COLLATERAL TO SECURE THE LC EXPOSURE AS PROVIDED IN SECTION 2.09(B)) SHALL
BECOME AUTOMATICALLY IMMEDIATELY DUE AND PAYABLE WITHOUT PRESENTMENT, DEMAND,
PROTEST, NOTICE OF INTENT TO ACCELERATE, NOTICE OF ACCELERATION OR OTHER
FORMALITIES OF ANY KIND, ALL OF WHICH ARE HEREBY EXPRESSLY WAIVED BY THE
BORROWER.
(C)
ALL PROCEEDS RECEIVED AFTER THE TERMINATION
DATE, WHETHER BY ACCELERATION OR OTHERWISE SHALL BE APPLIED FIRST TO
REIMBURSEMENT OF EXPENSES AND INDEMNITIES PROVIDED FOR IN THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS; SECOND TO ACCRUED INTEREST HEREUNDER; THIRD TO FEES;
FOURTH PRO RATA TO PRINCIPAL OUTSTANDING HEREUNDER, OTHER DEBT HEREUNDER AND
OBLIGATIONS UNDER ANY HEDGING AGREEMENTS BETWEEN THE BORROWER AND ANY OTHER
PERSON THAT WAS A LENDER OR AN AFFILIATE OF A LENDER AT THE TIME SUCH HEDGING
AGREEMENT WAS EXECUTED; FIFTH TO SERVE AS CASH COLLATERAL TO BE HELD BY THE
AGENT TO SECURE THE LC EXPOSURE; AND ANY EXCESS SHALL BE PAID TO THE BORROWER OR
AS OTHERWISE REQUIRED BY ANY GOVERNMENTAL REQUIREMENT.
55
ARTICLE XI
THE AGENT
SECTION 11.01.
THE AGENT.
(A)
APPOINTMENT.
EACH LENDER APPOINTS THE
AGENT (INCLUDING, WITHOUT LIMITATION, EACH SUCCESSOR AGENT IN ACCORDANCE WITH
THIS SECTION 11.01) AS ITS NOMINEE AND AGENT TO ACT IN ITS NAME AND ON ITS
BEHALF (AND THE AGENT AND EACH SUCH SUCCESSOR ACCEPTS THAT APPOINTMENT):
(I) TO
ACT AS ITS NOMINEE AND ON ITS BEHALF IN AND UNDER ALL LOAN DOCUMENTS; (II) TO
ARRANGE THE MEANS WHEREBY ITS FUNDS ARE TO BE MADE AVAILABLE TO THE BORROWER
UNDER THE LOAN DOCUMENTS; (III) TO TAKE ANY ACTION THAT IT PROPERLY REQUESTS
UNDER THE LOAN DOCUMENTS (SUBJECT TO THE CONCURRENCE OF OTHER LENDERS AS MAY BE
REQUIRED UNDER THE LOAN DOCUMENTS); (IV) TO RECEIVE ALL DOCUMENTS AND ITEMS TO
BE FURNISHED TO IT UNDER THE LOAN DOCUMENTS; (V) TO BE THE SECURED PARTY,
MORTGAGEE, BENEFICIARY, RECIPIENT AND SIMILAR PARTY IN RESPECT OF THE CASH
COLLATERAL UNDER SECTION 2.09(B) AND ANY OTHER COLLATERAL FOR THE BENEFIT OF THE
LENDERS AND THE LC ISSUING BANK (AT ANY TIME AN EVENT OF DEFAULT OR DEFAULT HAS
OCCURRED AND IS CONTINUING); (VI) TO PROMPTLY DISTRIBUTE TO IT ALL MATERIAL
INFORMATION, REQUESTS, DOCUMENTS AND ITEMS RECEIVED FROM THE BORROWER, ANY OF
ITS SUBSIDIARIES OR ANY RESTRICTED SUBSIDIARY UNDER THE LOAN DOCUMENTS; (VII) TO
PROMPTLY DISTRIBUTE TO IT ITS RATABLE PART OF EACH PAYMENT OR PREPAYMENT
(WHETHER VOLUNTARY, AS PROCEEDS OF COLLATERAL UPON OR AFTER FORECLOSURE, AS
PROCEEDS OF INSURANCE THEREON OR OTHERWISE) IN ACCORDANCE WITH THE TERMS OF THE
LOAN DOCUMENTS; AND (VIII) TO DELIVER TO THE APPROPRIATE PERSONS REQUESTS,
DEMANDS, APPROVALS AND CONSENTS RECEIVED FROM IT.
THE AGENT, HOWEVER, MAY NOT
BE REQUIRED TO TAKE ANY ACTION THAT EXPOSES IT TO PERSONAL LIABILITY OR THAT IS
CONTRARY TO ANY LOAN DOCUMENT OR APPLICABLE GOVERNMENTAL REQUIREMENT.
THE AGENT
MAY EXECUTE ANY OF ITS DUTIES HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS BY OR
THROUGH AGENTS OR ATTORNEYS-IN-FACT AND SHALL BE ENTITLED TO ADVICE OF COUNSEL
(INCLUDING BORROWER'S COUNSEL) CONCERNING ALL MATTERS PERTAINING TO SUCH
DUTIES.
THE AGENT