SECTION 2.17. SHARING OF SETOFFS AND REALIZATION OF SECURITY.
EXCEPT TO THE
EXTENT THAT THIS AGREEMENT PROVIDES FOR PAYMENTS TO BE DISPROPORTIONALLY
ALLOCATED TO OR RETAINED BY A PARTICULAR LENDER OR GROUP OF LENDERS (INCLUDING
IN CONNECTION WITH PURCHASES OF TERM LOANS OR OTHER TERM LOANS PURSUANT TO
PURCHASE OFFERS CONTEMPLATED BY SECTION 2.23, EXCHANGES OF TERM LOANS OR OTHER
TERM LOANS PURSUANT TO PERMITTED DEBT EXCHANGES PURSUANT TO SECTION 2.24 AND THE
PAYMENT OF INTEREST OR FEES AT DIFFERENT RATES AND REPAYMENT OF PRINCIPAL
AMOUNTS OF TERM LOANS OR OTHER TERM LOANS AT DIFFERENT TIMES AS A RESULT OF
EXTENSIONS PERMITTED UNDER SECTION 2.25), EACH LENDER AGREES THAT IF IT SHALL
THROUGH THE EXERCISE OF A RIGHT OF BANKER'S LIEN, COMBINATION OF ACCOUNTS,
SETOFF OR COUNTERCLAIM AGAINST ANY LOAN PARTY, OR PURSUANT TO A SECURED CLAIM
UNDER ANY APPLICABLE INSOLVENCY LAW OR OTHER SECURITY OR INTEREST ARISING FROM,
OR IN LIEU OF, SUCH SECURED CLAIM, RECEIVED BY SUCH LENDER UNDER ANY APPLICABLE
INSOLVENCY LAW OR OTHERWISE, OR BY ANY OTHER MEANS, OBTAIN PAYMENT (VOLUNTARY OR
INVOLUNTARY) IN RESPECT OF ANY LOANS AND ACCRUED INTEREST THEREON AS A RESULT OF
WHICH THE UNPAID PRINCIPAL PORTION OF ITS LOANS AND ACCRUED INTEREST THEREON
SHALL BE PROPORTIONATELY LESS THAN THE UNPAID PRINCIPAL PORTION OF THE LOANS AND
ACCRUED INTEREST THEREON OF ANY OTHER LENDER (OR OTHER LENDER WITH THE SAME
PAYMENT ENTITLEMENTS AS SUCH LENDER), SUCH LENDER SHALL BE DEEMED SIMULTANEOUSLY
TO HAVE PURCHASED FROM SUCH OTHER LENDER AT FACE VALUE, AND SHALL PROMPTLY PAY
TO SUCH OTHER LENDER THE PURCHASE PRICE FOR, A PARTICIPATION IN THE LOANS AND
ACCRUED INTEREST THEREON OF SUCH OTHER LENDER, SO THAT THE BENEFIT OF ALL SUCH
PAYMENTS SHALL BE SHARED BY THE RELEVANT LENDERS RATABLY IN ACCORDANCE WITH THE
AGGREGATE AMOUNT OF THE PRINCIPAL OF AND ACCRUED INTEREST ON THEIR RESPECTIVE
LOANS; PROVIDED, HOWEVER, THAT IF ANY SUCH PURCHASE OR PURCHASES OR ADJUSTMENTS
SHALL BE MADE PURSUANT TO THIS SECTION 2.17 AND THE PAYMENT GIVING RISE THERETO
SHALL THEREAFTER BE RECOVERED, SUCH PURCHASE OR PURCHASES OR ADJUSTMENTS SHALL
BE RESCINDED TO THE EXTENT OF SUCH RECOVERY
52
AND THE PURCHASE PRICE OR PRICES OR ADJUSTMENT RESTORED WITHOUT INTEREST.
THE
BORROWER EXPRESSLY CONSENTS TO THE FOREGOING ARRANGEMENTS AND AGREES THAT ANY
LENDER HOLDING A PARTICIPATION PURSUANT TO THE FOREGOING ARRANGEMENTS MAY,
SUBJECT TO THE TERMS OF SECTION 9.06, EXERCISE ANY AND ALL RIGHTS OF BANKER'S
LIEN, COMBINATION OF ACCOUNTS OR SETOFF WITH RESPECT TO ANY AND ALL MONEYS OWING
BY THE LOAN PARTIES TO SUCH LENDER BY REASON THEREOF AS FULLY AS IF SUCH LENDER
WERE A DIRECT CREDITOR OF THE BORROWER IN THE AMOUNT OF SUCH PARTICIPATION.
SECTION 2.18. PAYMENTS.
(A)
THE BORROWER SHALL MAKE EACH PAYMENT (INCLUDING
PAYMENT OF PRINCIPAL OF OR INTEREST ON ANY LOAN OR ANY FEES) HEREUNDER AND UNDER
ANY OTHER LOAN DOCUMENT NOT LATER THAN 12:00 NOON, NEW YORK CITY TIME, ON THE
DATE WHEN DUE IN IMMEDIATELY AVAILABLE FUNDS, WITHOUT DEFENSE, SETOFF OR
COUNTERCLAIM.
ALL PAYMENTS HEREUNDER OF