TO DIRECT THE
APPLICATION OF ANY AND ALL PAYMENTS AT ANY TIME OR TIMES THEREAFTER RECEIVED BY
AGENT FROM OR ON BEHALF OF BORROWERS, AND AGENT SHALL HAVE THE CONTINUING AND
EXCLUSIVE RIGHT TO APPLY AND TO REAPPLY ANY AND ALL PAYMENTS RECEIVED AT ANY
TIME OR TIMES AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT
(INCLUDING, WITHOUT LIMITATION, SECTION 1.1 AND SECTION 1.5 HEREOF), ALL
PAYMENTS (INCLUDING THE PROCEEDS OF ANY ASSET DISPOSITION OR OTHER SALE OF, OR
OTHER REALIZATION UPON, ALL OR ANY PART OF THE COLLATERAL) RECEIVED AFTER
ACCELERATION OF THE OBLIGATIONS SHALL BE APPLIED AS FOLLOWS: FIRST, TO ALL COSTS
AND EXPENSES INCURRED BY OR OWING TO AGENT AND ANY LENDER WITH RESPECT TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE COLLATERAL; SECOND, TO ACCRUED AND
UNPAID INTEREST AND FEES WITH RESPECT TO THE OBLIGATIONS (INCLUDING ANY INTEREST
WHICH BUT FOR THE PROVISIONS OF THE BANKRUPTCY CODE, WOULD HAVE ACCRUED ON SUCH
AMOUNTS); THIRD, TO THE PRINCIPAL AMOUNT OF THE OBLIGATIONS OUTSTANDING (OTHER
THAN OBLIGATIONS OWED TO ANY LENDER UNDER AN INTEREST RATE AGREEMENT) AND TO
CASH COLLATERALIZE OUTSTANDING LETTERS OF CREDIT (PRO RATA AMONG ALL SUCH
OBLIGATIONS (BASED UPON THE PRINCIPAL AMOUNT THEREOF OR THE OUTSTANDING FACE
AMOUNT OF SUCH LETTERS OF CREDIT, AS APPLICABLE);
62
AND FOURTH TO ANY OTHER OBLIGATIONS OF BORROWERS OWING TO AGENT OR ANY LENDER
UNDER THE LOAN DOCUMENTS OR ANY INTEREST RATE AGREEMENT.
ANY BALANCE REMAINING
SHALL BE DELIVERED TO BORROWERS OR TO WHOMEVER MAY BE LAWFULLY ENTITLED TO
RECEIVE SUCH BALANCE OR AS A COURT OF COMPETENT JURISDICTION MAY DIRECT.
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) EXCEPT WITH RESPECT TO ANY ASSIGNMENT BY A
LENDER TO AN AFFILIATE OF SUCH LENDER, 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