APPLICABLE BANK OBLIGATIONS IN RESPECT OF THE LETTERS OF CREDIT AS THEY BECOME
DUE. ANY AMOUNTS REMAINING IN THE RESERVE ACCOUNT FOLLOWING THE EXPIRATION OR
SATISFACTION IN FULL OF THE BANK OBLIGATIONS IN RESPECT OF THE LETTERS OF CREDIT
FOR WHICH SUCH SUMS WERE HELD IN RESERVE SHALL BE APPLIED AGAINST ANY
OBLIGATIONS REMAINING UNPAID IN ACCORDANCE WITH THIS SECTION 3.2. PRIOR TO THE
APPOINTMENT OF THE DISTRIBUTION AGENT, AS SET FORTH IN SECTION 3.3(A) HEREOF,
EACH RECEIVING LENDER SHALL HOLD ALL SHARED PAYMENTS RECEIVED BY IT IN TRUST FOR
THE BENEFIT OF ALL LENDERS.
For the avoidance of doubt, the parties hereto agree that any payments made by
the Company in respect of the Obligations shall not be subject to sharing
pursuant to this Agreement.
(B)
EACH OBLIGOR AND ADDITIONAL SUBSIDIARY OBLIGOR HEREBY GRANTS TO
THE AGENT A LIEN ON AND SECURITY INTEREST IN THE RESERVE ACCOUNT AND ALL FUNDS
OR OTHER ASSETS CONTAINED THEREIN OR CREDITED THERETO TO SECURE FIRST, THE
LETTER OF CREDIT OBLIGATIONS AND THEN ALL OTHER OBLIGATIONS.
3.3.
DISTRIBUTION AGENT.
(A)
APPOINTMENT.
EACH LENDER AGREES THAT UPON THE SENDING OF A NOTICE
OF ELECTION TO SHARE IN ACCORDANCE WITH AND PURSUANT TO SECTION 3.1 HEREOF, THE
REQUISITE LENDERS SHALL IN GOOD FAITH PROMPTLY SEEK TO APPOINT AN AGENT (THE
"DISTRIBUTION AGENT") TO DISTRIBUTE
8
SHARED PAYMENTS TO THE LENDERS. IF NO DISTRIBUTION AGENT SHALL HAVE BEEN
APPOINTED BY THE REQUISITE LENDERS AND ACCEPTED APPOINTMENT IN THE MANNER
HEREINAFTER PROVIDED WITHIN 30 DAYS AFTER THE SENDING OF SUCH NOTICE OF ELECTION
TO SHARE, ANY LENDER MAY PETITION ANY COURT OF COMPETENT JURISDICTION IN NEW
YORK CITY FOR THE APPOINTMENT OF THE DISTRIBUTION AGENT.
(B)
ACCEPTANCE OF APPOINTMENT. THE DISTRIBUTION AGENT APPOINTED
HEREUNDER SHALL EXECUTE, ACKNOWLEDGE AND DELIVER TO EACH LENDER AN INSTRUMENT
ACCEPTING SUCH APPOINTMENT AND AGREEING TO BE BOUND BY THE TERMS OF THIS
AGREEMENT.
(C)
REMITTANCE AND DISTRIBUTION. UPON THE APPOINTMENT OF THE
DISTRIBUTION AGENT, EACH RECEIVING LENDER SHALL REMIT ANY SHARED PAYMENT
RECEIVED BY IT TO THE DISTRIBUTION AGENT FOR DISTRIBUTION IN ACCORDANCE WITH
SECTION 3.2 HEREOF. UPON RECEIPT OF ANY SHARED PAYMENT, THE DISTRIBUTION AGENT
SHALL CALCULATE THE AMOUNT OF SUCH SHARED PAYMENT DISTRIBUTABLE TO EACH LENDER
PURSUANT TO SECTION 3.2 HEREOF AS OF THE DATE THE RECEIVING LENDER RECEIVED SUCH
SHARED PAYMENT AND REMIT SUCH AMOUNT TO EACH LENDER, ACCOMPANIED BY COMPUTATIONS
IN REASONABLE DETAIL SHOWING THE MANNER OF CALCULATION OF THE AMOUNTS
DISTRIBUTABLE TO EACH LENDER PURSUANT TO SECTION 3.2 HEREOF.
3.4.
INVALIDATED PAYMENTS.
If any amount distributed by the Distribution Agent to the Lenders in accordance
with the provisions of this Agreement is subsequently required to be returned or
repaid to any Subsidiary of the Company or their representatives or successors
in interest, whether by court order, settlement or otherwise, each Lender shall,
promptly upon its receipt of notice thereof (together with information
explaining why such amount is required to be returned or repaid) from the
Distribution Agent, pay to the Distribution Agent the pro rata portion received