Nautilus 2007 Annual Report Download - page 127

5.5 Marshaling; Payments Set Aside . None of Agent or Lenders shall be under any obligation to marshal any assets in favor of any
Obligor or against any Obligations. If any payment by or on behalf of Borrowers is made to Agent, Issuing Bank or any Lender, or Agent,
Issuing Bank or any Lender exercises a right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Agent, Issuing
Bank or such Lender in its discretion) to be repaid to a trustee, receiver or any other Person, then to the extent of such recovery, the Obligation
originally intended to be satisfied, and all Liens, rights and remedies relating thereto, shall be revived and continued in full force and effect as if
such payment had not been made or such setoff had not occurred.
5.6 Post-Default Allocation of Payments .
5.6.1 Allocation . Notwithstanding anything herein to the contrary, during an Event of Default, monies to be applied to the
Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows:
(a) first , to all Obligations constituting costs and expenses, including Extraordinary Expenses, owing to Agent;
(b) second , to all amounts owing to Agent on Swingline Loans;
(c) third , to all amounts owing to Issuing Bank on LC Obligations;
(d) fourth , to all Obligations constituting fees then due and payable (excluding amounts relating to Bank Products);
(e) fifth , to all Obligations constituting interest (excluding amounts relating to Bank Products);
(f) sixth , to provide Cash Collateral for outstanding Letters of Credit;
(g) seventh , to all other Obligations, other than Bank Product Debt; and
(h) last , to Bank Product Debt.
Amounts shall be applied to each category of Obligations set forth above until Full Payment thereof and then to the next category. If amounts are
insufficient to satisfy a category, they shall be applied on a pro rata basis among the Obligations in the category. Amounts distributed with
respect to any Bank Product Debt relating to Cash Management Services provided by a Lender (or its Affiliates) other than Bank of America
shall be the lesser of the applicable Bank Product Amount last reported to Agent or the actual Bank Product Debt as calculated by the
methodology reported to Agent for determining the amount due. Agent shall have no obligation to calculate the amount to be distributed with
respect to any Bank Product Debt, but may rely upon written notice of the amount (setting forth a reasonably detailed calculation) from the
Secured Party. In the absence of such notice, Agent may assume the amount to be distributed is the Bank Product Amount last reported to it. The
allocations set forth in this Section are solely to determine the rights and priorities of Agent and Lenders as among themselves, and may be
changed by agreement among them without the consent of any Obligor. This Section is not for the benefit of or enforceable by any Borrower.
5.6.2 Erroneous Application . Agent shall not be liable for any application of amounts made by it in good faith and, if any such
application is subsequently determined to have been made in error, the sole recourse of any Lender or other Person to which such amount
should have been made shall be to recover the amount from the Person that actually received it (and, if such amount was received by any
Lender, such Lender hereby agrees to return it).
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