ANY BANK MAY AT ANY TIME GRANT TO ANY PERSON IN ANY AMOUNT (ALSO A
"PARTICIPANT"), PARTICIPATING INTERESTS IN ITS COMMITMENT OR ANY OR ALL OF ITS
LOANS.
ANY PARTICIPATION MADE DURING THE CONTINUATION OF AN EVENT OF DEFAULT
SHALL NOT BE AFFECTED BY THE SUBSEQUENT CURE OF SUCH EVENT OF DEFAULT. IN THE
EVENT OF ANY SUCH GRANT BY A BANK OF A PARTICIPATING INTEREST TO A PARTICIPANT,
WHETHER OR NOT UPON NOTICE TO THE BORROWER AND THE ADMINISTRATIVE AGENT, SUCH
BANK SHALL REMAIN RESPONSIBLE FOR THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER,
AND THE BORROWER AND THE ADMINISTRATIVE AGENT SHALL CONTINUE TO DEAL SOLELY AND
DIRECTLY WITH SUCH BANK IN CONNECTION WITH SUCH BANK'S RIGHTS AND OBLIGATIONS
UNDER THIS AGREEMENT.
ANY AGREEMENT PURSUANT TO WHICH ANY BANK MAY GRANT SUCH A
PARTICIPATING INTEREST 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 PROVISION OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT;
PROVIDED THAT SUCH PARTICIPATION AGREEMENT MAY PROVIDE THAT SUCH BANK WILL NOT
AGREE TO ANY MODIFICATION, AMENDMENT OR WAIVER OF THIS AGREEMENT DESCRIBED IN
CLAUSE (I), (II), (III) OR (IV) OF SECTION 9.5(A) WITHOUT THE CONSENT OF THE
PARTICIPANT. THE BORROWER AGREES THAT EACH PARTICIPANT SHALL, TO THE EXTENT
PROVIDED IN ITS PARTICIPATION AGREEMENT, BE ENTITLED TO THE BENEFITS OF ARTICLE
VIII WITH RESPECT TO ITS PARTICIPATING INTEREST.
(C)
ANY BANK MAY AT ANY TIME ASSIGN TO A QUALIFIED INSTITUTION (IN
EACH CASE, AN "ASSIGNEE") (I) PRIOR TO THE OCCURRENCE OF AN EVENT OF DEFAULT, IN
MINIMUM AMOUNTS OF NOT LESS THAN FIVE MILLION DOLLARS ($5,000,000) AND INTEGRAL
MULTIPLE OF ONE MILLION DOLLARS ($1,000,000) THEREAFTER (OR ANY LESSER AMOUNT IN
THE CASE OF ASSIGNMENTS TO AN EXISTING BANK OR ANY AFFILIATE THEREOF OR IN THE
CASE OF AN ASSIGNMENT OF A BANK'S ENTIRE COMMITMENT) AND (II) AFTER THE
OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, IN ANY AMOUNT, ALL
OR A PROPORTIONATE PART OF ALL, OF ITS RIGHTS AND OBLIGATIONS UNDER THIS
AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS, AND, IN EITHER CASE, SUCH
ASSIGNEE SHALL ASSUME SUCH RIGHTS AND OBLIGATIONS, PURSUANT TO A TRANSFER
SUPPLEMENT IN SUBSTANTIALLY THE FORM OF EXHIBIT "E" HERETO
79
EXECUTED BY SUCH ASSIGNEE AND SUCH TRANSFEROR BANK; PROVIDED, THAT IF NO EVENT
OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, SUCH ASSIGNMENT SHALL BE
SUBJECT TO THE ADMINISTRATIVE AGENT'S, THE FRONTING BANK'S (IF A PERSON OTHER
THAN THE ADMINISTRATIVE AGENT) AND THE BORROWER'S CONSENT, WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD OR DELAYED; AND PROVIDED FURTHER THAT IF AN
ASSIGNEE IS AN AFFILIATE OF SUCH TRANSFEROR BANK OR WAS A BANK OR AFFILIATE
THEREOF IMMEDIATELY PRIOR TO SUCH ASSIGNMENT, NO SUCH CONSENT SHALL BE REQUIRED
FROM THE BORROWER, THE ADMINISTRATIVE AGENT OR THE FRONTING BANK; AND PROVIDED
FURTHER THAT SUCH ASSIGNMENT MAY, BUT NEED NOT, INCLUDE RIGHTS OF THE TRANSFEROR
BANK IN