OR TO PURCHASE ANY PARTICIPATION IN ANY SWING LINE LOAN TO BE
MADE OR PURCHASED BY IT ON THE DATE SPECIFIED THEREFOR SHALL NOT RELIEVE ANY
OTHER LENDER (EACH SUCH OTHER REVOLVING LENDER, AN "OTHER LENDER") OF ITS
OBLIGATIONS TO MAKE SUCH ADVANCE OR PAYMENT ON SUCH DATE, BUT NEITHER ANY OTHER
LENDER NOR AGENT SHALL BE RESPONSIBLE FOR THE FAILURE OF ANY NON-FUNDING LENDER
TO MAKE AN ADVANCE OR MAKE ANY OTHER PAYMENT REQUIRED HEREUNDER.
NOTWITHSTANDING ANYTHING SET FORTH HEREIN TO THE CONTRARY, A NON-FUNDING LENDER
SHALL NOT HAVE ANY VOTING OR CONSENT RIGHTS UNDER OR WITH RESPECT TO ANY LOAN
DOCUMENT OR CONSTITUTE A "LENDER" OR A "REVOLVING LENDER" (OR BE (OR HAVE ITS
COMMITMENT) INCLUDED IN THE CALCULATION OF "REQUISITE LENDERS" OR "REQUISITE
REVOLVING LENDERS" HEREUNDER) FOR ANY VOTING OR CONSENT RIGHTS UNDER OR WITH
RESPECT TO ANY LOAN DOCUMENT.
AT BORROWER'S REQUEST, AGENT OR A PERSON
ACCEPTABLE TO AGENT SHALL HAVE THE RIGHT WITH AGENT'S CONSENT AND IN AGENT'S
SOLE DISCRETION (BUT SHALL HAVE NO OBLIGATION) TO PURCHASE FROM ANY NON-FUNDING
LENDER, AND EACH NON-FUNDING LENDER AGREES THAT IT SHALL, AT AGENT'S REQUEST,
SELL AND ASSIGN TO AGENT OR SUCH PERSON, ALL OF THE COMMITMENTS OF THAT
NON-FUNDING LENDER FOR AN AMOUNT EQUAL TO THE PRINCIPAL BALANCE OF ALL LOANS
HELD BY SUCH NON-FUNDING LENDER AND ALL ACCRUED INTEREST AND FEES WITH RESPECT
THERETO THROUGH THE DATE OF SALE, SUCH PURCHASE AND SALE TO BE CONSUMMATED
PURSUANT TO AN EXECUTED ASSIGNMENT AGREEMENT.
(E)
DISSEMINATION OF INFORMATION.
AGENT SHALL
USE REASONABLE EFFORTS TO PROVIDE LENDERS WITH ANY NOTICE OF DEFAULT OR EVENT OF
DEFAULT RECEIVED BY AGENT FROM, OR DELIVERED BY AGENT TO, ANY CREDIT PARTY, WITH
NOTICE OF ANY EVENT OF DEFAULT OF WHICH AGENT HAS ACTUALLY BECOME AWARE AND WITH
NOTICE OF ANY ACTION TAKEN BY AGENT FOLLOWING ANY EVENT OF DEFAULT; PROVIDED,
THAT AGENT SHALL NOT BE LIABLE TO ANY LENDER FOR ANY FAILURE TO DO SO, EXCEPT TO
THE EXTENT THAT SUCH FAILURE IS ATTRIBUTABLE TO AGENT'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION.
LENDERS ACKNOWLEDGE THAT BORROWER IS REQUIRED TO PROVIDE FINANCIAL STATEMENTS
AND COLLATERAL REPORTS TO LENDERS IN ACCORDANCE WITH ANNEXES E AND F HERETO AND
AGREE THAT AGENT SHALL HAVE NO DUTY TO PROVIDE THE SAME TO LENDERS.
73
(F)
ACTIONS IN CONCERT.
ANYTHING IN THIS
AGREEMENT TO THE CONTRARY NOTWITHSTANDING, EACH LENDER HEREBY AGREES WITH EACH
OTHER LENDER THAT NO LENDER SHALL TAKE ANY ACTION TO PROTECT OR ENFORCE ITS
RIGHTS ARISING OUT OF THIS AGREEMENT OR THE NOTES (INCLUDING EXERCISING ANY
RIGHTS OF SETOFF) WITHOUT FIRST OBTAINING THE PRIOR WRITTEN CONSENT OF THE
REQUISITE LENDERS, IT BEING THE INTENT OF LENDERS THAT ANY SUCH ACTION TO
PROTECT OR ENFORCE RIGHTS UNDER THIS AGREEMENT AND THE NOTES SHALL BE TAKEN IN
CONCERT AND AT THE DIRECTION OR WITH THE CONSENT OF THE REQUISITE LENDERS.
10
SUCCESSORS AND ASSIGNS
10.1
Successors and Assigns.
This Agreement and the
other Loan Documents shall be