due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower and each Guarantor.
(B)
IN THE CASE OF THE OCCURRENCE OF AN EVENT OF DEFAULT, THE
ADMINISTRATIVE AGENT AND THE LENDERS WILL HAVE ALL OTHER RIGHTS AND REMEDIES
AVAILABLE AT LAW AND EQUITY.
(C)
ALL PROCEEDS REALIZED FROM THE LIQUIDATION OR OTHER DISPOSITION OF
COLLATERAL OR OTHERWISE RECEIVED AFTER MATURITY OF THE NOTES, WHETHER BY
ACCELERATION OR OTHERWISE, SHALL BE APPLIED:
(I)
FIRST, TO PAYMENT OR REIMBURSEMENT OF THAT PORTION OF THE
INDEBTEDNESS CONSTITUTING FEES, EXPENSES AND INDEMNITIES PAYABLE TO THE
ADMINISTRATIVE AGENT IN ITS CAPACITY AS SUCH;
(II)
SECOND, PRO RATA TO PAYMENT OR REIMBURSEMENT OF THAT PORTION OF
THE INDEBTEDNESS CONSTITUTING FEES, EXPENSES AND INDEMNITIES PAYABLE TO THE
LENDERS;
(III)
THIRD, PRO RATA TO PAYMENT OF ACCRUED INTEREST ON THE LOANS;
(IV)
FOURTH, PRO RATA TO PAYMENT OF PRINCIPAL OUTSTANDING ON THE LOANS
AND INDEBTEDNESS OWED TO ANY SWAP LENDER;
(V)
FIFTH, PRO RATA TO ANY OTHER INDEBTEDNESS;
(VI)
SIXTH, TO SERVE AS CASH COLLATERAL TO BE HELD BY THE
ADMINISTRATIVE AGENT TO SECURE THE LC EXPOSURE; AND
(VII)
SEVENTH, ANY EXCESS, AFTER ALL OF THE INDEBTEDNESS SHALL HAVE BEEN
INDEFEASIBLY PAID IN FULL IN CASH, SHALL BE PAID TO THE BORROWER OR AS OTHERWISE
REQUIRED BY ANY GOVERNMENTAL REQUIREMENT.
ARTICLE XI
THE AGENTS
SECTION 11.01.
APPOINTMENT; POWERS.
EACH OF THE LENDERS AND THE ISSUING
BANK HEREBY IRREVOCABLY APPOINTS THE ADMINISTRATIVE AGENT AS ITS AGENT AND
AUTHORIZES THE ADMINISTRATIVE AGENT TO TAKE SUCH ACTIONS ON ITS BEHALF AND TO
EXERCISE SUCH POWERS AS ARE DELEGATED TO THE ADMINISTRATIVE AGENT BY THE TERMS
HEREOF AND THE OTHER LOAN DOCUMENTS, TOGETHER WITH SUCH ACTIONS AND POWERS AS
ARE REASONABLY INCIDENTAL THERETO.
THE PROVISIONS OF THIS ARTICLE ARE SOLELY
FOR THE BENEFIT OF THE ADMINISTRATIVE AGENT, THE LENDERS AND THE ISSUING BANK,
AND NEITHER THE
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Borrower nor any Subsidiary shall have rights as a third party beneficiary of
any of such provisions.
SECTION 11.02.
DUTIES AND OBLIGATIONS OF ADMINISTRATIVE AGENT.
THE
ADMINISTRATIVE AGENT SHALL NOT HAVE ANY DUTIES OR OBLIGATIONS EXCEPT THOSE
EXPRESSLY SET FORTH IN THE LOAN DOCUMENTS.
WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, (A) THE ADMINISTRATIVE AGENT SHALL NOT BE SUBJECT TO ANY
FIDUCIARY OR OTHER IMPLIED DUTIES, REGARDLESS OF WHETHER A DEFAULT HAS OCCURRED
AND IS CONTINUING (THE USE OF THE TERM "AGENT" HEREIN AND IN THE OTHER LOAN
DOCUMENTS WITH REFERENCE TO THE ADMINISTRATIVE AGENT IS NOT INTENDED TO CONNOTE
ANY FIDUCIARY OR OTHER IMPLIED (OR EXPRESS) OBLIGATIONS ARISING UNDER AGENCY
DOCTRINE OF ANY APPLICABLE LAW; RATHER, SUCH TERM IS USED MERELY AS A MATTER OF
MARKET CUSTOM, AND IS INTENDED TO CREATE OR REFLECT ONLY AN ADMINISTRATIVE
RELATIONSHIP BETWEEN INDEPENDENT CONTRACTING PARTIES), (B) THE ADMINISTRATIVE
AGENT SHALL HAVE NO DUTY TO TAKE ANY DISCRETIONARY ACTION OR EXERCISE ANY
DISCRETIONARY POWERS, EXCEPT AS PROVIDED IN SECTION 11.03, AND (C) EXCEPT AS
EXPRESSLY SET FORTH HEREIN, THE ADMINISTRATIVE AGENT SHALL NOT HAVE ANY