(5) SUCH ASSIGNEE APPOINTS AND AUTHORIZES AGENT TO TAKE
SUCH ACTIONS AS AGENT ON ITS BEHALF AND TO EXERCISE SUCH POWERS UNDER THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE INTERCREDITOR AGREEMENT AS ARE
DELEGATED TO AGENT, BY THE TERMS HEREOF AND THEREOF, TOGETHER WITH SUCH POWERS
AS ARE REASONABLY INCIDENTAL THERETO, (6) SUCH ASSIGNEE AGREES THAT IT WILL
PERFORM IN ACCORDANCE WITH THEIR TERMS ALL OF THE OBLIGATIONS WHICH BY THE TERMS
OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE REQUIRED TO BE PERFORMED BY
IT AS A LENDER, AND (7) SUCH ASSIGNEE EXPRESSLY ASSUMES ALL RIGHTS AND
OBLIGATIONS OF SUCH ASSIGNING LENDER UNDER THE INTERCREDITOR AGREEMENT AND
AGREES TO BE BOUND BY THE TERMS THEREOF.
(D)
IN EXCHANGE FOR PROMISSORY NOTES PREVIOUSLY DELIVERED BY THE
BORROWERS TO THE ASSIGNING LENDER (IF ANY), THE BORROWERS SHALL EXECUTE AND
DELIVER TO THE AGENT, NEW PROMISSORY NOTES EVIDENCING SUCH ASSIGNEE'S ASSIGNED
TERM LOAN B AND, IF THE ASSIGNOR LENDER HAS RETAINED A PORTION OF ITS TERM LOAN
B, APPROPRIATE REPLACEMENT PROMISSORY NOTES IN THE PRINCIPAL AMOUNT OF THE TERM
LOAN B RETAINED BY THE ASSIGNING LENDER.
IMMEDIATELY UPON EACH ASSIGNEE'S
MAKING ITS PROCESSING FEE PAYMENT UNDER THE ASSIGNMENT AND ACCEPTANCE, THIS
AGREEMENT SHALL BE DEEMED TO BE AMENDED TO THE EXTENT, BUT ONLY TO THE EXTENT,
NECESSARY TO REFLECT THE ADDITION OF THE ASSIGNEE AND THE RESULTING ADJUSTMENT
OF THE TERM LOAN B ARISING THEREFROM.
(E)
ANY LENDER MAY AT ANY TIME SELL TO ONE OR MORE COMMERCIAL BANKS,
FINANCIAL INSTITUTIONS, OR OTHER PERSONS NOT AFFILIATES OF THE LOAN PARTIES (A
"PARTICIPANT") PARTICIPATING INTERESTS IN ALL OR ANY PORTION OF ITS OBLIGATIONS,
THE COMMITMENTS, AND THE OTHER INTERESTS OF THAT LENDER (THE "ORIGINATING
LENDER") HEREUNDER AND UNDER THE OTHER LOAN
56
DOCUMENTS; PROVIDED, HOWEVER, THAT (I) THE ORIGINATING LENDER SHALL REMAIN A
"LENDER" FOR ALL PURPOSES OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE
PARTICIPANT RECEIVING THE PARTICIPATING INTEREST IN THE OBLIGATIONS AND THE
OTHER RIGHTS AND INTERESTS OF THE ORIGINATING LENDER HEREUNDER SHALL NOT
CONSTITUTE A "LENDER" HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE
ORIGINATING LENDER'S OBLIGATIONS UNDER THIS AGREEMENT SHALL REMAIN UNCHANGED,
(II) THE ORIGINATING LENDER SHALL REMAIN SOLELY RESPONSIBLE FOR THE PERFORMANCE
OF SUCH OBLIGATIONS, (III) BORROWERS AND AGENT SHALL CONTINUE TO DEAL SOLELY AND
DIRECTLY WITH THE ORIGINATING LENDER IN CONNECTION WITH THE ORIGINATING LENDER'S
RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND
(IV) NO LENDER SHALL TRANSFER OR GRANT ANY PARTICIPATING INTEREST UNDER WHICH
THE PARTICIPANT HAS THE RIGHT TO APPROVE ANY AMENDMENT TO, OR ANY CONSENT OR
WAIVER WITH RESPECT TO, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT FOR
ANY SUCH AMENDMENT, CONSENT OR WAIVER THAT REDUCES OR POSTPONES ANY AMOUNTS
PAYABLE IN WHICH SUCH PARTICIPANT IS PARTICIPATING (OTHER THAN ANY AMENDMENT,
CONSENT OR WAIVER TO SECTION 2.4(C)) OR RELEASES ALL OR SUBSTANTIALLY ALL OF THE
COLLATERAL), AND ALL AMOUNTS PAYABLE BY LOAN PARTIES HEREUNDER (INCLUDING,
WITHOUT LIMITATION, AMOUNTS PAYABLE UNDER SECTION 2.14 AND