WITH ALL THE
ESTATES, PROPERTIES, RIGHTS, POWERS, DUTIES AND TRUSTS OF AGENT HEREUNDER AND
WITH LIKE EFFECT AS IF ORIGINALLY NAMED AS "AGENT" HEREIN AND THEREIN, AND UPON
REQUEST, THE PREDECESSOR AGENT SHALL TAKE ALL ACTIONS AND EXECUTE ALL DOCUMENTS
NECESSARY TO GIVE EFFECT TO THE FOREGOING.
IN THE EVENT AGENT'S RESIGNATION
BECOMES EFFECTIVE AT A TIME WHEN NO SUCCESSOR HAS BEEN NAMED, ALL NOTICES, OTHER
COMMUNICATIONS AND PAYMENTS HEREUNDER REQUIRED
58
TO BE GIVEN BY OR TO AGENT SHALL BE SUFFICIENTLY GIVEN IF GIVEN BY THE MAJORITY
LENDERS (OR ALL LENDERS, IF THE CONSENT OF ALL LENDERS IS REQUIRED THEREFOR
HEREUNDER) OR TO EACH LENDER, AS THE CASE MAY BE.
IN SUCH EVENT, ALL POWERS
SPECIFICALLY DELEGATED TO AGENT MAY BE EXERCISED BY THE MAJORITY LENDERS AND THE
MAJORITY LENDERS SHALL BE ENTITLED TO ALL RIGHTS OF AGENT HEREUNDER.
11.10
REIMBURSEMENT.
WITHOUT LIMITING THE PROVISIONS OF SECTION 11.6,
LENDERS AND AGENT HEREBY AGREE THAT AGENT SHALL NOT BE OBLIGATED TO MAKE
AVAILABLE TO ANY PERSON ANY SUM WHICH AGENT IS EXPECTING TO RECEIVE FOR THE
ACCOUNT OF THAT PERSON UNTIL AGENT HAS DETERMINED THAT IT HAS RECEIVED THAT
SUM.
AGENT MAY, HOWEVER, DISBURSE FUNDS PRIOR TO DETERMINING THAT THE SUMS
WHICH AGENT EXPECTS TO RECEIVE HAVE BEEN FINALLY AND UNCONDITIONALLY PAID TO
AGENT, IF AGENT WISHES TO DO SO.
IF AND TO THE EXTENT THAT AGENT DOES DISBURSE
FUNDS AND IT LATER BECOMES APPARENT THAT AGENT DID NOT THEN RECEIVE A PAYMENT IN
AN AMOUNT EQUAL TO THE SUM PAID OUT, THEN ANY PERSON TO WHOM AGENT MADE THE
FUNDS AVAILABLE SHALL, ON DEMAND FROM AGENT:
(A)
REFUND AGENT THE SUM PAID TO THAT PERSON; AND
(B)
REIMBURSE AGENT FOR THE ADDITIONAL AMOUNT CERTIFIED BY AGENT AS
BEING NECESSARY TO INDEMNIFY AGENT AGAINST ANY FUNDING OR OTHER COST, LOSS,
EXPENSE OR LIABILITY SUSTAINED OR INCURRED BY AGENT AS A RESULT OF PAYING OUT
THE SUMS BEFORE RECEIVING IT; PROVIDED, HOWEVER, THAT IF SUCH FUNDS WERE MADE
AVAILABLE TO ANY LENDER, SUCH ADDITIONAL AMOUNT SHALL BE LIMITED TO INTEREST ON
THE SUM TO BE REPAID, FOR EACH DAY FROM THE DATE SUCH AMOUNT WAS DISBURSED UNTIL
THE DATE REPAID TO AGENT, AT (FOR THE FIRST THREE DAYS) THE CUSTOMARY RATE SET
BY AGENT FOR CORRECTION OF ERRORS AMONG BANKS, AND THEREAFTER AT THE BASE RATE
(OR, IF GREATER AND IN RESPECT OF A LOAN, THE RATE FROM TIME TO TIME PREVAILING
ON SUCH LOAN).
SECTION 12.
MISCELLANEOUS.
12.1
CALCULATIONS AND FINANCIAL DATA.
CALCULATIONS HEREUNDER
(INCLUDING, WITHOUT LIMITATION, CALCULATIONS USED IN DETERMINING, OR IN ANY
CERTIFICATE OF ANY LOAN PARTY DELIVERED REFLECTING COMPLIANCE BY ANY LOAN PARTY
WITH THE PROVISIONS OF THIS AGREEMENT) SHALL BE MADE AND FINANCIAL DATA REQUIRED
HEREBY SHALL BE PREPARED BOTH AS TO CLASSIFICATION OF ITEMS AND AS TO AMOUNT IN
ACCORDANCE WITH GAAP, CONSISTENT WITH THE AUDITED FINANCIAL STATEMENTS DESCRIBED
IN SECTION 10.16; PROVIDED THAT FOR PURPOSES OF SECTION 8.18 NO EFFECT SHALL BE
GIVEN TO ANY CHANGE IN GAAP FROM THOSE IN EFFECT ON