TO AGENT.
NOTHING IN THIS SECTION 8.5(B) OR ELSEWHERE IN THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS SHALL BE DEEMED TO REQUIRE AGENT TO ADVANCE FUNDS ON BEHALF OF ANY
REVOLVING LENDER OR TO RELIEVE ANY REVOLVING LENDER FROM ITS OBLIGATION TO
FULFILL ITS COMMITMENTS HEREUNDER OR TO PREJUDICE ANY RIGHTS THAT BORROWERS MAY
72
HAVE AGAINST ANY REVOLVING LENDER AS A RESULT OF ANY DEFAULT BY SUCH REVOLVING
LENDER HEREUNDER.
TO THE EXTENT THAT AGENT ADVANCES FUNDS TO BORROWERS ON
BEHALF OF ANY REVOLVING LENDER AND IS NOT REIMBURSED THEREFOR ON THE SAME
BUSINESS DAY AS SUCH ADVANCE IS MADE, AGENT SHALL BE ENTITLED TO RETAIN FOR ITS
ACCOUNT ALL INTEREST ACCRUED ON SUCH ADVANCE UNTIL REIMBURSED BY THE APPLICABLE
REVOLVING LENDER.
(C)
RETURN OF PAYMENTS.
(I)
IF AGENT PAYS AN AMOUNT TO A LENDER UNDER THIS AGREEMENT IN THE
BELIEF OR EXPECTATION THAT A RELATED PAYMENT HAS BEEN OR WILL BE RECEIVED BY
AGENT FROM BORROWERS AND SUCH RELATED PAYMENT IS NOT RECEIVED BY AGENT, THEN
AGENT WILL BE ENTITLED TO RECOVER SUCH AMOUNT FROM SUCH LENDER ON DEMAND WITHOUT
SETOFF, COUNTERCLAIM OR DEDUCTION OF ANY KIND.
(II)
IF AGENT DETERMINES AT ANY TIME THAT ANY AMOUNT RECEIVED BY AGENT
UNDER THIS AGREEMENT MUST BE RETURNED TO ANY CREDIT PARTY OR PAID TO ANY OTHER
PERSON PURSUANT TO ANY INSOLVENCY LAW OR OTHERWISE, THEN, NOTWITHSTANDING ANY
OTHER TERM OR CONDITION OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, AGENT WILL
NOT BE REQUIRED TO DISTRIBUTE ANY PORTION THEREOF TO ANY LENDER.
IN ADDITION,
EACH LENDER WILL REPAY TO AGENT ON DEMAND ANY PORTION OF SUCH AMOUNT THAT AGENT
HAS DISTRIBUTED TO SUCH LENDER, TOGETHER WITH INTEREST AT SUCH RATE, IF ANY, AS
AGENT IS REQUIRED TO PAY TO ANY BORROWER OR SUCH OTHER PERSON, WITHOUT SETOFF,
COUNTERCLAIM OR DEDUCTION OF ANY KIND.
(D)
NON-FUNDING LENDERS.
THE FAILURE OF ANY NON-FUNDING LENDER TO
MAKE ANY REVOLVING CREDIT ADVANCE, ANY ALTERNATIVE CURRENCY REVOLVING CREDIT
ADVANCE OR ANY PAYMENT REQUIRED BY IT HEREUNDER, OR TO FUND ANY PURCHASE OF ANY
PARTICIPATION IN ANY SWING LINE LOAN TO BE MADE OR FUNDED BY IT ON THE DATE
SPECIFIED THEREFOR SHALL NOT RELIEVE ANY OTHER LENDER (EACH SUCH OTHER REVOLVING
LENDER, AN "OTHER LENDER") OF ITS OBLIGATIONS TO MAKE SUCH ADVANCE OR FUND THE
PURCHASE OF ANY SUCH PARTICIPATION ON SUCH DATE, BUT NEITHER ANY OTHER LENDER
NOR AGENT SHALL BE RESPONSIBLE FOR THE FAILURE OF ANY NON-FUNDING LENDER TO MAKE
AN ADVANCE, FUND THE PURCHASE OF A PARTICIPATION OR MAKE ANY OTHER PAYMENT
REQUIRED HEREUNDER.
NOTWITHSTANDING ANYTHING SET FORTH HEREIN TO THE CONTRARY,
A NON-FUNDING LENDER SHALL NOT HAVE ANY VOTING OR CONSENT RIGHTS UNDER OR WITH
RESPECT TO ANY LOAN DOCUMENT OR CONSTITUTE A "LENDER" OR A "REVOLVING LENDER" OR
A "SUPERMAJORITY LENDER" (OR BE INCLUDED IN THE CALCULATION OF "REQUISITE
LENDERS" OR "SUPERMAJORITY LENDERS" HEREUNDER) FOR ANY VOTING OR CONSENT RIGHTS
UNDER OR WITH RESPECT TO ANY LOAN DOCUMENT.
SECTION 9.
MISCELLANEOUS
9.1.
INDEMNITIES.
BORROWERS AGREE, JOINTLY AND SEVERALLY,