SHARE OR PRO RATA CAP EX SHARE, AS APPLICABLE, IN AND TO ITS INTERESTS
UNDER THIS AGREEMENT (COLLECTIVELY, "PARTICIPATIONS") TO ANY OTHER LENDING
OFFICE OF SUCH LENDER OR TO ANY OTHER BANK, LENDING INSTITUTION OR OTHER ENTITY
WHICH THE GRANTING LENDER REASONABLY DETERMINES HAS THE REQUISITE SOPHISTICATION
TO EVALUATE THE MERITS AND RISKS OF INVESTMENTS IN PARTICIPATIONS
("PARTICIPANTS"); PROVIDED HOWEVER THAT: (I) ALL AMOUNTS PAYABLE BY THE BORROWER
TO EACH LENDER HEREUNDER AND VOTING RIGHTS OF EACH LENDER HEREUNDER SHALL BE
DETERMINED AS IF SUCH LENDER HAD NOT GRANTED SUCH PARTICIPATION; (II) ANY
AGREEMENT PURSUANT TO WHICH ANY LENDER MAY GRANT A PARTICIPATION (A) SHALL
PROVIDE THAT SUCH LENDER IS NOT DELEGATING AND THEREFORE SHALL RETAIN THE SOLE
RIGHT AND RESPONSIBILITY TO EXERCISE ALL OF ITS RIGHTS AND PRIVILEGES UNDER THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO APPROVE ANY AMENDMENT,
MODIFICATION OR WAIVER OF ANY PROVISIONS OF THIS AGREEMENT AND (B) SHALL NOT
RELEASE OR DISCHARGE SUCH LENDER FROM ITS DUTIES AND OBLIGATIONS, WHICH SHALL
REMAIN ABSOLUTE, HEREUNDER, INCLUDING ITS OBLIGATION TO MAKE ADVANCES HEREUNDER;
AND (III) UPON ENTERING INTO ANY SUCH PARTICIPATION, THE LENDER GRANTING SUCH
PARTICIPATION SHALL GIVE THIRTY (30) DAYS PRIOR WRITTEN NOTICE THEREOF TO AGENT.
53
(B)
EACH LENDER MAY AT ANY TIME ASSIGN ALL OR ANY PORTION OF ITS PRO
RATA LINE SHARE OR PRO RATA CAP EX SHARE, AS APPLICABLE, (TOGETHER WITH ITS
RIGHTS AND OBLIGATIONS WITH RESPECT THERETO) AND ITS RIGHT, TITLE AND INTEREST
THEREIN AND IN AND TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO A LENDER OR
ANY AFFILIATE OF A LENDER, OR TO ANY OTHER BANK OR FINANCIAL INSTITUTION, IN
EACH CASE WITH THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO AGENT AND BORROWER AND
SUBJECT TO THE PRIOR WRITTEN CONSENT OF THE AGENT AND, PROVIDED THAT NO DEFAULT
OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, THE PRIOR WRITTEN
CONSENT OF BORROWER, WHICH CONSENT OF BORROWER SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED; PROVIDED HOWEVER THAT (I) ANY ASSIGNMENT TO ANOTHER LENDER
(WHICH IS THEN A PARTY TO THIS AGREEMENT) OR TO ANY OTHER BANK OR FINANCIAL
INSTITUTION SHALL BE IN THE MINIMUM AMOUNT OF FIVE MILLION DOLLARS
($5,000,000.00); (II) THE PARTIES TO SUCH ASSIGNMENT SHALL EXECUTE AN ASSIGNMENT
AND ACCEPTANCE IN THE FORM OF SCHEDULE D HERETO AND SUCH OTHER DOCUMENTS
REASONABLY REQUESTED BY AGENT, AND BORROWER SHALL EXECUTE SUCH REPLACEMENT
NOTES, AMENDMENTS AND OTHER ITEMS AS MAY BE REQUESTED BY AGENT; AND (III) THE
PARTIES TO THE ASSIGNMENT SHALL PAY AGENT A PROCESSING FEE OF THREE THOUSAND
FIVE HUNDRED DOLLARS ($3,500.00) AT THE TIME OF PROVIDING SUCH ASSIGNMENT TO
AGENT.
(C)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EACH
LENDER MAY AT ANY TIME, PLEDGE OR ASSIGN ALL OR ANY PORTION OF ITS RIGHTS UNDER
THIS AGREEMENT AND/OR ITS INTEREST IN THE LOANS, THE NOTES, LETTER OF CREDIT,
L/C OBLIGATIONS OR ANY INTEREST IN ANY PARTICIPATION, INCLUDING COLLATERAL
THEREFORE, TO ANY FEDERAL RESERVE BANK IN ACCORDANCE WITH APPLICABLE LAW,
PROVIDED THAT NO SUCH