UPON, THE
COLLATERAL OR ANY BOND OR SECURITY THAT MIGHT BE REQUIRED BY ANY COURT PRIOR TO
ALLOWING AGENT TO EXERCISE ANY OF ITS REMEDIES, AND (C) THE BENEFIT OF ALL
VALUATION, APPRAISAL, MARSHALING AND EXEMPTION LAWS.
9.
ASSIGNMENT AND PARTICIPATIONS;
APPOINTMENT OF AGENT
9.1
ASSIGNMENT AND PARTICIPATIONS.
(A)
SUBJECT TO THE TERMS OF THIS SECTION 9.1,
ANY LENDER MAY MAKE AN ASSIGNMENT TO A QUALIFIED ASSIGNEE OF, OR SELL
PARTICIPATIONS IN, AT ANY TIME OR TIMES, THE LOAN DOCUMENTS, LOANS, LETTER OF
CREDIT OBLIGATIONS AND ANY COMMITMENT OR ANY PORTION THEREOF OR INTEREST
THEREIN, INCLUDING ANY LENDER'S RIGHTS, TITLE, INTERESTS, REMEDIES, POWERS OR
DUTIES THEREUNDER; PROVIDED, HOWEVER, THAT EACH SUCH ASSIGNMENT MUST BE OF A
FIXED PERCENTAGE OF ALL OF SUCH LENDER'S RIGHTS AND OBLIGATIONS HEREUNDER.
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 9.1(A) 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 AND AGENT 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
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ASSIGNEE LENDER SHALL HAVE COMMITMENTS IN AN AMOUNT AT LEAST EQUAL TO $5,000,000
AND THE ASSIGNING LENDER SHALL HAVE RETAINED COMMITMENTS IN AN AMOUNT AT LEAST
EQUAL TO $5,000,000; (IV) INCLUDE A PAYMENT TO AGENT OF AN ASSIGNMENT FEE OF
$3,500; AND (V) SO LONG AS NO EVENT OF DEFAULT SHALL HAVE OCCURRED OR BE
CONTINUING, REQUIRE THE CONSENT OF BORROWER (WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED WITH RESPECT TO A QUALIFIED ASSIGNEE).
IN THE
CASE OF AN ASSIGNMENT BY A LENDER UNDER THIS SECTION 9.1, 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 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 SHALL BE LIMITED TO SUCH LENDER'S
PRO RATA SHARE OF THE APPLICABLE COMMITMENT.
IN THE EVENT AGENT OR ANY LENDER
ASSIGNS OR OTHERWISE TRANSFERS ALL OR ANY PART OF THE OBLIGATIONS, AGENT OR ANY
SUCH LENDER SHALL SO NOTIFY BORROWER AND BORROWER SHALL, UPON THE REQUEST OF
AGENT OR SUCH LENDER, EXECUTE NEW NOTES IN EXCHANGE FOR THE NOTES, IF ANY, BEING
ASSIGNED.
NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION 9.1(A), ANY
LENDER MAY AT