BASE RATE OR OTHER
ANALOGOUS RATE OF THE NEW AGENT.
10.13
DELEGATION TO AFFILIATES.
THE BORROWER AND THE
LENDERS AGREE THAT THE AGENT MAY DELEGATE ANY OF ITS DUTIES UNDER THIS AGREEMENT
TO ANY OF ITS AFFILIATES.
ANY SUCH AFFILIATE (AND SUCH AFFILIATE'S DIRECTORS,
OFFICERS, AGENTS AND EMPLOYEES) WHICH PERFORMS DUTIES IN CONNECTION WITH THIS
AGREEMENT SHALL BE ENTITLED TO THE SAME BENEFITS OF THE INDEMNIFICATION, WAIVER
AND OTHER PROTECTIVE PROVISIONS TO WHICH THE AGENT IS ENTITLED UNDER ARTICLES IX
AND X.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1
SETOFF.
IN ADDITION TO, AND WITHOUT LIMITATION
OF, ANY RIGHTS OF THE LENDERS UNDER APPLICABLE LAW, IF THE BORROWER BECOMES
INSOLVENT, HOWEVER EVIDENCED, OR ANY DEFAULT OCCURS, ANY AND ALL DEPOSITS
(INCLUDING ALL ACCOUNT BALANCES, WHETHER PROVISIONAL OR FINAL AND WHETHER OR NOT
COLLECTED OR AVAILABLE) AND ANY OTHER INDEBTEDNESS AT ANY TIME HELD OR OWING BY
ANY LENDER OR ANY AFFILIATE OF ANY LENDER TO OR FOR THE CREDIT OR ACCOUNT OF THE
BORROWER MAY BE OFFSET AND APPLIED TOWARD THE PAYMENT OF THE OBLIGATIONS OWING
TO SUCH LENDER, WHETHER OR NOT THE OBLIGATIONS, OR ANY PART THEREOF, SHALL THEN
BE DUE.
11.2
RATABLE PAYMENTS.
IF ANY LENDER, WHETHER BY
SETOFF OR OTHERWISE, HAS PAYMENT MADE TO IT UPON ITS LOANS (OTHER THAN PAYMENTS
RECEIVED PURSUANT TO SECTION 3.1, 3.2, 3.4 OR 3.5) IN A GREATER PROPORTION THAN
THAT RECEIVED BY ANY OTHER LENDER, SUCH LENDER AGREES, PROMPTLY UPON DEMAND, TO
PURCHASE A PORTION OF THE LOANS HELD BY THE OTHER LENDERS SO THAT AFTER SUCH
PURCHASE EACH LENDER WILL HOLD ITS RATABLE PROPORTION OF LOANS.
IF ANY LENDER,
WHETHER IN CONNECTION WITH SETOFF OR AMOUNTS WHICH MIGHT BE SUBJECT TO SETOFF OR
OTHERWISE, RECEIVES COLLATERAL OR OTHER PROTECTION FOR ITS OBLIGATIONS OR SUCH
AMOUNTS WHICH MAY BE SUBJECT TO SETOFF, SUCH LENDER AGREES, PROMPTLY UPON
DEMAND, TO TAKE SUCH ACTION NECESSARY SUCH THAT ALL LENDERS SHARE IN THE
BENEFITS OF SUCH COLLATERAL RATABLY IN PROPORTION TO THEIR LOANS.
IN CASE ANY
SUCH PAYMENT IS DISTURBED BY LEGAL PROCESS, OR OTHERWISE, APPROPRIATE FURTHER
ADJUSTMENTS SHALL BE MADE.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1
SUCCESSORS AND ASSIGNS.
THE TERMS AND PROVISIONS
OF THE LOAN DOCUMENTS SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE
BORROWER AND THE LENDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS PERMITTED
HEREBY, EXCEPT THAT (I) THE BORROWER SHALL NOT HAVE THE RIGHT TO ASSIGN ITS
RIGHTS OR OBLIGATIONS UNDER THE LOAN DOCUMENTS WITHOUT THE PRIOR WRITTEN CONSENT
OF EACH LENDER, (II) ANY ASSIGNMENT BY ANY LENDER MUST BE MADE IN COMPLIANCE
WITH SECTION 12.3, AND (III) ANY TRANSFER BY PARTICIPATION MUST BE MADE IN
COMPLIANCE WITH SECTION 12.2.
ANY ATTEMPTED ASSIGNMENT OR TRANSFER BY ANY PARTY
NOT MADE IN COMPLIANCE WITH THIS SECTION 12.1 SHALL BE NULL AND VOID, UNLESS
SUCH ATTEMPTED ASSIGNMENT OR TRANSFER IS TREATED AS A PARTICIPATION
48
IN ACCORDANCE WITH SECTION 12.3.2.
THE PARTIES TO THIS AGREEMENT ACKNOWLEDGE
THAT CLAUSE (II) OF THIS SECTION 12.1 RELATES ONLY TO ABSOLUTE