LENDER UNDER THIS
AGREEMENT OR ANY NOTE, PROVIDED THAT SUCH RIGHT OF SETOFF SHALL BE SUBJECT TO
THE APPROVAL OF THE REQUIRED LENDERS AND TO THE OBLIGATIONS OF SUCH PARTICIPANT
TO SHARE WITH THE LENDERS, AND THE LENDERS AGREE TO SHARE WITH SUCH PARTICIPANT,
AS PROVIDED IN SECTION 3.7 AS IF THE PARTICIPANT WERE A LENDER HEREUNDER.
THE
BORROWERS ALSO AGREE THAT ANY PARTICIPANT SHALL BE ENTITLED TO THE BENEFITS OF
(I) SECTION 9.4 AND (II) SECTIONS 2.5 AND 3.5, WITH RESPECT TO ITS PARTICIPATION
IN THE COMMITMENTS AND THE LOANS OUTSTANDING FROM TIME TO TIME; PROVIDED, THAT
NO PARTICIPANT SHALL BE ENTITLED TO RECEIVE ANY GREATER AMOUNT PURSUANT TO THE
SECTIONS REFERRED TO IN CLAUSE (II) THAN THE TRANSFEROR LENDER WOULD HAVE BEEN
ENTITLED TO RECEIVE IN RESPECT OF THE AMOUNT OF THE PARTICIPATION TRANSFERRED BY
SUCH TRANSFEROR LENDER TO SUCH PARTICIPANT HAD NO SUCH TRANSFER OCCURRED AND
EACH PARTICIPANT SHALL BE SUBJECT TO THE OBLIGATIONS OF SUCH LENDER SET FORTH IN
SUCH SECTIONS.
NO LENDER SHALL GRANT ANY PARTICIPATION UNDER WHICH THE
PARTICIPANT SHALL HAVE RIGHTS TO APPROVE ANY AMENDMENT TO OR WAIVER OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OTHER THAN THOSE ITEMS WHICH REQUIRE THE
CONSENT OF ALL LENDERS HEREUNDER.
72
(B)
WITH THE CONSENT OF THE AGENT (AND PRIOR TO THE OCCURRENCE OF AN
EVENT OF DEFAULT, WITH THE CONSENT OF THE BORROWERS' REPRESENTATIVE WHICH SHALL
NOT BE UNREASONABLY WITHHELD OR DELAYED), ANY LENDER MAY AT ANY TIME SELL TO ANY
PURCHASING LENDER ALL OR ANY PART IN A MINIMUM AMOUNT OF FIVE MILLION DOLLARS
($5,000,000), OF ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT AND THE NOTES
PURSUANT TO A TRANSFER SUPPLEMENT, EXECUTED BY SUCH PURCHASING LENDER, SUCH
TRANSFEROR LENDER AND THE AGENT.
UPON (I) SUCH EXECUTION OF SUCH TRANSFER
SUPPLEMENT, AND (II) DELIVERY OF A FULLY EXECUTED COPY THEREOF TO THE BORROWERS'
REPRESENTATIVE, SUCH PURCHASING LENDER SHALL FOR ALL PURPOSES BE A LENDER PARTY
TO THIS AGREEMENT AND SHALL HAVE ALL THE RIGHTS AND OBLIGATIONS OF A LENDER
UNDER THIS AGREEMENT, TO THE SAME EXTENT AS IF IT WERE AN ORIGINAL PARTY HERETO
WITH AN WORKING CAPITAL FACILITY PERCENTAGE AS SET FORTH IN SUCH TRANSFER
SUPPLEMENT, AND NO FURTHER CONSENT OR ACTION BY THE BORROWERS, THE LENDERS OR
THE AGENT SHALL BE REQUIRED.
SUCH TRANSFER SUPPLEMENT SHALL BE DEEMED TO AMEND
THIS AGREEMENT TO THE EXTENT, AND ONLY TO THE EXTENT, NECESSARY TO REFLECT THE
ADDITION OF SUCH PURCHASING LENDER AND THE RESULTING ADJUSTMENT OF WORKING
CAPITAL FACILITY PERCENTAGES ARISING FROM THE PURCHASE BY SUCH PURCHASING LENDER
OF ALL OR A PORTION OF THE RIGHTS AND OBLIGATIONS OF SUCH TRANSFEROR LENDER
UNDER THIS AGREEMENT AND THE NOTES.
UPON THE CONSUMMATION OF ANY TRANSFER TO A
PURCHASING LENDER PURSUANT TO THIS PARAGRAPH (B), THE TRANSFEROR LENDER, THE
AGENT AND THE BORROWERS SHALL MAKE APPROPRIATE ARRANGEMENTS SO THAT, IF
REQUIRED, REPLACEMENT NOTES ARE ISSUED TO SUCH TRANSFEROR LENDER AND NEW NOTES
TO THE PURCHASING LENDER IN THE AMOUNT EQUAL TO THEIR RESPECTIVE COMMITMENTS AND