BORROWER MAY HAVE
AGAINST SUCH LENDER AS A RESULT OF A DEFAULT BY SUCH LENDER UNDER THIS
AGREEMENT.
(C)
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, EACH LENDER SHALL BE OBLIGATED TO FUND ITS PRO RATA SHARE OF ANY
REVOLVING LOAN MADE AFTER ANY EVENT OF DEFAULT OR ACCELERATION OF THE
OBLIGATIONS WITH RESPECT TO ANY DRAW ON A LETTER OF CREDIT.
(C)
RETURN OF PAYMENTS.
(A)
IF ADMINISTRATIVE 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 ADMINISTRATIVE AGENT FROM BORROWER AND SUCH
RELATED PAYMENT IS NOT RECEIVED BY ADMINISTRATIVE AGENT, THEN ADMINISTRATIVE
AGENT WILL BE ENTITLED TO RECOVER SUCH AMOUNT FROM SUCH LENDER WITHOUT SET-OFF,
COUNTERCLAIM OR DEDUCTION OF ANY KIND.
(B)
IF ADMINISTRATIVE AGENT DETERMINES AT ANY
TIME THAT ANY AMOUNT RECEIVED BY ADMINISTRATIVE AGENT UNDER THIS AGREEMENT MUST
BE RETURNED TO BORROWER OR PAID TO ANY
52
OTHER PERSON PURSUANT TO ANY SOLVENCY LAW OR OTHERWISE, THEN, NOTWITHSTANDING
ANY OTHER TERM OR CONDITION OF THIS AGREEMENT, ADMINISTRATIVE AGENT WILL NOT BE
REQUIRED TO DISTRIBUTE ANY PORTION THEREOF TO ANY LENDER.
IN ADDITION, EACH
LENDER WILL REPAY TO ADMINISTRATIVE AGENT ON DEMAND ANY PORTION OF SUCH AMOUNT
THAT ADMINISTRATIVE AGENT HAS DISTRIBUTED TO SUCH LENDER, TOGETHER WITH INTEREST
AT SUCH RATE, IF ANY, AS ADMINISTRATIVE AGENT IS REQUIRED TO PAY TO BORROWER OR
SUCH OTHER PERSON, WITHOUT SET-OFF, COUNTERCLAIM OR DEDUCTION OF ANY KIND.
SECTION 9
MISCELLANEOUS
9.1.
INDEMNITIES.
BORROWER AGREES TO INDEMNIFY,
PAY, AND HOLD ADMINISTRATIVE AGENT AND EACH LENDER AND THEIR RESPECTIVE
AFFILIATES AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND
ATTORNEYS OF ADMINISTRATIVE AGENT, EACH LENDER AND THEIR RESPECTIVE AFFILIATES
(THE "INDEMNITEES") HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS AND CLAIMS OF
ANY KIND OR NATURE WHATSOEVER THAT MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED
AGAINST THE INDEMNITEE AS A RESULT OF ADMINISTRATIVE AGENT AND EACH LENDER BEING
A PARTY TO THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT;
PROVIDED, THAT BORROWER SHALL HAVE NO OBLIGATION TO AN INDEMNITEE HEREUNDER WITH
RESPECT TO LIABILITIES ARISING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THAT
INDEMNITEE AS DETERMINED BY A COURT OF COMPETENT JURISDICTION; PROVIDED FURTHER,
HOWEVER, THAT BORROWER'S OBLIGATIONS TO INDEMNIFY OR COMPENSATE ANY INDEMNITEE
FOR TAXES SHALL BE SUBJECT TO SUBSECTION 1.13. THIS SUBSECTION 9.1 AND ALL
INDEMNIFICATION PROVISIONS CONTAINED WITHIN ANY OTHER LOAN DOCUMENT SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT.
9.2.
AMENDMENTS AND WAIVERS.
EXCEPT AS OTHERWISE
PROVIDED HEREIN, NO AMENDMENT, MODIFICATION, TERMINATION OR WAIVER OF ANY
PROVISION OF THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS (OTHER
THAN ANY RELATED INTEREST RATE AGREEMENT, WHICH MAY ONLY BE AMENDED, MODIFIED OR
TERMINATED, OR ANY PROVISION THEREOF WAIVED, IN ACCORDANCE WITH THE TERMS
THEREOF), OR CONSENT TO ANY DEPARTURE BY BORROWER THEREFROM, SHALL IN ANY EVENT
BE EFFECTIVE UNLESS THE SAME SHALL BE IN WRITING AND SIGNED BY BORROWER AND
REQUISITE LENDERS