Upon each
purchase of a Transferred Loan pursuant to this Section 7.7, the Borrower shall
automatically and without further action be deemed to transfer, assign and
set-over to the purchaser thereof all the right, title and interest of the
Borrower in, to and under such Transferred Loan and all monies due or to become
due with respect thereto, all proceeds thereof and all rights to security for
any such Transferred Loan, and all proceeds and products of the foregoing, free
and clear of any Lien created pursuant to this Agreement, all of the Borrower's
right, title and interest in such Transferred Loan, including any related
Supplemental Interests. Each Lender shall receive five (5) Business Days' notice
of any repurchase that results in a prepayment of all or a portion of any
Advance.
(d) The Borrower shall, at the sole expense of the party purchasing any
Transferred Loan, execute such documents
3
and instruments of transfer as may be prepared by such party and take such other
actions as shall reasonably be requested by such party to effect the transfer of
the related Transferred Loan pursuant to this Section 7.7.
SECTION 2. REPRESENTATIONS AND WARRANTIES. THE BORROWER HEREBY REPRESENTS AND
WARRANTS TO EACH OF THE OTHER PARTIES HERETO, THAT:
(A)
THIS AMENDMENT CONSTITUTES ITS LEGAL, VALID AND BINDING
OBLIGATION, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS; AND
(B)
ON THE DATE HEREOF, BEFORE AND AFTER GIVING EFFECT TO THIS
AMENDMENT, OTHER THAN AS AMENDED OR WAIVED PURSUANT TO THIS AMENDMENT, NO EARLY
TERMINATION EVENT OR UNMATURED TERMINATION EVENT HAS OCCURRED AND IS CONTINUING.
SECTION 3. CONDITIONS.
(A)
THIS AMENDMENT SHALL BECOME EFFECTIVE ON THE FIRST BUSINESS DAY
(THE "EFFECTIVE DATE") ON WHICH THE ADMINISTRATIVE AGENT OR ITS COUNSEL HAS
RECEIVED COUNTERPART SIGNATURE PAGES OF THIS AMENDMENT, EXECUTED BY EACH OF THE
PARTIES HERETO.
(B)
THE PARTIES HERETO HEREBY AGREE THAT THE AMENDMENTS SET FORTH IN
SECTION 1(V) HERETO SHALL CEASE TO BE EFFECTIVE AND SECTION 7.7 OF THE CREDIT
AGREEMENT SHALL REVERT TO ITS ORIGINAL LANGUAGE IF THE BORROWER DOES NOT CAUSE
ITS COUNSEL TO DELIVER AN UPDATED "TRUE SALE" OPINION (WHICH MAY BE IN THE FORM
OF A "DATE DOWN" LETTER CONFIRMING THAT NOTHING IN THIS AMENDMENT SHALL CHANGE
THE CONCLUSIONS SET FORTH IN THE ORIGINAL "TRUE SALE" OPINION DELIVERED ON THE
CLOSING DATE) TO THE ADMINISTRATIVE AGENT WITHIN THIRTY (30) DAYS OF THE
EFFECTIVE DATE.
SECTION 4. REFERENCE TO AND EFFECT ON THE TRANSACTION DOCUMENTS.
(A)
UPON THE EFFECTIVENESS OF THIS AMENDMENT, (I) EACH REFERENCE IN
THE CREDIT AGREEMENT TO "THIS CREDIT AGREEMENT", "THIS AGREEMENT", "HEREUNDER",
"HEREOF", "HEREIN" OR WORDS OF LIKE IMPORT SHALL MEAN AND BE A REFERENCE TO THE
CREDIT AGREEMENT AS AMENDED OR OTHERWISE MODIFIED HEREBY, AND (II) EACH
REFERENCE TO THE CREDIT AGREEMENT IN ANY OTHER TRANSACTION DOCUMENT OR ANY OTHER
DOCUMENT, INSTRUMENT OR AGREEMENT EXECUTED AND/OR DELIVERED IN CONNECTION
THEREWITH, SHALL MEAN AND BE A REFERENCE TO THE CREDIT AGREEMENT AS AMENDED OR
OTHERWISE MODIFIED HEREBY.
(B)
EXCEPT AS SPECIFICALLY AMENDED, TERMINATED