Common use of Disclosure; Confidentiality Clause in Contracts

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, after giving effect to the 8-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, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 2:30 p.m..7:00 a.m., New York time, on September 5, 2018the 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 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 Agreement, the Fifth 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 Agreement to the contrary and without implication that the contrary would otherwise be true, after giving effect to the 8-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, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

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, after giving effect other than with respect to a proposed sixth amendment to the 8-K FilingFacility 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 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, Affiliates employees and agents to notnot on behalf of the Borrower, 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 waivedwaived if such Purchaser fails to advise the Borrower that it wishes to refuse such notice or communication), and in . In the absence of any such indicationindication 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 non-public nonpublic information with respect to the Borrower and shall have no duty of trust or confidence with respect theretoBorrower.

Disclosure; Confidentiality. On or before 2:30 p.m..8:00 a.m., New York time, on September 5, 2018the 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 AmendmentAgreement and the GPC License Agreement, disclosing the effectiveness of each of such agreement, attaching this Amendment Agreement and the GPC License Agreement and disclosing any other presently material non-public information (if any) provided or made available to any Purchaser Lender (or any PurchaserLender’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 “Announcing 8-K Filing”). From The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, the Borrower it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Purchaser Lender (or any PurchaserLender’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 Agreement or otherwise (including with respect to the GPC License Agreement) on or prior to the date hereof. The Borrower also represents and warrants, including with respect for the avoidance of doubt and without limiting the foregoing, that by making any redactions to the transactions described 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 Borrower’s press release dated September 4, 2018GPC 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, after giving effect to the 8-K Filing, 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 the Guarantor pursuant to the terms of this Amendment or any Facility Agreement, as deemed amended by Sections 3.04(e) and (f) of the other Transaction Documents or anything else to the contrary contained herein or thereinExchange Agreement, (a)dated as of October 5, subject to clause (b) below2018, each of among the Borrower and the Guarantor shall notLenders, remains in full force and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect theretoeffect.

Disclosure; Confidentiality. On or before 2:30 p.m..The Borrower represents and warrants that, New York time, on September 5, 2018, from and after the Borrower shall file a Current Report on Form filing of the Announcing 8-K describing Filing (as defined below), it shall have publicly disclosed all the material terms of the transactions contemplated by this Amendment, attaching this Amendment and disclosing any other presently material non-public information MNPI (if anyas defined below) provided or made available to any Purchaser the Lender (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 PurchaserLender’s agents or representatives) by the Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Amendment Agreement 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 Agreement to the contrary contrary, and without implication that the contrary would otherwise be true, after giving effect to the 8-K Filing, 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 any other Loan Party. The Borrower understands and acknowledges that the Guarantor pursuant to Lender, its affiliates and Persons acting on their behalf will rely on the terms of 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, (a), subject to clause (b) below, each securities of the Borrower and of other Persons. For the Guarantor avoidance of doubt, the Borrower’s obligations under this Section 4.03 shall not, and shall cause each of its officers, directors, employees, Affiliates and agents not be deemed to not, provide any Purchaser with any material non-public information with respect to limit or otherwise modify the Borrower from and after the filing Borrower’s obligations under Section 5.18 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect theretoAgreement.

Disclosure; Confidentiality. On or before 2:30 p.m..8:00 a.m., New York time, on September 5December 28, 20182020, 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 Purchaser Deerfield Lender (or any PurchaserDeerfield Lender’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 “Announcing 8-K Filing”). From The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, the Borrower it shall have publicly disclosed all material, non-non public information (if any) provided or made available to any Purchaser Deerfield Lender (or any PurchaserDeerfield Lender’s agents or representatives) by the 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 contrary, and without implication that the contrary would otherwise be true, after giving effect to the 8-K Filing, 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 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, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On (A) The Bank is hereby authorized to disclose any financial or before 2:30 p.m.., New York time, on September 5, 2018, other information it may have about the Borrower shall file a Current Report on Form 8-K describing or any Subsidiary to any present or future purchaser, participant or assignee or prospective participant or assignee, any regulatory body or agency having jurisdiction over the Bank, or to any Person which succeeds' to all the material terms or any part of the transactions contemplated by this AmendmentBank's interest herein; provided, 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 however, that prior to the date hereof and that occurrence of an Event of Default, as a condition to the release of such information to a purchaser, participant or assignee, such person shall agree to be bound by the confidentiality provisions set forth in this section. The information provided may include, but is not otherwise publicly disclosed at limited to, amounts, terms, balances, payment history, return item history and any financial or prior to other information about 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 Subsidiary and their respective Affiliates. (B) The Bank agrees to, and to take those steps reasonably required to cause its Affiliates, representatives and independent contractors to, take reasonable precautions and exercise due care to maintain the confidentiality of all information provided to it or on its behalf by the Borrower or any Subsidiary, under this Agreement or any other Loan Document, and neither it nor any of its respective officersAffiliates shall use any such information other than in connection with or in the enforcement of this Agreement and the other Loan Documents or in connection with other business now or hereafter existing or contemplated with the Borrower or any Subsidiary; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by the Bank, directorsor (ii) was or becomes available on a non-confidential basis from a source other than such the Borrower, employeesprovided that such source is not bound by a confidentiality agreement with the Borrower known to the Bank; provided, however, that the Bank may disclose such information (1) at the request or pursuant to any requirement of any Governmental Body to which the Bank is subject or in connection with an examination of the Bank by any such governmental body; (2) pursuant to subpoena or other court process provided the Borrower is given prior notice of such process to the extent the Bank is permitted to provide such notice; (3) when required to do so in accordance with the provisions of any applicable law provided the Borrower is given prior notice of such process to the extent the Bank is permitted to provide such notice; (4) to the extent reasonably required in connection with any litigation or proceeding to which the Bank or its Affiliates or agents may be party; (5) to the extent reasonably required in connection with the transactions contemplated by this Amendment exercise of any right or otherwise on remedy or prior under any other Loan Document; (6) to the date hereofBank's independent auditors and other professional advisors; (7) to any purchaser, including with respect participant or assignee actual or potential, provided that such Person agrees in writing to keep such information confidential to the transactions described in same extent required of the Borrower’s press release dated September 4, 2018. Notwithstanding anything contained in this Amendment Bank hereunder; (8) as to the contrary and without implication that Bank or its Affiliates, as expressly permitted under the contrary would otherwise be true, after giving effect to the 8-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 terms of any other Purchaser with respect thereto)), any duty of trust document or confidence with respect to, or a duty not agreement regarding confidentiality to trade on the basis of, any information regarding the Borrower. Notwithstanding any affirmative disclosure obligations of which 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, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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, Subsidiary is a party; and (b9) 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect theretoits Affiliates.

Disclosure; Confidentiality. On or before 2:30 p.m..7:00 a.m., New York time, on September 5, 2018the 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 and that is not otherwise publicly disclosed at or prior to the time of such filing (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, 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, after giving effect to the 8-K Filing, 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, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 2:30 p.m..8:00 a.m., New York time, on September 5, 2018the 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 AmendmentAgreement, 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 Amendment 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 Purchaser Lender (or any PurchaserLender’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 “Announcing 8-K Filing”). From The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, the Borrower it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Purchaser Lender (or any PurchaserLender’s agents or representatives) by the Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Amendment Agreement 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 Agreement to the contrary contrary, and without implication that the contrary would otherwise be true, after giving effect to the 8-K Filing, 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 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, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 2:30 p.m..8:00 a.m., New York time, on September 5, 2018the 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 AmendmentAgreement, the A&R Certificate of Designation and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, attaching this Amendment 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 Purchaser Deerfield Lender (or any PurchaserDeerfield Lender’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 “Announcing 8-K Filing”). From 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, the Borrower it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Purchaser Deerfield Lender (or any PurchaserDeerfield Lender’s agents or representatives) by the Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Amendment Agreement 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 Agreement to the contrary contrary, and without implication that the contrary would otherwise be true, after giving effect to the 8-K Filing, 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 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, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 2:30 p.m..8:00 a.m., New York time, on September 5, 2018the 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 AmendmentAgreement, 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 Amendment 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 any Purchaser the Lender (or any Purchaserthe Lender’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 “Announcing 8-K Filing”). From The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, the Borrower it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Purchaser the Lender (or any Purchaserthe Lender’s agents or representatives) by the Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Amendment Agreement 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 Agreement to the contrary contrary, and without implication that the contrary would otherwise be true, after giving effect to the 8-K Filing, 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 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, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect theretoAgreement.

Disclosure; Confidentiality. On or before 2:30 p.m..8:00 a.m., New York time, on September 5, 2018the 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 AmendmentAgreement, disclosing the effectiveness of this Agreement and the other Transaction Documents entered into pursuant to, or in connection with, this Agreement, attaching this Amendment 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 Purchaser Lender (or any PurchaserLender’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 “Announcing 8-K Filing”). From The Borrower represents and warrants that, from and after the filing of the Announcing 8-K Filing, the Borrower it shall have publicly disclosed all material, non-public information (if any) provided or made available to any Purchaser Lender (or any PurchaserLender’s agents or representatives) by the Borrower or any of its respective officers, directors, employees, Affiliates or agents in connection with the transactions contemplated by this Amendment Agreement 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 Agreement to the contrary contrary, and without implication that the contrary would otherwise be true, after giving effect to the 8-K Filing, 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 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, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 2:30 p.m..8:00 a.m., New York time, on September 5, 2018the 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 AmendmentAgreement, attaching this Amendment 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 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 Agreement 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 Agreement to the contrary and without implication that the contrary would otherwise be true, after giving effect to the 8-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, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect thereto.

Disclosure; Confidentiality. On or before 2:30 p.m..7:00 a.m., New York time, on September 5, 2018the 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 AmendmentAgreement, attaching this Amendment 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 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 Agreement 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 Agreement to the contrary and without implication that the contrary would otherwise be true, after giving effect to the 8-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 Loan Documents or anything else to the contrary contained herein or therein, (a), subject to clause (b) below, each of the Borrower and the Guarantor shall not, and shall cause each of its officers, directors, employees, Affiliates and agents to not, 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 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), and in the absence of any such indication, such Purchaser shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower and shall have no duty of trust or confidence with respect theretoBorrower.

Disclosure; Confidentiality. On or before 2:30 p.m..7:00 a.m., New York time, on September 5, 2018the first (1st) business day after the date of this Agreement, the Borrower Corporation shall file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by this AmendmentAgreement, attaching this Amendment 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 Purchaser Stockholder (or any PurchaserStockholder’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 Corporation shall have disclosed all material, non-public information (if any) provided or made available to any Purchaser Stockholder (or any PurchaserStockholder’s agents or representatives) by Borrower the Corporation, its Affiliates or any of its their respective officers, directors, employees, Affiliates directors or agents employees in connection with the transactions contemplated by this Amendment Agreement or otherwise on or prior to the date hereof. The Corporation expressly acknowledges and agrees that, including with respect to the transactions described in the Borrower’s press release dated September 4, 2018. Notwithstanding notwithstanding anything contained in this Amendment Agreement to the contrary and without implication that the contrary would otherwise be true, after giving effect to the 8-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 the 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 thereinin the Series C Preferred Stock Designation, (a), subject to clause (b) below, each of the Borrower and the Guarantor Corporation shall not, and shall cause each of its Affiliates and its and its Affiliates’ officers, directors, employees, Affiliates directors and agents employees to not, 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 the 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 obligation of the Borrower or the Guarantor Corporation to provide such notice to such Purchaser Stockholder under the Facility this Agreement or this Amendment shall be deemed waived), and in the absence of any such indication, such Purchaser Stockholder shall be allowed to presume that all matters relating to such notice or communication do not constitute material non-public information with respect to the Borrower Corporation and shall have no duty of trust or confidence with respect theretothereto or obligation to not trade any securities on the basis thereof.