THEREOF (WHETHER VOLUNTARILY OR INVOLUNTARILY, BY SETOFF,
PURSUANT TO EVENTS OR PROCEEDINGS OF THE NATURE REFERRED TO IN SECTION 10.1(E)
OR SECTION 10.1(F) HEREOF, OR OTHERWISE) IN A GREATER PROPORTION THAN ANY SUCH
PAYMENT TO AND COLLATERAL RECEIVED BY ANY OTHER LENDER IN RESPECT OF SUCH OTHER
LENDER'S LOANS OR INTEREST THEREON NOT EXPRESSLY PROVIDED HEREBY, SUCH BENEFITED
LENDER SHALL PURCHASE FOR CASH FROM THE OTHER LENDERS SUCH PORTION OF EACH SUCH
OTHER LENDER'S LOANS, OR SHALL PROVIDE SUCH OTHER LENDERS WITH THE BENEFITS OF
ANY SUCH COLLATERAL, OR THE PROCEEDS THEREOF, AS SHALL BE NECESSARY TO CAUSE
SUCH BENEFITED LENDER TO SHARE THE EXCESS PAYMENT OR BENEFITS OF SUCH COLLATERAL
OR PROCEEDS RATABLY WITH EACH LENDER EXCEPT TO THE EXTENT EXPRESSLY PROVIDED
HEREBY; PROVIDED, HOWEVER, THAT IF ALL OR ANY PORTION OF SUCH EXCESS PAYMENT OR
BENEFITS IS THEREAFTER RECOVERED FROM SUCH BENEFITED LENDER, SUCH PURCHASE SHALL
BE RESCINDED, AND THE PURCHASE PRICE AND BENEFITS RETURNED, TO THE EXTENT OF
SUCH RECOVERY, BUT WITHOUT INTEREST UNLESS THE BENEFITED LENDER FROM WHICH SUCH
EXCESS PAYMENT IS RECOVERED IS REQUIRED BY COURT ORDER TO PAY INTEREST THEREON,
IN WHICH CASE EACH LENDER RETURNING FUNDS TO SUCH BENEFITED LENDER SHALL PAY ITS
PRO RATA SHARE OF SUCH INTEREST.
BORROWER AGREES THAT EACH LENDER SO PURCHASING
A PORTION OF ANOTHER LENDER'S LOANS MAY EXERCISE ALL RIGHTS OF PAYMENT
(INCLUDING, WITHOUT LIMITATION, RIGHTS OF SETOFF) WITH RESPECT TO SUCH PORTION
AS FULLY AS IF SUCH LENDER WERE THE DIRECT HOLDER OF SUCH PORTION.
70
(B)
EACH BORROWER AGREES THAT ANY LENDER SO PURCHASING A PARTICIPATION
FROM ANOTHER LENDER PURSUANT TO THIS SECTION 4.10 MAY, TO THE FULLEST EXTENT
PERMITTED BY LAW, EXERCISE ALL ITS RIGHTS OF PAYMENT (INCLUDING THE RIGHT OF
SETOFFS, BUT SUBJECT TO SECTION 13.7) WITH RESPECT TO SUCH PARTICIPATION AS
FULLY AS IF SUCH LENDER WERE THE DIRECT CREDITOR OF SUCH BORROWER IN THE AMOUNT
OF SUCH PARTICIPATION.
(C)
NOTHING HEREIN SHALL REQUIRE ANY LENDER TO EXERCISE ANY RIGHT OF
SETOFFS OR SIMILAR RIGHTS OR SHALL AFFECT THE RIGHT OF ANY LENDER TO EXERCISE,
AND RETAIN THE BENEFITS OF EXERCISING, ANY SUCH RIGHT WITH RESPECT TO ANY OTHER
INDEBTEDNESS OR OBLIGATION OF ANY BORROWER.
4.11
MAINTENANCE OF ACCOUNT.
ADMINISTRATIVE AGENT SHALL MAINTAIN A
SEPARATE ACCOUNT ON ITS BOOKS AND RECORDS IN THE NAME OF BORROWERS ("BORROWERS'
ACCOUNT") IN WHICH THE BORROWERS WILL BE CHARGED OR CREDITED WITH (W) THE
PROCEEDS, IF ANY, OF EACH LOAN RECEIVED BY OR FOR THE ACCOUNT OF BORROWERS, (X)
PAYMENTS MADE TO ADMINISTRATIVE AGENT ON ACCOUNT OF THE OBLIGATIONS OF
BORROWERS, WHETHER FROM COLLECTION OF PROCEEDS OF COLLATERAL OR OTHERWISE, (Y)
THE AGGREGATE FACE AMOUNT OF ALL OUTSTANDING LETTERS OF CREDIT ISSUED FOR THE
BENEFIT OF BORROWERS, AND (Z) ALL OTHER FEES, EXPENSES AND OTHER OBLIGATIONS
ATTRIBUTABLE TO BORROWERS AS DETERMINED BY ADMINISTRATIVE AGENT.
IN NO EVENT
SHALL PRIOR RECOURSE TO ANY INVENTORY, RECEIVABLES OR OTHER COLLATERAL BE A
PREREQUISITE TO ADMINISTRATIVE AGENT'S RIGHT TO DEMAND PAYMENT OF ANY OBLIGATION
UPON ITS MATURITY.
4.12
STATEMENT