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.
B.
IN ADDITION TO ANY RIGHTS AND REMEDIES OF
THE LENDERS PROVIDED BY LAW, EACH LENDER SHALL HAVE THE RIGHT, WITHOUT PRIOR
NOTICE TO THE BORROWER, ANY SUCH NOTICE BEING EXPRESSLY WAIVED BY THE BORROWER,
UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, TO
SETOFF
AND APPLY AGAINST ANY OBLIGATIONS, WHETHER MATURED OR UNMATURED, OF THE
BORROWER TO SUCH LENDER, ANY AMOUNT OWING FROM SUCH LENDER TO THE BORROWER, AT
OR AT ANY TIME AFTER, THE HAPPENING OF
ANY OF THE ABOVE-MENTIONED EVENTS, AND
THE AFORESAID RIGHT OF SETOFF MAY BE EXERCISED BY SUCH LENDER AGAINST THE
BORROWER OR AGAINST ANY TRUSTEE IN BANKRUPTCY, DEBTOR IN POSSESSION, ASSIGNEE
FOR THE BENEFIT OF CREDITORS, RECEIVERS, OR EXECUTION, JUDGMENT OR ATTACHMENT
CREDITOR OF THE BORROWER, OR AGAINST ANYONE ELSE CLAIMING THROUGH OR AGAINST,
THE BORROWER OR SUCH TRUSTEE IN BANKRUPTCY, DEBTOR IN POSSESSION, ASSIGNEE FOR
THE BENEFIT OF CREDITORS, RECEIVERS, OR EXECUTION, JUDGMENT OR ATTACHMENT
CREDITOR, NOTWITHSTANDING THE FACT THAT SUCH RIGHT OF SETOFF SHALL NOT HAVE BEEN
EXERCISED BY SUCH LENDER PRIOR TO THE MAKING, FILING OR ISSUANCE, OR SERVICE
UPON SUCH LENDER OF, OR OF NOTICE OF, ANY SUCH PETITION, ASSIGNMENT FOR THE
BENEFIT OF CREDITORS, APPOINTMENT OR APPLICATION FOR THE APPOINTMENT OF A
RECEIVER, OR ISSUANCE OF EXECUTION, SUBPOENA, ORDER OR WARRANT.
EACH LENDER
AGREES PROMPTLY TO NOTIFY THE BORROWER AND THE ADMINISTRATIVE AGENT AFTER ANY
SUCH SETOFF AND APPLICATION MADE BY SUCH LENDER, PROVIDED THAT THE FAILURE TO
GIVE SUCH NOTICE SHALL NOT AFFECT THE VALIDITY OF SUCH SETOFF AND APPLICATION.
C.
THE BORROWER EXPRESSLY AGREES THAT TO THE
EXTENT THE BORROWER MAKES A PAYMENT OR PAYMENTS AND SUCH PAYMENT OR PAYMENTS, OR
ANY PART THEREOF, ARE SUBSEQUENTLY INVALIDATED, DECLARED TO BE FRAUDULENT OR
PREFERENTIAL, SET ASIDE OR ARE REQUIRED TO BE REPAID TO A TRUSTEE, RECEIVER, OR
ANY OTHER PARTY UNDER ANY BANKRUPTCY ACT, STATE OR FEDERAL LAW, COMMON LAW OR
EQUITABLE CAUSE, THEN TO THE EXTENT OF SUCH PAYMENT OR REPAYMENT, THE
INDEBTEDNESS TO THE LENDERS OR PART THEREOF INTENDED TO BE SATISFIED SHALL BE
REVIVED AND CONTINUED IN FULL FORCE AND EFFECT AS IF SAID PAYMENT OR PAYMENTS
HAD NOT BEEN MADE.
157
20.7.
EXECUTION IN COUNTERPARTS
A.
THIS AGREEMENT MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS AND BY DIFFERENT PARTIES HERETO ON SEPARATE COUNTERPARTS,
EACH OF WHICH COUNTERPARTS, WHEN SO EXECUTED AND DELIVERED, SHALL BE DEEMED TO
BE AN ORIGINAL AND ALL OF WHICH COUNTERPARTS, TAKEN TOGETHER, SHALL CONSTITUTE
BUT ONE AND THE SAME AGREEMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF A
SIGNATURE PAGE OF THIS AGREEMENT BY TELECOPY SHALL BE EFFECTIVE AS DELIVERY OF A
MANUALLY EXECUTED COUNTERPART OF THIS AGREEMENT.
B.
ELECTRONIC EXECUTION OF ASSIGNMENTS.
THE
WORDS "EXECUTION," "SIGNED," "SIGNATURE," AND WORDS OF LIKE IMPORT IN ANY
ASSIGNMENT AND ASSUMPTION SHALL BE DEEMED TO INCLUDE ELECTRONIC SIGNATURES OR
THE KEEPING OF