such distribution, the terms of the Commitments or the Loans Electronic Platform is provided and used on an “AS IS,” “AS AVAILABLE” basis; and (iii) all information furnished pursuant to Section 5.01(a)neither Administrative Agent nor any of its Affiliates warrants the accuracy, (b) and (e). Each Public Lender agrees to cause at least one individual at completeness, timeliness, sufficiency or on behalf sequencing of such Public Lender to at all times have selected the “Private Side Information” or similar designation Specified Materials posted on the content declaration screen of the Platform in order to enable such Public Lender or its delegateElectronic Platform. ADMINISTRATIVE AGENT, in accordance with such Public Lender’s compliance procedures and applicable lawON BEHALF OF ITSELF AND ITS AFFILIATES, including United States Federal and state securities lawsEXPRESSLY AND SPECIFICALLY DISCLAIMS, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. WITH RESPECT TO THE PLATFORM IS PROVIDED “AS IS” ELECTRONIC PLATFORM, DELAYS IN POSTING OR DELIVERY, OR PROBLEMS ACCESSING THE SPECIFIED MATERIALS POSTED ON THE ELECTRONIC PLATFORM, AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS ANY LOSSES, COSTS, EXPENSES OR OMISSIONS LIABILITIES THAT MAY BE SUFFERED OR INCURRED IN ANY COMMUNICATIONS ON OR THROUGH CONNECTION WITH THE ELECTRONIC PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSEPURPOSES, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES AFFILIATES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender Lending Party hereby agrees that receipt of notice to it (as provided abovein accordance with Section 10.02(b)(i) specifying that the communications any Specified Materials have been posted to the Electronic Platform shall shall, for purposes of this Agreement, constitute effective delivery to such Lending Party of such communications to such Lender for purposes of the Loan DocumentsSpecified Materials. EACH LENDING PARTY: (1) ACKNOWLEDGES THAT THE SPECIFIED MATERIALS, INCLUDING INFORMATION FURNISHED TO IT BY ANY LOAN PARTY OR ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THE LOAN DOCUMENTS, MAY INCLUDE MATERIAL, NON-PUBLIC INFORMATION CONCERNING THE LOAN PARTIES AND THEIR RESPECTIVE SUBSIDIARIES OR AFFILIATES OR THEIR RESPECTIVE SECURITIES; AND (2) CONFIRMS THAT: (I) IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL, NON-PUBLIC INFORMATION; (II) IT WILL HANDLE SUCH MATERIAL, NON-PUBLIC INFORMATION IN ACCORDANCE WITH SUCH PROCEDURES AND APPLICABLE LAWS, INCLUDE FEDERAL AND STATE SECURITIES LAWS; AND (III) IT HAS IDENTIFIED IN ITS ADMINISTRATIVE DETAIL FORM A CONTACT PERSON WHO MAY RECEIVE SPECIFIED MATERIALS THAT MAY CONTAIN MATERIAL, NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAWS.
Appears in 1 contract
Platform. Each Borrower hereby acknowledges Credit Party further agrees that (a) the Administrative Agent will may make the Communications available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain Intralinks or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) ). The Borrower hereby acknowledges that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or Equity Interests that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that (w1) all Borrower Materials that are to be made available to Public Lenders such Communications 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, ; (x2) by marking Borrower Materials Communications “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, any Affiliate thereof, the Arranger, the LC Issuer and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Confidential Information, they shall be treated as set forth in Section 9.12(b11.15)), ; (y3) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (z4) the Administrative Agent and the any Affiliate thereof and the Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.”
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Platform. Each (i) The Borrower hereby acknowledges agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each ) may have personnel who do not wish to receive material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) The Borrower hereby acknowledges and agrees that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such Communications (i) shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials such Communications (ii) “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, the Lead Arranger and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Loan Party or its securities for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the Administrative Agent and the Lead Arranger shall be entitled to treat any Borrower Materials Communications that 116 are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information.”
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEAgent Parties”) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted any liability to the Platform shall constitute effective delivery Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of such any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications to such Lender for purposes of through the Loan DocumentsPlatform.
Appears in 1 contract
Platform. Each Borrower hereby acknowledges (i) The Parent (on behalf of itself and each other Loan Party) agrees that (aA) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Communications (as defined below) (including of materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Parent hereunder (collectively, the “Borrower Materials”)) available to the Issuing Banks and the other Lenders by posting the Borrower Materials Communications on Debt Domain, Intralinks, DebtDomain Syndtrak or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices), and (bB) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, the Parent or its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each Borrower The Parent hereby agrees (on behalf of itself and each other Loan Party) 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 Parent shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to the Loan Parties or their securities for purposes of foreign or United States Federal federal and state securities laws (provided provided, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b9.12)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” ”, unless GEO the Parent notifies the Administrative Agent promptly that any such document contains MNPImaterial non-public information: (i1) the Loan Documents, Documents and (ii2) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e)Facilities. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawApplicable Law, including United States Federal and state securities laws, to make reference to communications Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRDmaterial non-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted public information with respect to the Platform shall constitute effective delivery of such communications to such Lender Loan Parties or their securities for purposes of United States Federal or state securities laws.
(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Parent or the other Loan DocumentsParties, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental, consequential, punitive or exemplary damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Parent’s, any other Loan Party’s or the Administrative Agent’s transmission of communications through the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Parent or any other Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Administrative Agent or any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through the Platform.
Appears in 1 contract
Platform. Each 6.4.1 Borrower hereby acknowledges agrees that Administrative Agent, Sole Lead Arranger and Sole Bookrunner may, but shall not be obligated to, make the Communications (aas defined below) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on IntralinksDebt Domain, DebtDomain IntraLinks, Syndtrak or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) ).
6.4.2 Borrower hereby acknowledges that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (wi) all Borrower Materials 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, ; (xii) by marking Borrower Materials Communications “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized Administrative Agent, the Administrative Agent Lenders, Sole Lead Arranger and the Lenders Sole Bookrunner to treat such Borrower Materials Communications as not containing any MNPI material non-public information with respect to Borrower or any Affiliate thereof or their respective securities for purposes of foreign or United States Federal and state securities laws laws; (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (yiii) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Platform; and (ziv) the Administrative Agent Agent, Sole Lead Arranger and Sole Bookrunner shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked designated as “Non-Public InvestorInformation.”
6.4.3 The Platform is provided “as is” and “as available.” Notwithstanding The Agent Parties (as defined below) do not warrant the foregoingaccuracy or completeness of the Communications or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall Administrative Agent, Sole Lead Arranger, Sole Bookrunner or any of their Affiliates (collectively, the following “Agent Parties”) have any liability to Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of Borrower’s or Agent Party’s transmission or posting of Borrower Materials through the Platform or via email, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall be deemed any Agent Party have any liability to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that Borrower, any such document contains MNPI: Lender or any other Person for indirect, special, incidental, consequential or punitive damages (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments as opposed to direct or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (eactual damages). Each Public Lender agrees to cause at least one individual at “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of such Public Borrower or any Guarantor pursuant to any Loan Document or the transactions contemplated therein which is distributed to Administrative Agent, Sole Lead Arranger, Sole Bookrunner or any Lender by means of electronic communications pursuant to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawthis Section, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLEPlatform.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital New York City REIT, Inc.)
Platform. Each The Borrower hereby acknowledges that (ai) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntralinksDebt Domain, DebtDomain IntraLinks, Syndtrak or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (bii) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each The Borrower hereby agrees 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 Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to the Borrower or its securities for purposes of foreign or United States Federal and state securities laws (provided that provided, however that, to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b13.10)), ; (y) all Borrower Materials marked “PUBLIC” ”“ are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” 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 the Platform not marked as designated “Public InvestorSide Information.” Notwithstanding the foregoing, the following Borrower shall be under no obligation to ▇▇▇▇ any Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Arch Coal Inc)
Platform. Each Borrower hereby acknowledges that (a) the ▇▇▇▇▇▇▇▇ agrees that Administrative Agent will and ▇▇▇▇ Lead Arranger may, but shall not be obligated to, make the Communications (as defined below) available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on IntralinksDebt Domain, DebtDomain IntraLinks, Syndtrak or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and ).
(b) Borrower hereby acknowledges that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (wi) all Borrower Materials 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, ; (xii) by marking Borrower Materials Communications “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized Administrative Agent, the Administrative Agent Lenders, and the Lenders Sole Lead Arranger to treat such Borrower Materials Communications as not containing any MNPI material non-public information with respect to Borrower or any Affiliate thereof or their respective securities for purposes of foreign or United States Federal federal and state securities laws laws; (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (yiii) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Platform; and (ziv) the Administrative Agent and Sole Lead Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked designated as “Non-Public InvestorInformation.”
(c) The Platform is provided “as is” and “as available.” Notwithstanding The Agent Parties (as defined below) do not warrant the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms accuracy or completeness of the Commitments Communications or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall Administrative Agent, Sole Lead Arranger, or any of their Affiliates (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KINDAgent Parties”) have any liability to Borrower, EXPRESSany Lender or any other Person for losses, IMPLIED OR STATUTORYclaims, INCLUDING ANY WARRANTY OF MERCHANTABILITYdamages, FITNESS FOR A PARTICULAR PURPOSEliabilities or expenses of any kind (whether in tort, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATEScontract or otherwise) arising out of Borrower’s or Agent Party’s transmission or posting of Borrower Information through the Platform or via email, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted except to the Platform shall constitute effective delivery extent that such losses, claims, damages, liabilities or expenses are determined by a court of such communications to such Lender for purposes of the Loan Documents.competent jurisdiction by a final and
Appears in 1 contract
Sources: Credit Agreement (Greystone Housing Impact Investors LP)
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Administrative Agent, including electronic delivery (aif possible) the upon request by Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Administrative Agent (collectively, the “Borrower MaterialsPlatform”) by ). Borrowers shall notify Administrative Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the materials shall be deemed received by Administrative Agent’s standard practices, and (b) certain Agent only upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 Lenders<Secured Parties on the first page thereofPlatform, (x) by marking and Obligors and Secured Parties acknowledge that “public” information is not segregated from material non-public information> on the Platform. The Platform is provided “as is” and “as available.” Administrative Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE ANY AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESLenders<Secured Parties> acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Borrowers, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDLenders<Secured Parties> or any other Person for losses, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTclaims, SPECIALdamages, INCIDENTAL OR CONSEQUENTIAL DAMAGESliabilities or expenses of any kind (whether in tort, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt relating to use by any Person of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective or delivery of such communications to such Lender for purposes of Borrower Materials and other information through the Loan DocumentsPlatform< or over the internet>.
Appears in 1 contract
Sources: First Amendment Agreement (United Natural Foods Inc)
Platform. Each (i) Holdings and the Borrower hereby acknowledges agree that (a) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) any Communications by posting such Communication on Debt Domain, IntraLinks, SyndTrak or any other electronic platform chosen by the Borrower Materials on Intralinks, DebtDomain or another similar Administrative Agent to be its electronic transmission system (the “Platform”).
(ii) Although the Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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) modified by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent from time to time (including, as of the Effective Date, a user ID/password authorization system) and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available Platform is secured through a portion per-deal authorization method whereby each user may access the Platform only on a deal-by-deal basis, each of the Platform designated as “Public Investor,” Lenders, each of the Issuing Banks, Holdings and (z) the Borrower acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent shall be entitled to treat is not responsible for approving or vetting the representatives or contacts of any Borrower Materials Lender that are not marked “PUBLIC” as being suitable only for posting on a portion added to the Approved Electronic Platform, and that there are confidentiality and other risks associated with such distribution. Each of the Platform not marked as “Public Investor.” Notwithstanding the foregoingLenders, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms each of the Commitments or Issuing Banks, Holdings and the Loans Borrower hereby approves distribution of the Communications through the Platform and understands and assumes the risks of such distribution.
(iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER ”. THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED APPLICABLE PARTIES WARRANTS (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED APPLICABLE PARTIES IN CONNECTION WITH ANY SUCH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER, ANY CO-DOCUMENTATION AGENT, ANY SYNDICATION AGENT OR ANY OF ITS THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESLOAN PARTY, ANY SECURED PARTY LENDER, ANY ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, INTERNET OR THE PLATFORM EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS DAMAGES ARE FOUND IN A FINAL RULING BY AND NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S THE BAD FAITH, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF AN APPLICABLE PARTY OR WILLFUL MISCONDUCT. ANY OF ITS RELATED PARTIES.
(iv) Each Lender and each Issuing Bank agrees that receipt of notice to it (as provided abovein the next sentence) specifying that the communications Communications have been posted to the Platform shall constitute effective delivery of such communications the Communications to such Lender or Issuing Bank (as applicable) for purposes of the Loan Documents. Each Lender and each Issuing Bank agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Lender’s or Issuing Bank’s (as applicable) email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
(v) Nothing herein shall prejudice the right of the Administrative Agent, any Lender or any Issuing Bank to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
Appears in 1 contract
Platform. Each (i) The Borrower hereby acknowledges that (a) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntralinksIntraLinks, DebtDomain Syndtrak, ClearPar or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each The Borrower hereby agrees 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 Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to the Borrower or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b9.19)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” 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 the Platform not marked as designated “Public InvestorSide Information.” Notwithstanding the foregoing, the following Borrower shall be under no obligation to ▇▇▇▇ any Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, .”
(ii) any notification of changes in The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMNo warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that In no event shall the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.67
Appears in 1 contract
Sources: Term Loan Credit Agreement (Hewlett Packard Enterprise Co)
Platform. Each (i) The Borrower hereby acknowledges (on behalf of itself and each other Loan Party) agrees that (aA) the Administrative Agent will may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Communications (as defined below) (including of materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Borrower hereunder (collectively, the “Borrower Materials”)) available to the other Lenders by posting the Borrower Materials Communications on Debt Domain, Intralinks, DebtDomain Syndtrak or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices), and (bB) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, the Borrower or its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each The Borrower hereby agrees 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 Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information with respect to the Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided provided, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b11.12)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” ”, unless GEO the Borrower notifies the Administrative Agent promptly that any such document contains MNPI: material non-public information:
(i1) the Loan Documents, Documents (iiexcluding any schedules thereto) and (2) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e)Facility. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable lawApplicable Law, including United States Federal and state securities laws, to make reference to communications Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRDmaterial non-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted public information with respect to the Platform shall constitute effective delivery of such communications to such Lender Borrower or its securities for purposes of United States Federal or state securities laws.
(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the Loan Documents.adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a 101 Credit Agreement
Appears in 1 contract
Sources: Credit Agreement (Formfactor Inc)
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Agent, including electronic delivery (aif possible) the Administrative upon request by Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Agent (collectively, the “Borrower MaterialsPlatform”) by ). Borrowers shall notify Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the Administrative Agent’s standard practices, and (b) certain materials shall be deemed received by Agent only upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 thereofPlatform. The Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, (x) by marking and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESLenders acknowledge that Borrower Materials may include material non- public information of Obligors and should not be made available to certain of the Lenders (each, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDa “Public Lender”) who may have personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Borrowers, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTLenders or any other Person for losses, SPECIALclaims, INCIDENTAL OR CONSEQUENTIAL DAMAGESdamages, LOSSES OR EXPENSES liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTrelating to use by any Person of the Platform or delivery of Borrower Materials and other information through the Platform. Each Lender The Borrower Agent hereby agrees that receipt it will use commercially reasonable efforts to identify that portion of notice the Borrower Materials that may be distributed to it the Public Lenders and that (as provided abovea) specifying all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC,” which, at a minimum, shall mean that the communications word “PUBLIC” shall appear prominently on the first page thereof; (b) by marking Borrower Materials “PUBLIC,” the Borrower Agent shall be deemed to have been posted authorized the Agent, the Lenders and the Issuing Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Platform shall constitute effective delivery of such communications to such Lender Borrower or its securities for purposes of U.S. federal and state securities laws (provided, however, that to the Loan Documentsextent such Borrower Materials constitute Information, they will be treated as set forth in Section 14.12); (c) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Side Information”; and (d) the Agent and the Joint Lead Arrangers shall be entitled to treat Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated as “Public Side Information”.
Appears in 1 contract
Sources: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Agent, including electronic delivery (aif possible) the Administrative upon request by Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Agent (collectively, the “Borrower MaterialsPlatform”) by ). Borrowers shall notify Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the Administrative Agent’s standard practices, and (b) certain materials shall be deemed received by Agent only upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 thereofPlatform. The Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, (x) by marking and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESLenders acknowledge that Borrower Materials may include material non-public information of Obligors and should not be made available to anycertain of the Lenders (each, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDa “Public Lender”) who may have personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Obligor’s securities. No Agent Indemnitee shall have any liability to Borrowers, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTLenders or any other Person for losses, SPECIALclaims, INCIDENTAL OR CONSEQUENTIAL DAMAGESdamages, LOSSES OR EXPENSES liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTrelating to use by any Person of the Platform or delivery of Borrower Materials and other information through the Platform. Each Lender The Borrower Agent hereby agrees that receipt it will use commercially reasonable efforts to identify that portion of notice the Borrower Materials that may be distributed to it the Public Lenders and that (as provided abovea) specifying all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC,” which, at a minimum, shall mean that the communications word “PUBLIC” shall appear prominently on the first page thereof; (b) by marking Borrower Materials “PUBLIC,” the Borrower Agent shall be deemed to have been posted authorized the Agent, the Lenders and the Issuing Banks to treat such Borrower Materials as not containing any material non-public information with respect to the Platform shall constitute effective delivery of such communications to such Lender Borrower or its securities for purposes of U.S. federal and state securities laws (provided, however, that to the Loan Documentsextent such Borrower Materials constitute Information, they will be treated as set forth in Section 14.12); (c) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Side Information”; and (d) the Agent and the Joint Lead Arrangers shall be entitled to treat Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated as “Public Side Information”.
Appears in 1 contract
Sources: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Platform. Each (i) The Borrower hereby acknowledges agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each ) may have personnel who do not wish to receive material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) The Borrower hereby acknowledges and agrees that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such Communications (i) shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials such Communications (ii) “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, the Lead Arranger and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Loan Party or its securities for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the 129 Administrative Agent and the Lead Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information.”
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEAgent Parties”) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted any liability to the Platform shall constitute effective delivery Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of such any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications to such Lender for purposes of through the Loan DocumentsPlatform.
Appears in 1 contract
Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Agent, including electronic delivery (aif possible) the Administrative upon request by Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Agent (collectively, the “Borrower MaterialsPlatform”) by ). Borrowers shall notify Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the Administrative Agent’s standard practices, and (b) certain materials shall be deemed received by Agent only 116549.01087/134240171v.5 upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 thereofPlatform, (x) by marking and Borrowers and Lenders acknowledge that “public” information is not segregated from material non-public information on the Platform. The Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESParties acknowledge that Borrower Materials may include material non-public information of Borrowers and Affiliates of Borrowers and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any securities of Borrowers and Affiliates of Borrowers. Neither Agent nor Indemnified Person related to Agent shall have any liability to Borrowers, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDLenders or any other Person for losses, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTclaims, SPECIALdamages, INCIDENTAL OR CONSEQUENTIAL DAMAGESliabilities or expenses of any kind (whether in tort, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt relating to use by any Person of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective or delivery of such communications to such Lender for purposes of Borrower Materials and other information through the Loan DocumentsPlatform or over the internet.
Appears in 1 contract
Sources: Loan and Security Agreement (Regional Management Corp.)
Platform. Each (i) The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntralinksIntraLinks, DebtDomain Syndtrak, Debtdomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEOthe Borrower, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each The Borrower hereby agrees that (w) to make all Borrower Materials that are the Borrower intends to be made available to Public Lenders shall be clearly and conspicuously marked designated as “PUBLIC” which, at a minimum, shall mean that the word ”. By designating Borrower Materials as “PUBLIC” shall appear prominently on ”, the first page thereof, (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat authorizes such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through to a portion of the Platform designated as “Public Investor,” which is intended to contain only information that is either publicly available or not material information (though it may be sensitive and (zproprietary) with respect to the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only Borrower, its Subsidiaries or their respective securities for posting on a portion purposes of the Platform not marked as “Public Investor.” United States federal and state securities laws. Notwithstanding the foregoing, the following Borrower shall not be under any obligation to ▇▇▇▇ any Borrower Materials shall be deemed to be marked “PUBLIC,.” unless GEO notifies the Administrative Agent promptly The Borrower agrees that any such document contains MNPI: (i) any Loan Documents and notifications of changes of terms of the Loan DocumentsDocuments (including term sheets), (ii) any notification of changes in the terms of the Commitments or the Loans financial statements delivered pursuant to Section 5.1 and (iii) all information furnished pursuant any Compliance Certificates delivered to Section 5.01(a), (b) the Administrative Agent will be deemed to be “public-side” Borrower Materials and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not may be made available through the “to Public Side Information” portion of the Platform and that may contain MNPI. Lenders.
(ii) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM PLATFORM, AND EACH EXPRESSLY DISCLAIMS DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH FROM THE PLATFORMBORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE ANY AGENT OR ANY OF ITS RELATED PARTIES PARTY IN CONNECTION WITH ANY SUCH COMMUNICATIONS THE BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESIn no event shall the Administrative Agent or any of its respective Related Parties (the “Agent Parties”) have any liability to any Loan Party, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDany Lender or any other Person for losses, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTclaims, SPECIALdamages, INCIDENTAL OR CONSEQUENTIAL DAMAGESliabilities or expenses of any kind (whether or not based on strict liability and including direct or indirect, LOSSES OR EXPENSES special, incidental or consequential damages, losses or expenses (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise)) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETarising out of the Borrower’s, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt any other Loan Party’s or any Agent Party’s transmission of notice to it (as provided above) specifying that Borrower Materials or notices through the communications have been posted Platform, except to the Platform shall constitute effective delivery extent such losses, claims, damages, liabilities or expenses resulted from the gross negligence, bad faith or willful misconduct of such communications to such Lender for purposes Agent Party as determined by a final non-appealable judgment of the Loan Documentsa court of competent jurisdiction.
Appears in 1 contract
Sources: Credit Agreement (Celadon Group Inc)
Platform. Each The Borrower hereby acknowledges that (a) the Administrative Agent Agents will make available to the Lenders and the Issuing Lenders materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and of the Other Consolidated Persons hereunder Borrower (collectively, the “Borrower Materials”) hereunder by posting such materials the Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). Each Borrower hereby agrees 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 shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AGENT-RELATED PARTIES WARRANTS PERSONS DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMBORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS AGENT-RELATED PARTIES PERSON IN CONNECTION WITH ANY SUCH COMMUNICATIONS THE BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESIn no event shall any Agent-Related Person have any liability to the Borrower, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDany Lender, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTor any other Person or entity for losses, SPECIALclaims, INCIDENTAL OR CONSEQUENTIAL DAMAGESdamages, LOSSES OR EXPENSES liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETarising out of the Borrower’s or an Agent’s transmission of Borrower Materials through the Platform, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCTexcept to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by an final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent-Related Person; provided that in no event shall any Agent-Related Person have any liability to the Borrower, any Lender or any other Person for indirect, special, incidental, consequential damages or punitive damages (as opposed to direct or actual damages). Each Lender The Borrower acknowledges and agrees that receipt the list of notice to it (as provided above) specifying that Disqualified Lenders shall be deemed suitable for posting and may be posted by any Agent on the communications have been posted to Platform, including the portion of the Platform shall constitute effective delivery of such communications to such Lender that is designated for purposes of the Loan Documents“public side” Lenders.
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Platform. Each Borrower hereby acknowledges that Materials shall be delivered pursuant to procedures approved by Agent, including electronic delivery (aif possible) the Administrative upon request by Agent will make available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder an electronic system maintained by Agent (collectively, the “Borrower MaterialsPlatform”) by ). Borrowers shall notify Agent of each posting the of Borrower Materials on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with Platform and the Administrative Agent’s standard practices, and (b) certain materials shall be deemed received by Agent only upon its receipt of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))such notice. Each Borrower hereby agrees that (w) all Borrower Materials that are and other information relating to this credit facility may 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 Secured Parties on the first page thereofPlatform, (x) by marking and the Loan Parties and Secured Parties acknowledge that “public” information is not segregated from material non-public information on the Platform. The Platform is provided “as is” and “as available.” Agent does not warrant the accuracy or completeness of any information on the Platform nor the adequacy or functioning of the Platform, and expressly disclaims liability for any errors or omissions in the Borrower Materials “PUBLIC,” or any issues involving the Borrowers shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any MNPI for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b)), (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “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 the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORMPlatform. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS RESPECT TO BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees Secured Parties acknowledge that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes Borrower Materials may include material non-public information of the Loan DocumentsParties and should not be made available to any personnel who do not wish to receive such information or who may be engaged in investment or other market-related activities with respect to any Loan Party’s securities. No Agent Indemnitee shall have any liability to the Loan Parties, Secured Parties or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) relating to use by any Person of the Platform or delivery of Borrower Materials and other information through the Platform or over the internet.
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Platform. Each Borrower hereby acknowledges that (ai) the Administrative Agent will and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders Banks materials and/or information provided by, by or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons of Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntralinksIntraLinks, DebtDomain Syndtrak, ClearPar or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (bii) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (w) all it will use commercially reasonable efforts to identify that portion of the Borrower Materials that are may be distributed to be made available to the Public Lenders and that (A) all such Borrower Materials 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, ; (xB) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, any Affiliate thereof, each Lead Arranger, each Issuing Bank and the Lenders each Lender to treat such Borrower Materials as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided that that, to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b10.12)), ; (yC) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (zD) the Administrative Agent and any Affiliate thereof and each Lead Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as designated “Public InvestorSide Information.” Notwithstanding the foregoing, the following Borrower shall be under no obligation to mark any Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI”. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM PLATFORM, AND EACH EXPRESSLY DISCLAIMS DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH FROM THE PLATFORMBORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT NON-INFRINGEMENT OF THIRD-THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES PARTY IN CONNECTION WITH ANY SUCH COMMUNICATIONS THE BORROWER MATERIALS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATESIn no event shall the Agent or any of its Related Parties (collectively, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KINDthe “Agent Parties”) have any liability to Borrower, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECTany Lender, SPECIALany Issuing Bank or any other Person for losses, INCIDENTAL OR CONSEQUENTIAL DAMAGESclaims, LOSSES OR EXPENSES damages, liabilities or expenses of any kind (WHETHER IN TORTwhether in tort, CONTRACT OR OTHERWISEcontract or otherwise) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNETarising out of Borrower’s, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt any Loan Party’s or the Agent’s transmission of notice to it (as provided above) specifying that Borrower Materials or notices through the communications have been posted to Platform, any other electronic platform or electronic messaging service, or through the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan DocumentsInternet.
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Platform. Each Borrower hereby acknowledges Credit Party further agrees that (a) the Administrative Agent will may make the Communications available to the Lenders and the Issuing Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain SyndTrak or another a substantially similar electronic transmission system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) ). The Borrower hereby acknowledges that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”))) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each The Borrower hereby agrees that so long as the Borrower is the issuer of any outstanding debt or Equity Interests that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that (w1) all Borrower Materials that are to be made available to Public Lenders such Communications 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, ; (x2) by marking Borrower Materials Communications “PUBLIC,” the Borrowers Borrower 105 shall be deemed to have authorized the Administrative Agent Agent, any Affiliate thereof, the Arranger, the LC Issuers and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of foreign or United States Federal federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Confidential Information, they shall be treated as set forth in Section 9.12(b11.15)), ; (y3) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (z4) the Administrative Agent and the any Affiliate thereof and the Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information” portion of the Platform and that may contain MNPI. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted to the Platform shall constitute effective delivery of such communications to such Lender for purposes of the Loan Documents.”
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Platform. Each (i) The Borrower hereby acknowledges that (a) the Administrative Agent will and/or the Arranger may, but shall not be obligated to, make available to the Lenders and the Issuing Lenders any materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons any Loan Party hereunder or under any other Loan Document (collectively, the “Borrower Materials”) available to the Lenders and the LC Issuing Lender by posting the Borrower Materials on Intralinks, DebtDomain or another similar electronic system the Platform.
(the “Platform”ii) or otherwise in accordance with the Administrative Agent’s standard practices, and (b) The Borrower hereby acknowledges that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic non-public information with respect to GEO, the Borrower or its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”securities) (each, a “Public Lender”)). Each The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (x) by marking Borrower Materials “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, the Arranger, the LC Issuing Lender and the Lenders to treat such Borrower Materials as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of foreign or United States Federal and state securities laws (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12(b10.7)), ; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,Side Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information.”
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Borrower Materials or the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Borrower Materials. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Borrower Materials or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEAgent Parties”) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted any liability to the Platform shall constitute effective delivery Borrower, any other Loan Party, any Lender, the LC Issuing Lender or any other Person for damages of such communications to such Lender for purposes any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any other Loan DocumentsParty’s or any Agent Party’s transmission of communications through the Platform.
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Platform. (i) Each Borrower hereby acknowledges Loan Party agrees that (a) the Administrative Agent will may, but shall not be obligated to, make the Communications available to the Lenders L/C Issuer and the Issuing other Lenders materials and/or information provided by, or on behalf of, GEO, its Subsidiaries and the Other Consolidated Persons hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials Communications on Intralinks, DebtDomain or another similar electronic system (the “Platform”) or otherwise in accordance with the Administrative Agent’s standard practices, Platform and (b) that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information with respect to GEO, its Subsidiaries or their respective securities of any of the foregoing (collectively, “MNPI”) (each, a “Public Lender”)). ) may have personnel who do not wish to receive material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.
(ii) Each Borrower Loan Party hereby agrees that so long as any Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that: (wA) all Borrower Materials that are to be made available to Public Lenders such (i) shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean means that the word “PUBLIC” shall appear prominently on the first page thereof, ; (xB) by marking Borrower Materials (ii) “PUBLIC,” the Borrowers Borrower shall be deemed to have authorized the Administrative Agent Agent, Lead Arranger and the Lenders to treat such Borrower Materials Communications as not containing any MNPI material non-public information (although it may be sensitive and proprietary) with respect to any Loan Party or its securities for purposes of foreign or United States Federal and state securities laws (provided provided, however, that to the extent such Borrower Materials Communications constitute Information, they shall be treated as set forth in Section 9.12(b10.14)), ; (yC) all Borrower Materials Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor,” Side Information”; and (zD) the Administrative Agent and the Lead Arranger shall be entitled to treat any Borrower Materials Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.” Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless GEO notifies the Administrative Agent promptly that any such document contains MNPI: (i) the Loan Documents, (ii) any notification of changes in the terms of the Commitments or the Loans and (iii) all information furnished pursuant to Section 5.01(a), (b) and (e). Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the designated “Public Side Information”.
(iii) The Platform is provided “as is” portion and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and that may contain MNPIexpressly disclaim liability for errors or omissions in the Communications. THE PLATFORM IS PROVIDED No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF ANY COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY COMMUNICATIONS ON OR THROUGH THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH ANY SUCH COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES, ANY SECURED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISEAgent Parties”) ARISING OUT OF THE BORROWERS’ OR ANY OF THEIR AFFILIATES’ OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Each Lender agrees that receipt of notice to it (as provided above) specifying that the communications have been posted any liability to the Platform shall constitute effective delivery Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Party’s or the Administrative Agent’s transmission of communications through the Platform, except to the extent such communications liability is determined by a court of competent jurisdiction by final and non-appealable judgment to such Lender for purposes have resulted from the gross negligence, willful misconduct, fraud or other illegal acts of the Loan Documentsany Agent Party.
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Sources: Credit Agreement (Cantor Fitzgerald Income Trust, Inc.)