Common use of Disclosure; Confidentiality Clause in Contracts

Disclosure; Confidentiality. Notwithstanding anything contained in this Amendment to the contrary and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment to the Facility Agreement, the Borrower expressly acknowledges and agrees that no Purchaser shall have (unless expressly agreed to by a particular Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser or customary oral (confirmed by e-mail) “wall-cross” agreement (it being understood and agreed that no Purchaser may bind any other Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and Guarantor shall not, and shall cause each of its officers, directors, employees and agents to not on behalf of the Borrower, provide any Purchaser with any material non-public information with respect to the Borrower without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communication). In the absence of any such indication by Borrower to a Purchaser, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic information with respect to the Borrower.

Disclosure; Confidentiality. On or before 2:30 p.m.., New York time, on September 5, 2018, the Borrower shall file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Amendment, attaching this Amendment and disclosing any other presently material non-public information (if any) provided or made available to any Purchaser (or any Purchaser’s agents or representatives) on or prior to the date hereof and that is not otherwise publicly disclosed at or prior to the time of such filing (the “8-K Filing”). From and after the filing of the 8-K Filing, the Borrower shall have disclosed all material, non-public information (if any) provided or made available to any Purchaser (or any Purchaser’s agents or representatives) by Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Amendment or otherwise on or prior to the date hereof, including with respect to the transactions described in the Borrower’s press release dated September 4, 2018. Notwithstanding anything contained in this Amendment to the contrary and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment after giving effect to the Facility Agreement8-K Filing, the Borrower expressly acknowledges and agrees that no Purchaser shall have (unless expressly agreed to by a particular Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser or customary oral (confirmed by e-mail) “wall-cross” agreement (it being understood and agreed that no Purchaser may bind any other Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or the Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees employees, Affiliates and agents to not on behalf of the Borrowernot, provide any Purchaser with any material non-public information with respect to the Borrower from and after the filing of the Form 8-K Filing with the SEC without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or the Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower or the Guarantor to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communicationwaived). In , and in the absence of any such indication by Borrower to a Purchaserindication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic non-public information with respect to the BorrowerBorrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the date of this Agreement, the Borrower shall file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, attaching this Agreement and disclosing any other presently material non-public information (if any) provided or made available to any Purchaser (or any Purchaser’s agents or representatives) on or prior to the date hereof (the “8-K Filing”). From and after the filing of the 8-K Filing, the Borrower shall have disclosed all material, non-public information (if any) provided or made available to any Purchaser (or any Purchaser’s agents or representatives) by Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Amendment Agreement to the contrary and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment after giving effect to the Facility Agreement8-K Filing, the Borrower expressly acknowledges and agrees that no Purchaser shall have (unless expressly agreed to by a particular Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser or customary oral (confirmed by e-mail) “wall-cross” agreement (it being understood and agreed that no Purchaser may bind any other Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or the Guarantor pursuant to the terms of this Amendment Agreement or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees employees, Affiliates and agents to not on behalf of the Borrowernot, provide any Purchaser with any material non-public information with respect to the Borrower from and after the filing of the Form 8-K Filing with the SEC without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or the Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower or the Guarantor to provide such notice to such Purchaser under the Facility Agreement or this Amendment Agreement shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communicationwaived). In , and in the absence of any such indication by Borrower to a Purchaserindication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic non-public information with respect to the BorrowerBorrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on December 28, 2020, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Amendment, disclosing the effectiveness of this Amendment, attaching this Amendment (without any redaction therefrom), and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, it shall have publicly disclosed all material, non public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Amendment or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Amendment to the contrary contrary, and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment to the Facility Agreement, the Borrower expressly acknowledges and agrees that that, from and after the Announcing 8-K Filing, no Purchaser Lender nor any affiliate of any Deerfield Lender shall have (unless expressly agreed to by a such particular Purchaser Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser Deerfield Lender or customary oral (confirmed by e-mail) “wall-wall cross” agreement (it being understood and agreed that no Purchaser Deerfield Lender may bind any other Purchaser Deerfield Lender with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade on the basis in any securities while aware of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and Guarantor shall not, and shall cause each of its officers, directors, employees and agents to not on behalf of the Borrower, provide any Purchaser with any material non-public information with respect to the Borrower without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communication). In the absence of any such indication by Borrower to a Purchaser, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic information with respect to the Borrower.

Disclosure; Confidentiality. On or before 7:00 a.m., New York time, on the first (1st) Business Day after the date of this Agreement, the Borrower shall file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, attaching this Agreement and disclosing any other presently material non-public information (if any) provided or made available to any Purchaser (or any Purchaser’s agents or representatives) on or prior to the date hereof (the “8-K Filing”). From and after the filing of the 8-K Filing, the Borrower shall have disclosed all material, non-public information (if any) provided or made available to any Purchaser (or any Purchaser’s agents or representatives) by Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Amendment Agreement to the contrary and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment after giving effect to the Facility Agreement8-K Filing, the Borrower expressly acknowledges and agrees that no Purchaser shall have (unless expressly agreed to by a particular Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser or customary oral (confirmed by e-mail) “wall-cross” agreement (it being understood and agreed that no Purchaser may bind any other Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or Guarantor pursuant to the terms of this Amendment Agreement or any of the other Transaction Loan Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and Guarantor shall not, and shall cause each of its officers, directors, employees employees, Affiliates and agents to not on behalf of the Borrowernot, provide any Purchaser with any material non-public information with respect to the Borrower from and after the filing of the Form 8-K Filing with the SEC without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower to provide such notice to such Purchaser under the Facility Agreement or this Amendment Agreement shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communicationwaived). In , and in the absence of any such indication by Borrower to a Purchaserindication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic non-public information with respect to the Borrower.

Disclosure; Confidentiality. On or before 7:00 a.m., New York time, on the first Business Day following the date of this Amendment, the Borrower shall file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Amendment, attaching this Amendment and disclosing any other presently material non-public information (if any) provided or made available to any Purchaser (or any Purchaser’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). If the Effective Date shall not have occurred on or prior to June 30, 2019, then no later than 7:00 a.m. on July 1, 2019, the Borrower shall file a Current Report on Form 8-K disclosing such non-occurrence. From and after the filing of the Announcing 8-K Filing, the Borrower shall have disclosed all material, non-public information (if any) provided or made available to any Purchaser (or any Purchaser’s agents or representatives) by Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Amendment or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Amendment to the contrary and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment to the Facility Agreement, the Borrower expressly acknowledges and agrees that that, from and after the Announcing 8-K Filing, no Purchaser shall have (unless expressly agreed to by a particular Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser or customary oral (confirmed by e-mail) “wall-cross” agreement (it being understood and agreed that no Purchaser may bind any other Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or the Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees employees, Affiliates and agents to not on behalf of the Borrowernot, provide any Purchaser with any material non-public information with respect to the Borrower from and after the filing of the Announcing Form 8-K Filing with the SEC without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or the Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower or the Guarantor to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communicationwaived). In , and in the absence of any such indication by Borrower to a Purchaserindication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic non-public information with respect to the BorrowerBorrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing (as defined below), it shall have publicly disclosed all MNPI (as defined below) provided or made available to the Lender (or the Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Amendment Agreement to the contrary contrary, and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment to the Facility Agreement, the Borrower expressly acknowledges and agrees that no Purchaser that, from and after the filing of the Announcing 8-K Filing, neither the Lender nor any affiliate of the Lender shall have (unless expressly agreed to by a particular Purchaser the Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser the Lender or customary oral (confirmed by e-mail) “wall-wall cross” agreement (it being understood and agreed that no Purchaser may bind any other Purchaser with respect thereto)agreement), any duty of trust or confidence with respect to, or a duty not to trade on the basis in any securities while aware of, any MNPI or any other information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or Guarantor pursuant to any other Loan Party. The Borrower understands and acknowledges that the terms of Lender, its affiliates and Persons acting on their behalf will rely on the representations, warranties, covenants, provisions and agreements set forth in this Amendment or any of Section 4.03 in effecting transactions in the Securities and other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each securities of the Borrower and Guarantor of other Persons. For the avoidance of doubt, the Borrower’s obligations under this Section 4.03 shall not, and shall cause each of its officers, directors, employees and agents not be deemed to not on behalf limit or otherwise modify the Borrower’s obligations under Section 5.18 of the Borrower, provide any Purchaser with any material non-public information with respect to the Borrower without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communication). In the absence of any such indication by Borrower to a Purchaser, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic information with respect to the BorrowerAgreement.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the first Business Day following the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement and the GPC License Agreement, disclosing the effectiveness of each of such agreement, attaching this Agreement and the GPC License Agreement and disclosing any other presently material non-public information (if any) provided or made available to any Lender (or any Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Lender (or any Lender’s agents or representatives) by Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise (including with respect to the GPC License Agreement) on or prior to the date hereof. The Borrower also represents and warrants, for the avoidance of doubt and without limiting the foregoing, that by making any redactions to the GPC License Agreement, as filed with the Commission as an exhibit as part of the Announcing 8-K Filing, the Borrower shall not (i) have failed to disclose any material information in respect of the GPC License Agreement or (ii) cause any Lender or any affiliate or representative of any Lender to be in possession of any material non-public information relating to the to the terms of the GPC License Agreement at any time after the filing of the Announcing 8-K Filing. Notwithstanding anything contained in this Amendment Agreement to the contrary contrary, and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment to the Facility Agreement, the Borrower expressly acknowledges and agrees that that, from and after the Announcing 8-K Filing, no Purchaser Lender nor any affiliate of any Lender shall have (unless expressly agreed to by a such particular Purchaser Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser Lender or customary oral (confirmed by e-mail) “wall-wall cross” agreement (it being understood and agreed that no Purchaser Lender may bind any other Purchaser Lender with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade on the basis in any securities while aware of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations The Borrower acknowledges and agrees that Section 6.14 of the Borrower or Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, as deemed amended by Sections 3.04(e) and (a)f) of the Exchange Agreement, subject to clause (b) belowdated as of October 5, each of 2018, among the Borrower and Guarantor shall notthe Lenders, remains in full force and shall cause each of its officers, directors, employees and agents to not on behalf of the Borrower, provide any Purchaser with any material non-public information with respect to the Borrower without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communication). In the absence of any such indication by Borrower to a Purchaser, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic information with respect to the Borrowereffect.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the first Business Day following the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, the A&R Certificate of Designation and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, attaching this Agreement (including the form of the A&R Certificate of Designation and the other exhibits and schedules to this Agreement) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) and disclosing any other presently material non-public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). No later than 8:00 a.m. on the earlier of (i) the first Business Day following the Effective Date and (ii) the date this Agreement is terminated, the Borrower shall file with the Commission a Current Report on Form 8-K (the “Closing 8-K Filing”) (y) disclosing the occurrence of the Effective Time and the consummation of the Exchange and attaching the A&R Certificate of Designation and the form of the Exchange Warrant or, if applicable, (z) disclosing that this Agreement has been terminated. The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Deerfield Lender (or any Deerfield Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Amendment Agreement to the contrary contrary, and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment to the Facility Agreement, the Borrower expressly acknowledges and agrees that that, from and after the Announcing 8-K Filing, no Purchaser Deerfield Lender nor any affiliate of any Deerfield Lender shall have (unless expressly agreed to by a such particular Purchaser Deerfield Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser Deerfield Lender or customary oral (confirmed by e-mail) “wall-wall cross” agreement (it being understood and agreed that no Purchaser Deerfield Lender may bind any other Purchaser Deerfield Lender with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade on the basis in any securities while aware of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and Guarantor shall not, and shall cause each of its officers, directors, employees and agents to not on behalf of the Borrower, provide any Purchaser with any material non-public information with respect to the Borrower without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communication). In the absence of any such indication by Borrower to a Purchaser, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic information with respect to the Borrower.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the first Business Day following the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, disclosing the effectiveness of this Agreement and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, providing the disclosure contemplated by Section 3.02(p), attaching this Agreement and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom, other than redactions of the schedules to the Guaranty and Security Agreement as permitted under Item 601(a)(5) of Regulation S-K) and disclosing any other presently material non-public information (if any) provided or made available to any Lender (or any Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Lender (or any Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Amendment Agreement to the contrary contrary, and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment to the Facility Agreement, the Borrower expressly acknowledges and agrees that that, from and after the Announcing 8-K Filing, no Purchaser Lender nor any affiliate of any Lender shall have (unless expressly agreed to by a such particular Purchaser Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser Lender or customary oral (confirmed by e-mail) “wall-wall cross” agreement (it being understood and agreed that no Purchaser Lender may bind any other Purchaser Lender with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade on the basis in any securities while aware of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and Guarantor shall not, and shall cause each of its officers, directors, employees and agents to not on behalf of the Borrower, provide any Purchaser with any material non-public information with respect to the Borrower without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communication). In the absence of any such indication by Borrower to a Purchaser, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic information with respect to the Borrower.

Disclosure; Confidentiality. On or before 7:00 a.m., New York time, on the first (1st) Business Day after the date of this Agreement, the Borrower shall file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement and the Fifth Amendment, attaching this Agreement and the Fifth Amendment and disclosing any other presently material non-public information (if any) provided or made available to any Purchaser (or any Purchaser’s agents or representatives) on or prior to the date hereof (the “8-K Filing”). From and after the filing of the 8-K Filing, the Borrower shall have disclosed all material, non-public information (if any) provided or made available to any Purchaser (or any Purchaser’s agents or representatives) by Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement, the Fifth Amendment or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Amendment Agreement to the contrary and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment after giving effect to the Facility Agreement8-K Filing, the Borrower expressly acknowledges and agrees that no Purchaser shall have (unless expressly agreed to by a particular Purchaser after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser or customary oral (confirmed by e-mail) “wall-cross” agreement (it being understood and agreed that no Purchaser may bind any other Purchaser with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or the Guarantor pursuant to the terms of this Amendment Agreement or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees employees, Affiliates and agents to not on behalf of the Borrowernot, provide any Purchaser with any material non-public information with respect to the Borrower from and after the filing of the Form 8-K Filing with the SEC without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or the Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower or the Guarantor to provide such notice to such Purchaser under the Facility Agreement or this Amendment Agreement shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communicationwaived). In , and in the absence of any such indication by Borrower to a Purchaserindication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic non-public information with respect to the BorrowerBorrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. Notwithstanding On or before 7:00 a.m., New York time, on the first (1st) business day after the date of this Agreement, the Corporation shall file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, attaching this Agreement and the Series C Preferred Stock Designation and disclosing any other presently material non-public information (if any) provided or made available to any Stockholder (or any Stockholder’s agents or representatives) on or prior to the date hereof (the “8-K Filing”). From and after the filing of the 8-K Filing, the Corporation shall have disclosed all material, non-public information (if any) provided or made available to any Stockholder (or any Stockholder’s agents or representatives) by the Corporation, its Affiliates or any of their respective officers, directors or employees in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. The Corporation expressly acknowledges and agrees that, notwithstanding anything contained in this Amendment Agreement to the contrary and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment after giving effect to the Facility Agreement8-K Filing, the Borrower expressly acknowledges and agrees that no Purchaser Stockholder shall have (unless expressly agreed to by a particular Purchaser Stockholder after the date hereof in a written definitive and binding agreement executed by the Borrower Corporation and such particular Purchaser Stockholder or customary oral (confirmed by e-mail) “wall-cross” agreement (it being understood and agreed that no Purchaser Stockholder may bind any other Purchaser Stockholder with respect thereto)), any duty of trust or confidence with respect to, or a duty not to trade in any securities on the basis of, any information regarding the BorrowerCorporation. Notwithstanding any affirmative disclosure obligations of the Borrower or Guarantor Corporation pursuant to the terms of this Amendment or any of the other Transaction Documents Agreement or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to in the Facility AgreementSeries C Preferred Stock Designation, (a), subject to clause (b) below, each of the Borrower and Guarantor Corporation shall not, and shall cause each of its Affiliates and its and its Affiliates’ officers, directors, directors and employees and agents to not on behalf of the Borrowernot, provide any Purchaser Stockholder with any material non-public information with respect to the Borrower Corporation from and after the filing of the Form 8-K Filing with the SEC without the express prior written consent of such PurchaserStockholder, and (b) in the event that the Borrower or Guarantor Corporation believes that a notice or communication to any Purchaser Stockholder contains material, nonpublic information with respect to the BorrowerCorporation, the Borrower Corporation shall so indicate to such Purchaser Stockholder prior to the delivery of such notice or communication, and such indication shall provide such Purchaser Stockholder the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower Corporation to provide such notice to such Purchaser Stockholder under the Facility this Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communicationwaived). In , and in the absence of any such indication by Borrower to a Purchaserindication, such Purchaser Stockholder shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic non-public information with respect to the BorrowerCorporation and shall have no duty of trust or confidence with respect thereto or obligation to not trade any securities on the basis thereof.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the first Business Day following the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, disclosing the effectiveness of this Agreement and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, attaching this Agreement and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) and disclosing any other presently material non-public information (if any) provided or made available to Lender (or Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, it shall have publicly disclosed all material, non-public information (if any) provided or made available to Lender (or Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Amendment Agreement to the contrary contrary, and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment to the Facility Agreement, the Borrower expressly acknowledges and agrees that that, from and after the Announcing 8-K Filing, no Purchaser Lender nor any affiliate of Lender shall have (unless expressly agreed to by a particular Purchaser Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser Lender or customary oral (confirmed by e-mail) “wall-wall cross” agreement (it being understood and agreed that no Purchaser may bind any other Purchaser with respect thereto)agreement), any duty of trust or confidence with respect to, or a duty not to trade on the basis in any securities while aware of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of the Borrower or Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and Guarantor shall not, and shall cause each of its officers, directors, employees and agents to not on behalf of the Borrower, provide any Purchaser with any material non-public information with respect to the Borrower without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communication). In the absence of any such indication by Borrower to a Purchaser, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic information with respect to the Borrower.

Disclosure; Confidentiality. On or before 8:00 a.m., New York time, on the date of this Agreement, the Borrower shall file with the Commission a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this Agreement, the Exchange Warrant, the Facility Agreement (including the refinancing transactions to which it relates), the RRA and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, disclosing the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, attaching this Agreement (including the exhibits and schedules to this Agreement not otherwise filed) and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement (in each case, without any redaction therefrom) and disclosing any other presently material non-public information (if any) provided or made available to the Lender (or the Lender’s agents or representatives) on or prior to the date hereof (the “Announcing 8-K Filing”). The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, it shall have publicly disclosed all material, non-public information (if any) provided or made available to the Lender (or the Lender’s agents or representatives) by the Borrower or any of its officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Agreement or otherwise on or prior to the date hereof. Notwithstanding anything contained in this Amendment Agreement to the contrary contrary, and without implication that the contrary would otherwise be true, other than with respect to a proposed sixth amendment to the Facility Agreement, the Borrower expressly acknowledges and agrees that no Purchaser that, from and after the Announcing 8-K Filing, neither the Lender nor any affiliate of the Lender shall have (unless expressly agreed to by a particular Purchaser the Lender after the date hereof in a written definitive and binding agreement executed by the Borrower and such particular Purchaser the Lender or customary oral (confirmed by e-mail) “wall-wall cross” agreement (it being understood and agreed that no Purchaser may bind any other Purchaser with respect thereto))agreement, any duty of trust or confidence with respect to, or a duty not to trade on the basis in any securities while aware of, any information regarding the Borrower. Notwithstanding any affirmative disclosure For the avoidance of doubt, the Borrower’s obligations under this Section 3.03 shall not be deemed to limit or otherwise modify the Borrower’s obligations under Section 5.8 of the Borrower or Guarantor pursuant to the terms of this Amendment or any of the other Transaction Documents or anything else to the contrary contained herein or therein, other than with respect to a proposed sixth amendment to the Facility Agreement, (a), subject to clause (b) below, each of the Borrower and Guarantor shall not, and shall cause each of its officers, directors, employees and agents to not on behalf of the Borrower, provide any Purchaser with any material non-public information with respect to the Borrower without the express prior written consent of such Purchaser, and (b) in the event that the Borrower or Guarantor believes that a notice or communication to any Purchaser contains material, nonpublic information with respect to the Borrower, the Borrower shall so indicate to such Purchaser prior to the delivery of such notice or communication, and such indication shall provide such Purchaser the means to refuse to receive such notice or communication (in which case any time period to deliver such notice or communication to any Purchaser shall automatically be deemed tolled with respect to each Purchaser until one Business Day after such Purchaser has advised the Borrower whether it wishes to receive or refuse such notice or communication and any obligation of the Borrower to provide such notice to such Purchaser under the Facility Agreement or this Amendment shall be deemed waived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communication). In the absence of any such indication by Borrower to a Purchaser, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material nonpublic information with respect to the Borrower.