MAKE ANY ADVANCE IS NOT AND WILL NOT BE
PLAN ASSETS AS DEFINED UNDER THE REGULATIONS OF THE DEPARTMENT OF LABOR OF ANY
PLAN SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR (B) THE
ASSIGNMENT OR ADVANCE IS NOT AND WILL NOT BE A NON-EXEMPT PROHIBITED TRANSACTION
AS DEFINED IN SECTION 406 OF ERISA; (VII) SUCH ASSIGNEE APPOINTS AND AUTHORIZES
THE ADMINISTRATIVE AGENT TO TAKE SUCH ACTION AS AGENT ON ITS BEHALF AND TO
EXERCISE SUCH POWERS AND DISCRETION UNDER THIS AGREEMENT AS ARE DELEGATED TO THE
ADMINISTRATIVE AGENT BY THE TERMS HEREOF, TOGETHER WITH SUCH POWERS AND
DISCRETION AS ARE REASONABLY INCIDENTAL THERETO; AND (VIII) SUCH ASSIGNEE AGREES
THAT IT WILL PERFORM IN ACCORDANCE WITH THEIR TERMS ALL OF THE OBLIGATIONS THAT
BY THE TERMS OF THIS AGREEMENT ARE REQUIRED TO BE PERFORMED BY IT AS A LENDER.
(C)
ADMINISTRATIVE AGENT'S ACCEPTANCE.
UPON ITS RECEIPT OF AN ASSIGNMENT AND ACCEPTANCE EXECUTED BY AN ASSIGNING LENDER
AND AN ASSIGNEE REPRESENTING THAT IT IS AN ELIGIBLE ASSIGNEE, TOGETHER WITH ANY
NOTE OR NOTES SUBJECT TO SUCH ASSIGNMENT, THE ADMINISTRATIVE AGENT SHALL, IF
SUCH ASSIGNMENT AND ACCEPTANCE HAS BEEN COMPLETED AND IS IN SUBSTANTIALLY THE
FORM OF EXHIBIT B HERETO, (I) ACCEPT SUCH ASSIGNMENT AND ACCEPTANCE, (II) RECORD
THE INFORMATION CONTAINED THEREIN IN THE REGISTER AND (III) GIVE PROMPT NOTICE
THEREOF TO THE BORROWER.
(D)
REGISTER.
THE ADMINISTRATIVE AGENT
SHALL MAINTAIN AT ITS ADDRESS REFERRED TO IN SECTION 8.2 A COPY OF EACH
ASSIGNMENT AND ACCEPTANCE DELIVERED TO AND ACCEPTED BY IT AND A REGISTER FOR THE
RECORDATION OF THE NAMES AND ADDRESSES OF THE LENDERS AND THE COMMITMENT OF, AND
PRINCIPAL AMOUNT OF THE ADVANCES OWING TO, EACH LENDER FROM TIME TO TIME (THE
"REGISTER").
THE ENTRIES IN THE REGISTER SHALL BE CONCLUSIVE AND BINDING FOR
ALL PURPOSES, ABSENT MANIFEST ERROR, AND THE BORROWER, THE AGENTS AND THE
LENDERS MAY TREAT EACH PERSON WHOSE NAME IS RECORDED IN THE REGISTER AS A LENDER
HEREUNDER FOR ALL PURPOSES OF THIS AGREEMENT.
THE REGISTER SHALL BE AVAILABLE
FOR INSPECTION BY THE BORROWER OR ANY LENDER AT ANY REASONABLE TIME AND FROM
TIME TO TIME UPON REASONABLE PRIOR NOTICE.
37
(E)
SALE OF PARTICIPATION.
EACH LENDER
MAY SELL PARTICIPATIONS TO ONE OR MORE ELIGIBLE ASSIGNEES IN OR TO ALL OR A
PORTION OF ITS RIGHTS AND OBLIGATIONS UNDER THE LOAN DOCUMENTS (INCLUDING,
WITHOUT LIMITATION, ALL OR A PORTION OF ITS COMMITMENT, THE ADVANCES OWING TO IT
AND ANY NOTE OR NOTES HELD BY IT), SUBJECT TO THE FOLLOWING:
(I)
SUCH LENDER'S OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING,
WITHOUT LIMITATION, ITS COMMITMENT TO THE BORROWER HEREUNDER) SHALL REMAIN
UNCHANGED,
(II)
SUCH LENDER SHALL REMAIN SOLELY RESPONSIBLE TO THE OTHER PARTIES
HERETO FOR THE PERFORMANCE OF SUCH OBLIGATIONS,
(III)
THE BORROWER, THE AGENTS AND THE OTHER LENDERS SHALL CONTINUE TO
DEAL SOLELY AND DIRECTLY WITH SUCH LENDER IN CONNECTION WITH SUCH LENDER'S
RIGHTS AND OBLIGATIONS UNDER THE LOAN DOCUMENTS, AND
(IV)
NO PARTICIPANT UNDER ANY SUCH PARTICIPATION SHALL HAVE ANY RIGHT