OR IN CONNECTION WITH (A) THE FAILURE OF ANY OTHER LENDER TO FULFILL
OR COMPLY WITH ITS OBLIGATIONS TO ANY ISSUING BANK HEREUNDER (BUT NOTHING HEREIN
CONTAINED SHALL AFFECT ANY RIGHTS THE BORROWERS MAY HAVE AGAINST ANY DEFAULTING
LENDER) OR (B) BY REASON OF OR ON ACCOUNT OF ANY ISSUING BANK ISSUING ANY LETTER
OF CREDIT WHICH SPECIFIES THAT THE TERM "BENEFICIARY" INCLUDED THEREIN INCLUDES
ANY SUCCESSOR BY OPERATION OF LAW OF THE NAMED BENEFICIARY, BUT WHICH LETTER OF
CREDIT DOES NOT REQUIRE THAT ANY DRAWING BY ANY SUCH SUCCESSOR BENEFICIARY BE
ACCOMPANIED BY A COPY OF A LEGAL DOCUMENT, SATISFACTORY TO THE APPLICABLE
ISSUING BANK, EVIDENCING THE APPOINTMENT OF SUCH SUCCESSOR BENEFICIARY; PROVIDED
THAT THE BORROWERS SHALL NOT BE REQUIRED TO INDEMNIFY ANY LENDER, ANY ISSUING
BANK OR THE AGENT FOR ANY CLAIMS, LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS, AND NO
LENDER SHALL BE LIABLE FOR ANY PORTION OF SUCH CLAIMS, LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR
DISBURSEMENTS, RESULTING FROM SUCH ISSUING BANK'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
WITHOUT LIMITATION OF THE FOREGOING, EACH LENDER AGREES TO
REIMBURSE ANY ISSUING BANK PROMPTLY UPON DEMAND FOR ITS PERCENTAGE INTEREST OF
ANY COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF COUNSEL) PAYABLE BY THE BORROWERS UNDER SECTION 12.1 OR 12.2 WITH
RESPECT TO A LETTER OF CREDIT ISSUED BY SUCH ISSUING BANK, TO THE EXTENT THAT
SUCH ISSUING BANK IS NOT PROMPTLY
29
REIMBURSED FOR SUCH COSTS AND EXPENSES BY THE BORROWERS.
THE FAILURE OF ANY
LENDER TO REIMBURSE AN ISSUING BANK PROMPTLY UPON DEMAND FOR ITS PERCENTAGE
INTEREST OF ANY AMOUNT REQUIRED TO BE PAID BY THE LENDER TO SUCH ISSUING BANK AS
PROVIDED HEREIN SHALL NOT RELIEVE ANY OTHER LENDER OF ITS OBLIGATION HEREUNDER
TO REIMBURSE SUCH ISSUING BANK FOR ITS PERCENTAGE INTEREST OF SUCH AMOUNT, BUT
NO LENDER SHALL BE RESPONSIBLE FOR THE FAILURE OF ANY OTHER LENDER TO REIMBURSE
SUCH ISSUING BANK FOR SUCH OTHER LENDER'S PERCENTAGE INTEREST OF SUCH AMOUNT.
WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER AGREEMENT OF ANY LENDER
HEREUNDER, THE AGREEMENT AND OBLIGATIONS OF EACH LENDER CONTAINED IN THIS
SECTION 2.4.11 WILL SURVIVE THE PAYMENT IN FULL OF PRINCIPAL, INTEREST AND ALL
OTHER AMOUNTS PAYABLE HEREUNDER AND UNDER THE OTHER CREDIT DOCUMENTS.
2.4.12
RIGHTS AS A LENDER OR AGENT.
IN ITS CAPACITY AS A LENDER, THE AGENT
AND EACH ISSUING BANK SHALL HAVE THE SAME RIGHTS AND OBLIGATIONS AS ANY OTHER
LENDER.
IN ITS CAPACITY AS THE AGENT, THE AGENT SHALL HAVE ALL OF THE RIGHTS
AND OBLIGATIONS OF THE AGENT.
2.5
Application of Proceeds.
2.5.1
LOAN.
THE BORROWERS WILL APPLY THE PROCEEDS OF THE LOANS TO
REFINANCE EXISTING INDEBTEDNESS INCURRED PURSUANT TO THAT CERTAIN $125,000,000
SENIOR UNSECURED REVOLVING CREDIT AGREEMENT BY AND AMONG CERTAIN BORROWERS,
CERTAIN LENDERS AND WELLS FARGO AS AGENT AND LEAD ARRANGER, DATED AS OF JULY 28,
2003, AS AMENDED TO DATE, TO PAY FEES AND EXPENSES INCURRED IN CONNECTION WITH
THE CREDIT