LENDER AT
ANY REASONABLE TIME AND FROM TIME TO TIME UPON REASONABLE PRIOR NOTICE.
AGENT
SHALL RECEIVE A FEE IN THE AMOUNT OF $3,500 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
95
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 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 POSSESSION, RECEIVER, CUSTODIAN
OR ANY OTHER PARTY UNDER ANY BANKRUPTCY LAW, COMMON LAW OR EQUITABLE CAUSE,
THEN, TO SUCH EXTENT, THE OBLIGATIONS OR PART THEREOF INTENDED TO BE SATISFIED
SHALL BE REVIVED AND CONTINUE AS IF SUCH PAYMENT OR PROCEEDS HAD NOT BEEN
RECEIVED BY AGENT OR SUCH LENDER.
16.5.
INDEMNITY.
EACH BORROWER SHALL INDEMNIFY AGENT,
EACH LENDER AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AFFILIATES,
ATTORNEYS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER (INCLUDING FEES AND
DISBURSEMENTS OF COUNSEL) WHICH MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED
AGAINST AGENT OR ANY LENDER IN ANY CLAIM, LITIGATION, PROCEEDING OR
INVESTIGATION INSTITUTED OR CONDUCTED BY ANY GOVERNMENTAL BODY OR
INSTRUMENTALITY OR ANY OTHER PERSON WITH RESPECT TO ANY ASPECT OF, OR ANY
TRANSACTION CONTEMPLATED BY, OR REFERRED TO IN, OR ANY MATTER RELATED TO, THIS
AGREEMENT OR THE OTHER DOCUMENTS, WHETHER OR NOT AGENT OR ANY LENDER IS A PARTY
THERETO, EXCEPT TO THE EXTENT THAT ANY OF THE FOREGOING ARISES OUT OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY BEING INDEMNIFIED (AS DETERMINED
BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NON-APPEALABLE JUDGMENT).
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THIS INDEMNITY SHALL EXTEND TO
ANY LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER
(INCLUDING FEES AND DISBURSEMENTS OF COUNSEL) ASSERTED AGAINST OR INCURRED BY
ANY OF THE INDEMNITEES DESCRIBED ABOVE IN THIS SECTION 16.5 BY ANY PERSON UNDER
ANY ENVIRONMENTAL LAWS OR SIMILAR LAWS BY REASON OF ANY BORROWER'S OR ANY OTHER
PERSON'S FAILURE TO COMPLY WITH LAWS APPLICABLE TO SOLID OR HAZARDOUS WASTE
MATERIALS, INCLUDING HAZARDOUS SUBSTANCES AND HAZARDOUS WASTE, OR OTHER TOXIC
SUBSTANCES.
ADDITIONALLY, IF ANY TAXES (EXCLUDING