form and substance reasonably
satisfactory to Agent together with an ALTA lender's title insurance policy
issued by a title insurer reasonably satisfactory to Agent, in form and
substance and in an amount reasonably satisfactory to Agent, insuring that the
mortgage or deed of trust is a valid and enforceable first priority mortgage
lien on the respective property, free and clear of all defects, encumbrances and
Liens, other than Permitted Encumbrances; and
(b)
Such Permitted Acquisition is otherwise
permitted under the terms of this Agreement and all other conditions precedent
have been fully satisfied or waived by Agent, in writing.
SECTION 8.
ASSIGNMENT AND PARTICIPATION
8.1
ASSIGNMENT AND PARTICIPATIONS.
(A)
SUBJECT TO THE TERMS OF THIS SECTION 8.1,
ANY LENDER MAY MAKE AN ASSIGNMENT TO A QUALIFIED ASSIGNEE OF, OR SALE OF
PARTICIPATIONS IN, AT ANY TIME OR TIMES, THE LOAN DOCUMENTS, LOANS, LETTER OF
CREDIT OBLIGATIONS AND ANY REVOLVING LOAN COMMITMENT OR ANY PORTION THEREOF OR
INTEREST THEREIN, INCLUDING ANY LENDER'S RIGHTS, TITLE, INTERESTS, REMEDIES,
POWERS OR DUTIES THEREUNDER.
ANY ASSIGNMENT BY A LENDER SHALL:
(I) REQUIRE THE
CONSENT OF AGENT (WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED
WITH RESPECT TO A QUALIFIED ASSIGNEE) AND THE EXECUTION OF AN ASSIGNMENT
AGREEMENT (AN "ASSIGNMENT AGREEMENT" SUBSTANTIALLY IN THE FORM ATTACHED HERETO
AS EXHIBIT 8.1 AND OTHERWISE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO,
AND ACKNOWLEDGED BY, AGENT); (II) BE CONDITIONED ON SUCH ASSIGNEE LENDER
REPRESENTING TO THE ASSIGNING LENDER, AGENT AND BORROWER THAT IT IS PURCHASING
THE APPLICABLE LOANS TO BE ASSIGNED TO IT FOR ITS OWN ACCOUNT, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF; (III) AFTER GIVING
EFFECT TO ANY SUCH PARTIAL ASSIGNMENT, THE ASSIGNEE LENDER SHALL HAVE REVOLVING
LOAN COMMITMENTS IN AN AMOUNT AT LEAST EQUAL TO $2,500,000 AND THE ASSIGNING
LENDER SHALL HAVE RETAINED REVOLVING LOAN COMMITMENTS IN AN AMOUNT AT LEAST
EQUAL TO $2,500,000; (IV) REQUIRE A PAYMENT TO AGENT OF AN
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ASSIGNMENT FEE OF $3,500 AND (V) SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND
IS CONTINUING, REQUIRE THE CONSENT OF BORROWER, WHICH SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED AND SHALL BE DEEMED GRANTED IF NOT OBJECTED TO WITHIN THREE
(3) BUSINESS DAYS FOLLOWING NOTICE THEREOF TO BORROWER; PROVIDED THAT NO SUCH
CONSENT SHALL BE REQUIRED FOR AN ASSIGNMENT TO A QUALIFIED ASSIGNEE.
IN THE
CASE OF AN ASSIGNMENT BY A LENDER UNDER THIS SECTION 8.1, THE ASSIGNEE SHALL
HAVE, TO THE EXTENT OF SUCH ASSIGNMENT, THE SAME RIGHTS, BENEFITS AND
OBLIGATIONS AS ALL OTHER LENDERS HEREUNDER.
THE ASSIGNING LENDER SHALL BE
RELIEVED OF ITS OBLIGATIONS HEREUNDER WITH RESPECT TO ITS REVOLVING LOAN
COMMITMENTS OR ASSIGNED PORTION THEREOF FROM AND AFTER THE DATE OF SUCH
ASSIGNMENT.
BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT ANY ASSIGNMENT SHALL
GIVE RISE TO A DIRECT OBLIGATION OF BORROWER TO THE ASSIGNEE AND THAT THE
ASSIGNEE SHALL BE CONSIDERED TO BE A "LENDER."
IN ALL INSTANCES, EACH LENDER'S
LIABILITY TO MAKE LOANS HEREUNDER SHALL BE SEVERAL AND NOT JOINT AND