WILL WITHOUT THE EXPRESS
CONSENT OF THE ADMINISTRATIVE AGENT (A) MENTION IN ANY PLEADING OR ARGUMENT
BEFORE THE BANKRUPTCY COURT IN SUPPORT OF, OR IN ANY WAY RELATING TO, A POSITION
THAT BANKRUPTCY COURT AUTHORIZATION SHOULD BE GRANTED ON THE GROUND THAT SUCH
AUTHORIZATION IS PERMITTED BY THIS AGREEMENT (UNLESS A PERSON OPPOSING ANY SUCH
PLEADING OR ARGUMENT RELIES ON THIS AGREEMENT TO ASSERT OR QUESTION THE
PROPRIETY OF SUCH) OR (B) IN ANY WAY ATTEMPT TO SUPPORT A POSITION BEFORE THE
BANKRUPTCY COURT BASED ON THE PROVISIONS OF THIS AGREEMENT. THE FACT THAT THE
ADMINISTRATIVE AGENT OR ANY LENDER MAY BE PARTY TO THE PREPETITION CREDIT
FACILITY SHALL IN NO WAY PREJUDICE ITS RIGHTS UNDER, OR IN
106
respect of, either the Prepetition Credit Facility or hereunder, and the
Administrative Agent or any such Lender shall be free to bring, oppose or
support any matter before the Bankruptcy Court no matter how treated in this
Agreement.
13.14.
JUDGMENT.
(A)
IF FOR THE PURPOSE OF OBTAINING JUDGMENT IN ANY
COURT IT IS NECESSARY TO CONVERT A SUM DUE HEREUNDER IN ONE CURRENCY INTO
ANOTHER CURRENCY, THE PARTIES HERETO AGREE, TO THE FULLEST EXTENT THAT THEY MAY
EFFECTIVELY DO SO, THAT THE RATE OF EXCHANGE USED SHALL BE THAT AT WHICH IN
ACCORDANCE WITH NORMAL BANKING PROCEDURES THE ADMINISTRATIVE AGENT COULD
PURCHASE THE FIRST CURRENCY WITH SUCH OTHER CURRENCY ON THE BUSINESS DAY
PRECEDING THE DAY ON WHICH FINAL JUDGMENT IS GIVEN.
(B)
THE OBLIGATIONS OF THE BORROWER IN RESPECT OF THIS AGREEMENT AND
ANY NOTE DUE TO ANY PARTY HERETO OR ANY HOLDER OF ANY BOND SHALL,
NOTWITHSTANDING ANY JUDGMENT IN A CURRENCY (THE "JUDGMENT CURRENCY") OTHER THAN
THE CURRENCY IN WHICH THE SUM ORIGINALLY DUE TO SUCH PARTY OR SUCH HOLDER IS
DENOMINATED (THE "ORIGINAL CURRENCY"), BE DISCHARGED ONLY TO THE EXTENT THAT ON
THE BUSINESS DAY FOLLOWING RECEIPT BY SUCH PARTY OR SUCH HOLDER (AS THE CASE MAY
BE) OF ANY SUM ADJUDGED TO BE SO DUE IN THE JUDGMENT CURRENCY SUCH PARTY OR SUCH
HOLDER (AS THE CASE MAY BE) MAY IN ACCORDANCE WITH NORMAL BANKING PROCEDURES
PURCHASE THE ORIGINAL CURRENCY WITH THE JUDGMENT CURRENCY; IF THE AMOUNT OF THE
ORIGINAL CURRENCY SO PURCHASED IS LESS THAN THE SUM ORIGINALLY DUE TO SUCH PARTY
OR SUCH HOLDER (AS THE CASE MAY BE) IN THE ORIGINAL CURRENCY, THE BORROWER
AGREES, AS A SEPARATE OBLIGATION AND NOTWITHSTANDING ANY SUCH JUDGMENT, TO
INDEMNIFY SUCH PARTY OR SUCH HOLDER (AS THE CASE MAY BE) AGAINST SUCH LOSS, AND
IF THE AMOUNT OF THE ORIGINAL CURRENCY SO PURCHASED EXCEEDS THE SUM ORIGINALLY
DUE TO ANY PARTY TO THIS AGREEMENT OR ANY HOLDER OF NOTES (AS THE CASE MAY BE),
SUCH PARTY OR SUCH HOLDER (AS THE CASE MAY BE),
AGREES TO REMIT TO THE BORROWER, SUCH EXCESS.
THIS COVENANT SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT AND PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS
PAYABLE HEREUNDER.
13.15.
ACKNOWLEDGEMENTS.
THE BORROWER HEREBY ACKNOWLEDGES THAT:
(A)
IT HAS BEEN ADVISED BY COUNSEL