COMMITMENT TRANSFER SUPPLEMENT"), EXECUTED BY ANY INTERMEDIATE PURCHASER, THE
PURCHASING CLO, THE TRANSFEROR LENDER, AND AGENT AS APPROPRIATE AND DELIVERED TO
AGENT FOR RECORDING;
PROVIDED, HOWEVER, THAT IF ANY EVENT OF DEFAULT HAS
OCCURRED AND IS CONTINUING, NO CONSENT BY BORROWING AGENT OR BORROWERS SHALL BE
REQUIRED FOR SUCH SALE, ASSIGNMENT OR TRANSFER. UPON SUCH EXECUTION AND
DELIVERY, FROM AND AFTER THE TRANSFER EFFECTIVE DATE DETERMINED PURSUANT TO SUCH
MODIFIED COMMITMENT TRANSFER SUPPLEMENT, (I) PURCHASING CLO THEREUNDER SHALL BE
A PARTY HERETO AND, TO THE EXTENT PROVIDED IN SUCH MODIFIED COMMITMENT TRANSFER
SUPPLEMENT, HAVE THE RIGHTS AND OBLIGATIONS OF A LENDER THEREUNDER AND (II) THE
TRANSFEROR LENDER THEREUNDER SHALL, TO THE EXTENT PROVIDED IN SUCH MODIFIED
COMMITMENT TRANSFER SUPPLEMENT, BE RELEASED FROM ITS OBLIGATIONS UNDER THIS
AGREEMENT, THE MODIFIED COMMITMENT TRANSFER SUPPLEMENT CREATING A NOVATION FOR
THAT PURPOSE.
SUCH MODIFIED COMMITMENT TRANSFER SUPPLEMENT SHALL BE DEEMED TO
AMEND THIS AGREEMENT TO THE EXTENT, AND ONLY TO THE EXTENT, NECESSARY TO REFLECT
THE ADDITION OF SUCH PURCHASING CLO.
EACH BORROWER HEREBY CONSENTS TO THE
ADDITION OF SUCH PURCHASING CLO.
BORROWERS SHALL EXECUTE AND DELIVER SUCH
FURTHER DOCUMENTS AND DO SUCH FURTHER ACTS AND THINGS IN ORDER TO EFFECTUATE THE
FOREGOING.
(E)
AGENT SHALL MAINTAIN AT ITS ADDRESS A COPY OF EACH COMMITMENT TRANSFER
SUPPLEMENT AND MODIFIED COMMITMENT TRANSFER SUPPLEMENT DELIVERED TO IT AND A
REGISTER (THE "REGISTER") FOR THE RECORDATION OF THE NAMES AND ADDRESSES OF EACH
LENDER AND THE OUTSTANDING PRINCIPAL, ACCRUED AND UNPAID INTEREST AND OTHER FEES
DUE HEREUNDER.
THE ENTRIES IN THE REGISTER SHALL BE CONCLUSIVE, IN THE ABSENCE
OF MANIFEST ERROR, AND EACH BORROWER, AGENT AND LENDERS MAY TREAT EACH PERSON
WHOSE NAME IS RECORDED IN THE REGISTER AS THE OWNER OF THE ADVANCE RECORDED
THEREIN FOR THE PURPOSES OF THIS AGREEMENT.
THE REGISTER SHALL BE AVAILABLE FOR
INSPECTION BY BORROWERS OR ANY LENDER AT ANY REASONABLE TIME AND FROM TIME TO
TIME UPON REASONABLE PRIOR NOTICE.
AGENT SHALL RECEIVE A FEE IN THE AMOUNT OF
$5,000 PAYABLE BY THE APPLICABLE PURCHASING LENDER AND/OR PURCHASING CLO UPON
THE EFFECTIVE DATE OF EACH TRANSFER OR ASSIGNMENT (OTHER THAN TO AN INTERMEDIATE
PURCHASER) TO SUCH PURCHASING LENDER AND/OR PURCHASING CLO.
(F)
EACH BORROWER AUTHORIZES EACH LENDER TO DISCLOSE TO ANY TRANSFEREE AND
ANY PROSPECTIVE TRANSFEREE ANY AND ALL FINANCIAL INFORMATION IN SUCH LENDER'S
POSSESSION CONCERNING SUCH BORROWER WHICH HAS BEEN DELIVERED TO SUCH LENDER BY
OR ON BEHALF OF SUCH BORROWER PURSUANT TO THIS AGREEMENT OR IN CONNECTION WITH
SUCH LENDER'S CREDIT EVALUATION OF SUCH BORROWER.
16.4.
Application of Payments.
Agent shall have the continuing and exclusive
right to apply or reverse and re-apply any payment and any and all proceeds of
Collateral to any portion
101
of the Obligations.
To the extent that any Borrower makes a payment or Agent or
any Lender receives any payment or proceeds of the Collateral for any Borrower's
benefit, which are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, debtor in