AGREEMENT PURSUANT TO WHICH
SUCH BANK MAY GRANT A PARTICIPATION:
(X) SHALL PROVIDE THAT SUCH BANK SHALL
RETAIN THE SOLE RIGHT AND RESPONSIBILITY TO ENFORCE THE OBLIGATIONS OF THE
BORROWER HEREUNDER INCLUDING, WITHOUT LIMITATION, THE RIGHT TO APPROVE ANY
AMENDMENT, MODIFICATION OR WAIVER OF ANY PROVISIONS OF THIS AGREEMENT; (Y) MAY
PROVIDE THAT SUCH BANK WILL NOT AGREE TO ANY MODIFICATION, AMENDMENT OR WAIVER
OF THIS AGREEMENT WITHOUT THE CONSENT OF THE PARTICIPANT IF SUCH MODIFICATION,
AMENDMENT OR WAIVER WOULD REDUCE THE PRINCIPAL OF OR RATE OF INTEREST ON ANY
LOAN OR POSTPONE THE DATE FIXED FOR ANY PAYMENT OF PRINCIPAL OF OR INTEREST ON
ANY LOAN OR RELEASE (IN WHOLE OR IN PART) ANY GUARANTOR OR ALL OR SUBSTANTIALLY
ALL OF THE COLLATERAL; AND (Z) SHALL NOT RELIEVE SUCH BANK FROM ITS OBLIGATIONS,
WHICH SHALL REMAIN ABSOLUTE, TO MAKE LOANS HEREUNDER.
(B)
NOTWITHSTANDING ANYTHING IN THE FOREGOING TO THE CONTRARY, (I) NO
PARTICIPANT SHALL HAVE ANY DIRECT RIGHTS HEREUNDER, (II) THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE BANKS OTHER THAN THE SELLING BANK SHALL DEAL SOLELY
WITH THE SELLING BANK AND SHALL NOT BE OBLIGATED TO EXTEND ANY RIGHTS OR MAKE
ANY PAYMENT TO, OR SEEK ANY CONSENT OF, THE PARTICIPANT, AND (III) NO
PARTICIPATION SHALL RELIEVE THE SELLING BANK FROM ITS COMMITMENT TO MAKE LOANS
HEREUNDER OR ANY OF ITS OTHER OBLIGATIONS HEREUNDER AND SUCH BANK SHALL REMAIN
SOLELY RESPONSIBLE FOR THE PERFORMANCE THEREOF.
SECTION 10.04.
INFORMATION.
A BANK MAY, IN CONNECTION WITH ANY
ASSIGNMENT OR PARTICIPATION OR PROPOSED ASSIGNMENT OR PARTICIPATION PURSUANT TO
THIS ARTICLE X, DISCLOSE TO THE ASSIGNEE OR PARTICIPANT (OR PROPOSED ASSIGNEE OR
PARTICIPANT) ANY INFORMATION CONCERNING THE BORROWER, ITS RESPECTIVE OFFICERS,
DIRECTORS AND AFFILIATES, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION IN
REGARD TO THE CREDITWORTHINESS OF THE BORROWER, OBTAINED BY THE BANK PURSUANT TO
THE LOAN DOCUMENTS; PROVIDED, THAT SUCH BANK TAKES REASONABLE PRECAUTIONS TO
ASSURE THAT THE CONFIDENTIALITY THEREOF IS MAINTAINED; AND PROVIDED FURTHER,
THAT NOTHING IN THIS SECTION 10.04 SHALL LIMIT THE ABILITY OF ANY BANK TO
DISCLOSE TO ANY PERSON ANY INFORMATION CONCERNING THE BORROWER, ITS RESPECTIVE
OFFICERS, DIRECTORS AND AFFILIATES:
(A) TO ITS ATTORNEYS, AUDITORS, AGENTS,
PROFESSIONAL ADVISORS, TRUSTEES OR AFFILIATES (WHO ARE ADVISED OF THE
CONFIDENTIAL NATURE OF SUCH INFORMATION), OTHER THAN AFFILIATES WHICH, TO THE
ACTUAL KNOWLEDGE OF SUCH BANK, ARE IN DIRECT COMPETITION WITH THE BORROWER OR
WOULD REASONABLY BE EXPECTED IN THE NEAR FUTURE TO BE IN DIRECT COMPETITION WITH
THE BORROWER, (B) TO THE EXTENT SUCH INFORMATION PRESENTLY IS OR HEREAFTER
BECOMES AVAILABLE TO SUCH BANK ON A NON-CONFIDENTIAL BASIS FROM ANY SOURCE OR
SUCH INFORMATION IS IN THE PUBLIC DOMAIN AT THE TIME OF DISCLOSURE, (C) TO THE
EXTENT REQUIRED BY LAW (INCLUDING APPLICABLE SECURITIES LAW), REGULATION,
REQUIREMENT, RULING, OR LEGAL OR JUDICIAL ORDER OR PROCESS OR REQUIRED OR
APPROPRIATE TO BE DISCLOSED IN ANY REPORT, STATEMENT OR TESTIMONY SUBMITTED TO
ANY REGULATORY AUTHORITY, (D) TO ANY RATING AGENCY TO THE EXTENT REQUIRED IN
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CONNECTION WITH ANY RATING TO BE ASSIGNED TO