and warranty by Borrower that the conditions
in this Section 7.2
have been satisfied and (ii) a reaffirmation by Borrower of
the granting and continuance of Agent's Liens, on behalf of itself and Lenders,
pursuant to the Collateral Documents.
52
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 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, CONDITIONED 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 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 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)
REQUIRE A PAYMENT TO AGENT OF AN 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, CONDITIONED 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.
NOTWITHSTANDING THE ABOVE,
AGENT MAY IN ITS SOLE AND ABSOLUTE DISCRETION PERMIT ANY ASSIGNMENT BY A LENDER
TO A PERSON OR PERSONS THAT ARE NOT QUALIFIED ASSIGNEES; PROVIDED, THAT SO LONG
AS NO EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, SUCH ASSIGNMENT SHALL
ALSO REQUIRE BORROWER'S CONSENT, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED.
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.
EACH QUALIFIED ASSIGNEE OR OTHER ASSIGNEE SHALL COMPLY WITH
SECTION 1.12(D), AS A LENDER.
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