ORDER TO
CORRECT ANY ERROR, THE AGENT AND THE LENDERS SHALL HAVE THE CONTINUING AND
EXCLUSIVE RIGHT TO APPLY AND REVERSE AND REAPPLY ANY AND ALL SUCH PROCEEDS AND
PAYMENTS TO ANY PORTION OF THE OBLIGATIONS.
3.9
INDEMNITY FOR RETURNED PAYMENTS.
IF AFTER
RECEIPT OF ANY PAYMENT WHICH IS APPLIED TO THE PAYMENT OF ALL OR ANY PART OF THE
OBLIGATIONS, THE AGENT, ANY LENDER, THE BANK OR ANY AFFILIATE OF THE BANK IS FOR
ANY REASON COMPELLED TO SURRENDER SUCH PAYMENT OR PROCEEDS TO ANY PERSON BECAUSE
SUCH PAYMENT OR APPLICATION OF PROCEEDS IS INVALIDATED, DECLARED FRAUDULENT, SET
ASIDE, DETERMINED TO BE VOID OR VOIDABLE AS A PREFERENCE, IMPERMISSIBLE SETOFF,
OR A DIVERSION OF TRUST FUNDS, OR FOR ANY OTHER REASON, THEN THE OBLIGATIONS OR
PART THEREOF INTENDED TO BE SATISFIED SHALL BE REVIVED AND CONTINUED AND THIS
AGREEMENT SHALL CONTINUE IN FULL FORCE AS IF SUCH PAYMENT OR PROCEEDS HAD NOT
BEEN RECEIVED BY THE AGENT, SUCH LENDER, THE BANK OR ANY AFFILIATE OF THE BANK
AND THE BORROWERS SHALL BE LIABLE TO PAY TO THE AGENT AND THE LENDERS, AND
HEREBY INDEMNIFY THE AGENT AND THE LENDERS AND HOLD THE AGENT AND THE LENDERS
HARMLESS FOR THE AMOUNT OF SUCH PAYMENT OR PROCEEDS SURRENDERED.
THE PROVISIONS
OF THIS SECTION 3.9 SHALL BE AND REMAIN EFFECTIVE NOTWITHSTANDING ANY CONTRARY
ACTION WHICH MAY HAVE BEEN TAKEN BY THE
27
AGENT OR ANY LENDER, THE BANK OR ANY AFFILIATE OF THE BANK IN RELIANCE UPON SUCH
PAYMENT OR APPLICATION OF PROCEEDS, AND ANY SUCH CONTRARY ACTION SO TAKEN SHALL
BE WITHOUT PREJUDICE TO THE AGENT'S AND THE LENDERS' RIGHTS UNDER THIS AGREEMENT
AND SHALL BE DEEMED TO HAVE BEEN CONDITIONED UPON SUCH PAYMENT OR APPLICATION OF
PROCEEDS HAVING BECOME FINAL AND IRREVOCABLE.
THE PROVISIONS OF THIS
SECTION 3.9 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
3.10
THE AGENT'S AND LENDERS' BOOKS AND RECORDS;
MONTHLY STATEMENTS.
THE AGENT SHALL RECORD THE PRINCIPAL AMOUNT OF THE LOANS
OWING TO EACH LENDER, THE UNDRAWN FACE AMOUNT OF ALL OUTSTANDING LETTERS OF
CREDIT AND THE AGGREGATE AMOUNT OF UNPAID REIMBURSEMENT OBLIGATIONS OUTSTANDING
WITH RESPECT TO THE LETTERS OF CREDIT FROM TIME TO TIME ON ITS BOOKS.
IN
ADDITION, EACH LENDER MAY NOTE THE DATE AND AMOUNT OF EACH PAYMENT OR PREPAYMENT
OF PRINCIPAL OF SUCH LENDER'S LOANS IN ITS BOOKS AND RECORDS.
FAILURE BY THE
AGENT OR ANY LENDER TO MAKE SUCH NOTATION SHALL NOT AFFECT THE OBLIGATIONS OF
THE APPLICABLE BORROWER WITH RESPECT TO THE LOANS OR THE LETTERS OF CREDIT.
EACH BORROWER AGREES THAT THE AGENT'S AND EACH LENDER'S BOOKS AND RECORDS
SHOWING THE OBLIGATIONS AND THE TRANSACTIONS PURSUANT TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS SHALL BE ADMISSIBLE IN ANY ACTION OR PROCEEDING ARISING
THEREFROM, AND SHALL CONSTITUTE REBUTTABLY PRESUMPTIVE PROOF THEREOF,
IRRESPECTIVE OF WHETHER ANY OBLIGATION IS ALSO EVIDENCED BY A PROMISSORY NOTE OR
OTHER INSTRUMENT.
THE AGENT WILL PROVIDE TO THE BORROWERS A MONTHLY STATEMENT
OF LOANS, PAYMENTS, AND OTHER TRANSACTIONS PURSUANT TO THIS AGREEMENT.
SUCH
STATEMENT