OR OTHER SUMS RECEIVED BY AGENT BANK FOR THE ACCOUNT OF LENDERS (INCLUDING,
WITHOUT LIMITATION, PRINCIPAL AND INTEREST PAYMENTS, THE PROCEEDS OF ANY AND ALL
INSURANCE MAINTAINED WITH RESPECT TO ANY OF THE COLLATERAL, AND ANY AND ALL
CONDEMNATION PROCEEDS WITH RESPECT TO ANY OF THE COLLATERAL) SHALL NOT
CONSTITUTE PROPERTY OR ASSETS OF THE AGENT BANK AND SHALL BE HELD BY AGENT BANK,
SOLELY IN ITS CAPACITY AS ADMINISTRATIVE AND COLLATERAL AGENT FOR ITSELF AND THE
OTHER LENDERS, SUBJECT TO THE LOAN DOCUMENTS.
(B)
NOTWITHSTANDING ANY PROVISION HEREOF TO THE CONTRARY, UNTIL SUCH
TIME AS A DEFAULTING LENDER HAS FUNDED ITS PRO RATA SHARE OF BORROWING WHICH WAS
PREVIOUSLY A NON PRO RATA BORROWING, OR ALL OTHER LENDERS HAVE RECEIVED PAYMENT
IN FULL (WHETHER BY REPAYMENT OR PREPAYMENT) OF THE PRINCIPAL DUE IN RESPECT OF
SUCH NON PRO RATA BORROWING, ALL PRINCIPAL SUMS OWING TO SUCH DEFAULTING LENDER
HEREUNDER SHALL BE SUBORDINATED IN RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN FULL
OF ALL PRINCIPAL, IN RESPECT OF ALL NON PRO RATA BORROWING IN WHICH THE
DEFAULTING LENDER HAS NOT FUNDED ITS PRO RATA SHARE.
THIS PROVISION GOVERNS
ONLY THE RELATIONSHIP AMONG AGENT BANK, EACH DEFAULTING LENDER, AND THE OTHER
LENDERS; NOTHING HEREUNDER SHALL LIMIT THE OBLIGATION OF BORROWER TO REPAY ALL
BORROWINGS IN ACCORDANCE WITH THE TERMS OF THIS CREDIT AGREEMENT.
THE
PROVISIONS OF THIS SECTION SHALL APPLY AND BE EFFECTIVE REGARDLESS OF WHETHER AN
EVENT OF DEFAULT OCCURS AND IS THEN CONTINUING, AND NOTWITHSTANDING (I) ANY
OTHER PROVISION OF THIS CREDIT AGREEMENT TO THE CONTRARY, (II) ANY INSTRUCTION
OF BORROWER AS TO ITS DESIRED APPLICATION OF PAYMENTS OR (III) THE SUSPENSION OF
SUCH DEFAULTING LENDER'S RIGHT TO VOTE ON MATTERS WHICH ARE SUBJECT TO THE
CONSENT OR APPROVAL OF REQUISITE LENDERS OR ALL LENDERS.
NO COMMITMENT FEE OR
L/C FEES SHALL ACCRUE IN FAVOR OF, OR BE PAYABLE TO, SUCH DEFAULTING LENDER FROM
THE DATE OF ANY FAILURE TO FUND BORROWINGS OR REIMBURSE AGENT BANK FOR ANY
LIABILITIES AND COSTS AS HEREIN PROVIDED UNTIL SUCH FAILURE HAS BEEN CURED, AND
AGENT BANK SHALL BE ENTITLED TO (A) WITHHOLD OR SETOFF, AND TO APPLY TO THE
PAYMENT OF THE DEFAULTED AMOUNT AND ANY RELATED INTEREST, ANY AMOUNTS TO BE PAID
TO SUCH DEFAULTING LENDER UNDER THIS CREDIT AGREEMENT, AND (B) BRING AN ACTION
OR SUIT AGAINST SUCH DEFAULTING LENDER IN A COURT OF COMPETENT JURISDICTION TO
RECOVER THE DEFAULTED AMOUNT AND ANY RELATED INTEREST.
IN ADDITION, THE
DEFAULTING LENDER SHALL INDEMNIFY, DEFEND AND HOLD AGENT BANK AND EACH OF THE
OTHER LENDERS HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES AND COSTS, PLUS
INTEREST THEREON AT THE DEFAULT RATE, WHICH THEY MAY SUSTAIN OR INCUR BY REASON
OF OR AS A DIRECT CONSEQUENCE OF THE DEFAULTING LENDER'S FAILURE OR REFUSAL TO
ABIDE BY ITS OBLIGATIONS UNDER THIS CREDIT AGREEMENT.
108
SECTION 9.05.
RIGHTS, EXCULPATION, ETC.
NEITHER AGENT BANK, ANY
AFFILIATE OF AGENT BANK, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ATTORNEYS OR CONSULTANTS, SHALL BE LIABLE