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BY CLICKING ON THE “AGREE” BUTTON, YOU AND YOUR INSTITUTION (COLLECTIVELY, THE “RECIPIENT”) EXPRESSLY ACKNOWLEDGE AND AGREE (AND EACH TIME YOU ENTER THIS WORKSPACE HEREAFTER, YOU AND YOUR INSTITUTION REAFFIRM SUCH ACKNOWLEDGEMENT AND AGREEMENT) AS FOLLOWS:
Notice to and Undertaking by Workspace Users
For Recipients accessing the Workspace in connection with a primary syndication:
The Confidential Information Memorandum (the “Confidential Information Memorandum”), if any, posted on this workspace and certain other information posted on this workspace have each been prepared solely for informational purposes from information supplied by or on behalf of the company (the “Company”), and are being posted to this workspace by Credit Suisse (the “Arranger”) for your review in your capacity as a prospective lender in considering the proposed Credit Facility (the “Facility”).
For all Recipients:
The Company has represented that the information posted on this workspace and designated as “Public” is either publicly available or does not constitute material non-public information with respect to the Company or its securities. All other information posted on this workspace, including information specifically designated as “Private”, may contain material non-public information concerning the Company or its securities.
If the Recipient intends to access only “Public” information, it hereby acknowledges that other lenders have access to and may review information that contains additional information with respect to the Company or its securities that may be material. Neither the Company nor the Arranger takes any responsibility for the Recipient’s decision to limit the scope of the information the Recipient has and will review in connection with the Recipient’s evaluation of the Company and the Facility.
If the Recipient intends to access any “Private” information, regardless of whether designated as “Private”, it agrees to use any such information in accordance with its compliance policies, contractual obligations and applicable law, including federal and state securities laws.
As used herein: (a) “Evaluation Material” refers to the Confidential Information Memorandum and any other information regarding the Company or the Facility furnished or communicated to the Recipient by or on behalf of the Company in connection with the Facility (whether prepared or communicated by the Arranger or the Company, their respective advisors or otherwise), including, without limitation, all information posted on this workspace, and (b) “Internal Evaluation Material” refers to all memoranda, notes, and other documents and analyses developed by the Recipient using any of the information specified under the definition of Evaluation Material.
The Recipient acknowledges that the Company considers the Evaluation Material to include confidential, sensitive and proprietary information and agrees that it shall use reasonable precautions in accordance with its established procedures to keep the Evaluation Material confidential; provided however that (i) it may make any disclosure of such information to which the Company gives its prior written consent and (ii) any of such information may be disclosed to it, its affiliates and their respective partners, directors, officers, employees, agents, advisors and other representatives (collectively, “Representatives”) (it being understood that such Representatives shall be informed by it of the confidential nature of such information and shall be directed by the Recipient to treat such information in accordance with the terms of this Notice and Undertaking by Workspace Users).<sup> </sup>The Recipient agrees to be responsible for any breach of this Notice and Undertaking by Workspace Users that results from the actions or omissions of its Representatives.
The Recipient shall be permitted to disclose the Evaluation Material in the event that it is required by law or regulation or requested by any governmental agency or other regulatory authority (including any self-regulatory organization) or in connection with any legal proceedings. The Recipient agrees that it will notify the Arranger as soon as practical in the event of any such disclosure (other than at the request of a regulatory authority), unless such notification shall be prohibited by applicable law or legal process.
The Recipient shall have no obligation hereunder with respect to any Evaluation Material to the extent that such information (i) is or becomes publicly available other than as a result of a disclosure by the Recipient in violation of this agreement, or (ii) was within the Recipient’s possession prior to its being made available to the Recipient on this workspace or becomes available to the Recipient on a non-confidential basis from a source other than the Company or its agents, provided that the source of such information was not known by the Recipient to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information.
In the event that the Recipient of the Evaluation Material decides not to participate in the transaction described herein, upon request of the Arranger, such Recipient shall as soon as practicable return all Evaluation Material (other than Internal Evaluation Material) to the Arranger or represent in writing to the Arranger that the Recipient has destroyed all copies of the Evaluation Material (other than Internal Evaluation Material) unless prohibited from doing so by the Recipient’s internal policies and procedures.
The Recipient acknowledges and agrees that (i) the Arranger received the Evaluation Material from third party sources (including the Company) and it is posted to this workspace for informational purposes, (ii) the Arranger and its affiliates bear no responsibility (and shall not be liable) for the accuracy or completeness (or lack thereof) of the Evaluation Material or any information contained therein, (iii) no representation regarding the Evaluation Material is made by the Arranger or any of its affiliates, (iv) neither the Arranger nor any of its affiliates has made any independent verification as to the accuracy or completeness of the Evaluation Material, and (v) the Arranger and its affiliates shall have no obligation to update or supplement any Evaluation Material or otherwise provide additional information.
The Evaluation Material has been prepared to assist interested parties in making their own evaluation of the Company and the Facility and does not purport to be all-inclusive or to contain all of the information that a prospective participant may consider material or desirable in making its decision to become a lender. Each Recipient of the information and data contained in this workspace should take such steps as it deems necessary to assure that it has the information it considers material or desirable in making its decision to become a lender and should perform its own independent investigation and analysis of the Facility or the transactions contemplated thereby and the creditworthiness of the Company. The Recipient represents that it is sophisticated and experienced in extending credit to entities similar to the Company. The information and data contained in this workspace are not a substitute for the Recipient’s independent evaluation and analysis and should not be considered as a recommendation by the Arranger or any of its affiliates that any Recipient enter into the Facility.
The Evaluation Material may include certain forward looking statements and projections provided by the Company. Any such statements and projections reflect various estimates and assumptions by the Company concerning anticipated results. No representations or warranties are made by the Company or any of its affiliates as to the accuracy of any such statements or projections. Whether or not any such forward looking statements or projections are in fact achieved will depend upon future events some of which are not within the control of the Company. Accordingly, actual results may vary from the projected results and such variations may be material.
It is understood that unless and until a definitive agreement regarding the Facility between the parties thereto has been executed, the Recipient will be under no legal obligation of any kind whatsoever with respect to the Facility by virtue of this Notice and Undertaking by Workspace Users except for the matters specifically agreed to herein.
The Recipient agrees that money damages would not be a sufficient remedy for breach of this Notice and Undertaking by Workspace Users, and that in addition to all other remedies available at law or in equity, the Company and the Arranger shall be entitled to equitable relief, including injunction and specific performance, without proof of actual damages.
This Notice and Undertaking by Workspace Users embodies the entire understanding and agreement between the Recipient and the Arranger with respect to the Evaluation Material and the Internal Evaluation Material and supersedes all prior understandings and agreements relating thereto. The terms and conditions of this Notice and Undertaking by Workspace Users shall apply until such time, if any, that the Recipient becomes a party to the definitive agreements regarding the Facility, and thereafter the provisions of such definitive agreements relating to confidentiality shall govern. If you do not enter into the Facility, the application of this Notice and Undertaking by Workspace Users shall terminate with respect to all Evaluation Material on the date falling one year after the date hereof.
This Notice and Undertaking by Workspace Users shall be governed by and construed in accordance with the law of the State of New York, without regard to principles of conflicts of law (except Section 5-1401 of the New York General Obligation Law to the extent that it mandates that the law of the State of New York govern).