UNLESS
SO DIRECTED BY ADMINISTRATIVE BORROWER, OR UNLESS A DEFAULT OR AN EVENT OF
DEFAULT SHALL EXIST OR HAVE OCCURRED AND BE CONTINUING, LENDER SHALL NOT APPLY
ANY PAYMENTS WHICH IT RECEIVES TO ANY EURODOLLAR RATE LOANS, EXCEPT (A) ON THE
EXPIRATION DATE OF THE INTEREST PERIOD APPLICABLE TO ANY SUCH EURODOLLAR RATE
LOANS OR (B) IN THE EVENT THAT THERE ARE NO OUTSTANDING PRIME RATE LOANS AND
(II) TO THE EXTENT BORROWER USES ANY PROCEEDS OF THE LOANS OR LETTERS OF CREDIT
TO ACQUIRE RIGHTS IN OR THE USE OF ANY COLLATERAL OR TO REPAY ANY INDEBTEDNESS
USED TO ACQUIRE RIGHTS IN OR THE USE OF ANY COLLATERAL, PAYMENTS IN RESPECT OF
THE OBLIGATIONS SHALL BE DEEMED APPLIED FIRST TO THE OBLIGATIONS ARISING FROM
LOANS AND LETTERS OF CREDIT THAT WERE NOT USED FOR SUCH PURPOSES AND SECOND TO
THE OBLIGATIONS ARISING FROM LOANS AND LETTERS OF CREDIT THE PROCEEDS OF WHICH
WERE USED TO ACQUIRE RIGHTS IN OR THE USE OF ANY COLLATERAL IN THE CHRONOLOGICAL
ORDER IN WHICH BORROWER ACQUIRED SUCH RIGHTS IN OR THE USE OF SUCH COLLATERAL.
(B)
AT LENDER'S OPTION, ALL PRINCIPAL, INTEREST, FEES, COSTS, EXPENSES
AND OTHER CHARGES PROVIDED FOR IN THIS AGREEMENT OR THE OTHER FINANCING
AGREEMENTS MAY BE CHARGED DIRECTLY TO THE LOAN ACCOUNT(S) OF ANY BORROWER
MAINTAINED BY LENDER.
IF AFTER RECEIPT OF ANY PAYMENT OF, OR PROCEEDS OF
COLLATERAL APPLIED TO THE PAYMENT OF, ANY OF THE OBLIGATIONS, LENDER IS REQUIRED
TO SURRENDER OR RETURN SUCH PAYMENT OR PROCEEDS TO ANY PERSON FOR ANY REASON,
THEN THE OBLIGATIONS INTENDED TO BE SATISFIED BY SUCH PAYMENT OR PROCEEDS SHALL
BE REINSTATED AND CONTINUE AND THIS AGREEMENT SHALL CONTINUE IN FULL FORCE AND
EFFECT AS IF SUCH PAYMENT OR PROCEEDS HAD NOT BEEN RECEIVED BY LENDER.
BORROWERS AND GUARANTORS SHALL BE LIABLE TO PAY TO LENDER, AND DO HEREBY
INDEMNIFY AND HOLD LENDER HARMLESS FOR THE AMOUNT OF ANY PAYMENTS OR PROCEEDS
SURRENDERED OR RETURNED.
THIS SECTION 6.4(B) SHALL REMAIN EFFECTIVE
NOTWITHSTANDING ANY CONTRARY ACTION WHICH MAY BE TAKEN BY LENDER IN RELIANCE
UPON SUCH PAYMENT OR PROCEEDS.
THIS SECTION 6.4 SHALL SURVIVE THE PAYMENT OF
THE OBLIGATIONS AND THE TERMINATION OF THIS AGREEMENT.
6.5
Taxes.
(A)
ANY AND ALL PAYMENTS BY OR ON ACCOUNT OF ANY OF THE OBLIGATIONS
SHALL BE MADE FREE AND CLEAR OF AND WITHOUT DEDUCTION OR WITHHOLDING FOR OR ON
ACCOUNT OF, ANY SETOFF,
52
COUNTERCLAIM, DEFENSE, DUTIES, TAXES, LEVIES, IMPOSTS, FEES, DEDUCTIONS,
CHARGES, WITHHOLDINGS, LIABILITIES, RESTRICTIONS OR CONDITIONS OF ANY KIND,
EXCLUDING (I) TAXES MEASURED BY LENDER'S NET INCOME, AND FRANCHISE TAXES IMPOSED
ON LENDER, BY THE JURISDICTION (OR ANY POLITICAL SUBDIVISION THEREOF) UNDER THE
LAWS OF WHICH LENDER IS ORGANIZED AND (II) ANY UNITED STATES WITHHOLDING TAXES
PAYABLE WITH RESPECT TO PAYMENTS UNDER THE FINANCING AGREEMENTS UNDER LAWS
(INCLUDING ANY STATUTE, TREATY OR REGULATION) IN EFFECT ON THE DATE HEREOF
APPLICABLE TO LENDER, BUT NOT EXCLUDING ANY UNITED STATES WITHHOLDING TAXES
PAYABLE AS A RESULT OF ANY CHANGE IN SUCH LAWS OCCURRING AFTER