THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 10.7.
RIGHT OF SETOFF.
IN ADDITION TO ANY RIGHTS NOW OR HEREAFTER GRANTED UNDER APPLICABLE LAW AND NOT
BY WAY OF LIMITATION OF ANY SUCH RIGHTS, EACH LENDER AND THE ISSUING BANK SHALL
HAVE THE RIGHT, AT ANY TIME OR FROM TIME TO TIME UPON THE OCCURRENCE AND DURING
THE CONTINUANCE OF AN EVENT OF DEFAULT, WITHOUT PRIOR NOTICE TO THE BORROWER,
ANY SUCH NOTICE BEING EXPRESSLY WAIVED BY THE BORROWER TO THE EXTENT PERMITTED
BY APPLICABLE LAW, TO SET OFF AND APPLY AGAINST ALL DEPOSITS (GENERAL OR
SPECIAL, TIME OR DEMAND, PROVISIONAL OR FINAL) OF THE BORROWER AT ANY TIME HELD
OR OTHER OBLIGATIONS AT ANY TIME OWING BY SUCH LENDER OR ANY OF ITS AFFILIATES
AND THE ISSUING BANK TO OR FOR THE CREDIT OR THE ACCOUNT OF THE BORROWER AGAINST
ANY AND ALL OBLIGATIONS HELD BY SUCH LENDER OR THE
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ISSUING BANK, AS THE CASE MAY BE, IRRESPECTIVE OF WHETHER SUCH LENDER OR THE
ISSUING BANK SHALL HAVE MADE DEMAND HEREUNDER AND ALTHOUGH SUCH OBLIGATIONS MAY
BE UNMATURED.
EACH LENDER AND THE ISSUING BANK AGREE PROMPTLY TO NOTIFY THE
ADMINISTRATIVE AGENT AND THE BORROWER AFTER ANY SUCH SET-OFF AND ANY APPLICATION
MADE BY SUCH LENDER AND THE ISSUING BANK, AS THE CASE MAY BE; PROVIDED, THAT THE
FAILURE TO GIVE SUCH NOTICE SHALL NOT AFFECT THE VALIDITY OF SUCH SET-OFF AND
APPLICATION.
EACH LENDER AND THE ISSUING BANK AGREES TO APPLY ALL AMOUNTS
COLLECTED FROM ANY SUCH SET-OFF TO THE OBLIGATIONS BEFORE APPLYING SUCH AMOUNTS
TO ANY OTHER INDEBTEDNESS OR OTHER OBLIGATIONS OWED BY THE BORROWER AND ANY OF
ITS SUBSIDIARIES TO SUCH LENDER OR ISSUING BANK.
SECTION 10.8.
COUNTERPARTS;
INTEGRATION.
THIS AGREEMENT MAY BE EXECUTED BY ONE OR MORE OF THE PARTIES TO
THIS AGREEMENT ON ANY NUMBER OF SEPARATE COUNTERPARTS (INCLUDING BY TELECOPY),
AND ALL OF SAID COUNTERPARTS TAKEN TOGETHER SHALL BE DEEMED TO CONSTITUTE ONE
AND THE SAME INSTRUMENT.
THIS AGREEMENT, THE FEE LETTER, THE OTHER LOAN
DOCUMENTS, AND ANY SEPARATE LETTER AGREEMENT(S) RELATING TO ANY FEES PAYABLE TO
THE ADMINISTRATIVE AGENT CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES
HERETO AND THERETO REGARDING THE SUBJECT MATTERS HEREOF AND THEREOF AND
SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, ORAL OR WRITTEN, REGARDING
SUCH SUBJECT MATTERS.
SECTION 10.9.
SURVIVAL.
ALL
COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES MADE BY THE BORROWER
HEREIN AND IN THE CERTIFICATES OR OTHER INSTRUMENTS DELIVERED IN CONNECTION WITH
OR PURSUANT TO THIS AGREEMENT SHALL BE CONSIDERED TO HAVE BEEN RELIED UPON BY
THE OTHER PARTIES HERETO AND SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE