SHOULD THE COMPANY BECOME INSOLVENT OR MAKE AN
ASSIGNMENT FOR THE BENEFIT OF ANY CREDITOR OR CREDITORS OR SHOULD A RECEIVER OR
TRUSTEE BE APPOINTED FOR ALL OR ANY SIGNIFICANT PART OF THE COMPANY'S ASSETS,
AND SHALL CONTINUE TO BE EFFECTIVE OR TO BE REINSTATED, AS THE CASE MAY BE, IF
AT ANY TIME PAYMENT AND PERFORMANCE OF THE OBLIGATIONS, OR ANY PART THEREOF,
PURSUANT TO APPLICABLE LAW, IS RESCINDED OR REDUCED IN AMOUNT, OR MUST OTHERWISE
BE RESTORED OR RETURNED BY ANY OBLIGEE OF THE OBLIGATIONS, WHETHER AS A
"VOIDABLE PREFERENCE," "FRAUDULENT CONVEYANCE," OR OTHERWISE, ALL AS THOUGH SUCH
PAYMENT OR PERFORMANCE HAD NOT BEEN MADE.
IN THE EVENT THAT ANY PAYMENT, OR ANY
PART THEREOF, IS RESCINDED, REDUCED, RESTORED OR RETURNED, THE OBLIGATIONS SHALL
BE REINSTATED AND DEEMED REDUCED ONLY BY SUCH AMOUNT PAID AND NOT SO RESCINDED,
REDUCED, RESTORED OR RETURNED.
12.9
THIS AGREEMENT SHALL BECOME EFFECTIVE WHEN IT SHALL HAVE BEEN
EXECUTED BY THE COMPANY AND THE AGENT AND WHEN THE AGENT SHALL HAVE BEEN
NOTIFIED BY EACH LENDER PARTY TO THIS AGREEMENT AS OF THE DATE HEREOF THAT SUCH
LENDER HAS EXECUTED IT AND THE CLOSING DATE SHALL HAVE OCCURRED AND THEREAFTER
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE COMPANY, THE AGENT AND
EACH SUCH LENDER AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, EXCEPT THAT THE
COMPANY SHALL NOT HAVE THE RIGHT TO ASSIGN, TRANSFER, HYPOTHECATE OR OTHERWISE
CONVEY ITS RIGHTS OR OBLIGATIONS HEREUNDER OR UNDER ANY OF THE LOAN DOCUMENTS OR
ANY INTEREST HEREIN OR THEREIN WITHOUT THE PRIOR WRITTEN CONSENT OF THE AGENT
AND THE LENDERS.
ANY SUCH PURPORTED ASSIGNMENT, TRANSFER, HYPOTHECATION OR
OTHER CONVEYANCE BY THE COMPANY WITHOUT THE PRIOR WRITTEN CONSENT OF THE AGENT
AND THE LENDERS SHALL BE VOID.
THE TERMS AND PROVISIONS OF THIS AGREEMENT ARE
FOR THE PURPOSE OF DEFINING THE RELATIVE RIGHTS AND OBLIGATIONS OF THE COMPANY,
AGENT AND LENDERS WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED THEREBY AND NO
PERSON SHALL BE A THIRD PARTY BENEFICIARY OF ANY OF THE TERMS AND PROVISIONS OF
THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS.
57
12.10
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY
DIFFERENT PARTIES HERETO IN SEPARATE COUNTERPARTS, EACH OF WHICH WHEN SO
EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL
CONSTITUTE ONE AND THE SAME AGREEMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF A
SIGNATURE PAGE TO THIS AGREEMENT BY TELECOPIER SHALL BE EFFECTIVE AS DELIVERY OF
A MANUALLY EXECUTED COUNTERPART OF THIS AGREEMENT.
SECTION 13.
AGREEMENT BETWEEN THE LENDERS.
13.1
(A) THE AGENT, FOR THE ACCOUNT OF THE LENDERS, SHALL DISBURSE ALL
LOANS AND ADVANCES TO THE COMPANY AND SHALL HANDLE ALL COLLECTIONS OF COLLATERAL
AND REPAYMENT OF OBLIGATIONS.
IT IS UNDERSTOOD THAT FOR PURPOSES OF ADVANCES TO
THE COMPANY AND FOR PURPOSES OF THIS SECTION 13 THE AGENT IS USING THE FUNDS OF
THE AGENT.
(B)
EACH LENDER SHALL, BEFORE 11:00 A.M. (PACIFIC TIME) ON THE DATE OF
SUCH ADVANCE,