INTEREST. THE BORROWERS AGREE THAT EACH LENDER SO
PURCHASING A PORTION OF ANOTHER LENDER'S LOAN MAY EXERCISE ALL RIGHTS OF PAYMENT
(INCLUDING, WITHOUT LIMITATION, RIGHTS OF SET-OFF) WITH RESPECT TO SUCH PORTION
AS FULLY AS IF SUCH LENDER WERE THE DIRECT HOLDER OF SUCH PORTION.
IN ADDITION TO ANY RIGHTS AND REMEDIES OF THE LENDERS PROVIDED BY LAW, EACH
LENDER SHALL HAVE THE RIGHT, WITHOUT PRIOR NOTICE TO THE BORROWERS, ANY SUCH
NOTICE BEING EXPRESSLY WAIVED BY THE BORROWERS TO THE EXTENT PERMITTED BY
APPLICABLE LAW, UPON ANY AMOUNT BECOMING DUE AND PAYABLE BY THE BORROWERS
HEREUNDER (WHETHER AT THE STATED MATURITY, BY ACCELERATION OR OTHERWISE) TO
SET-OFF AND APPROPRIATE AND APPLY AGAINST SUCH AMOUNT ANY AND ALL DEPOSITS
(GENERAL OR SPECIAL, TIME OR DEMAND, PROVISIONAL OR FINAL), IN ANY CURRENCY, AND
ANY OTHER CREDITS, INDEBTEDNESS OR CLAIMS, IN ANY CURRENCY, IN EACH CASE WHETHER
DIRECT OR INDIRECT, ABSOLUTE OR CONTINGENT, MATURED OR UNMATURED, AT ANY TIME
HELD OR OWING BY SUCH LENDER OR ANY BRANCH OR AGENCY THEREOF TO OR FOR THE
CREDIT OR THE ACCOUNT OF THE BORROWERS.
EACH LENDER AGREES PROMPTLY TO NOTIFY
THE BORROWERS AND THE ADMINISTRATIVE AGENT AFTER ANY SUCH SET-OFF AND
APPLICATION MADE BY SUCH LENDER, PROVIDED THAT THE FAILURE TO GIVE SUCH NOTICE
SHALL NOT AFFECT THE VALIDITY OF SUCH SET-OFF AND APPLICATION,
75
COUNTERPARTS.
This Agreement may be executed by one or more of the parties to this Agreement
on any number of separate counterparts (including by facsimile transmission of
signature pages hereto), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrowers and the
Administrative Agent.
SEVERABILITY.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
AMENDMENT AND RESTATEMENT; INTEGRATION.
ACKNOWLEDGMENT OF EXISTING LOAN INDEBTEDNESS.
THE BORROWERS ACKNOWLEDGE THAT AS
OF SEPTEMBER 29, 2006, THE BORROWERS WERE INDEBTED TO LENDERS (EXCLUSIVE OF
CONTINGENT REIMBURSEMENT OBLIGATIONS AND ACCRUED, BUT UNPAID INTEREST) IN THE
AMOUNT OF $8,103,559.07 (AFTER TAKING INTO ACCOUNT THE FUNDS HELD BY THE
ADMINISTRATIVE AGENT FOR THE ACCOUNT OF THE BORROWERS) PLUS FEES AND COSTS
PROVIDED FOR IN THE EXISTING LOAN DOCUMENTS (THE "EXISTING LOAN INDEBTEDNESS").
THE BORROWERS FURTHER ACKNOWLEDGE THAT THE EXISTING LOAN INDEBTEDNESS IS OWING
TO LENDERS WITHOUT SETOFF, RECOUPMENT, DEFENSE, DEDUCTION, COUNTERCLAIM, CREDIT,
ALLOWANCE OR ADJUSTMENT, WHETHER IN LAW OR EQUITY, OF ANY NATURE OR KIND.
ACKNOWLEDGMENT AND RELEASE.
EACH LOAN PARTY ACKNOWLEDGES AND AGREES THAT THE
ADMINISTRATIVE AGENT AND EACH LENDER FULLY PERFORMED ALL OF THEIR OBLIGATIONS
UNDER THE EXISTING CREDIT AGREEMENT AND THE EXISTING LOAN DOCUMENTS.
EACH LOAN
PARTY ALSO ACKNOWLEDGES AND AGREES THAT THE ACTIONS TAKEN BY THE ADMINISTRATIVE
AGENT AND