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 BUYERS OR ANY BRANCH OR
AGENCY THEREOF TO OR FOR THE CREDIT OR THE ACCOUNT OF SELLERS.
ADMINISTRATIVE
AGENT AGREES PROMPTLY TO NOTIFY SELLERS AFTER ANY SUCH SET-OFF AND APPLICATION
MADE BY BUYERS OR
52
ADMINISTRATIVE AGENT; PROVIDED, THAT THE FAILURE TO GIVE SUCH NOTICE SHALL NOT
AFFECT THE VALIDITY OF SUCH SET-OFF AND APPLICATION.
B.
IF ANY BUYER (A "BENEFITED BUYER") SHALL AT ANY TIME RECEIVE ANY
PAYMENT OF ALL OR PART OF THE OBLIGATIONS OWED TO SUCH BUYER, OR PRICE
DIFFERENTIAL IN RESPECT THEREOF, OR RECEIVE ANY ASSETS IN RESPECT THEREOF
(WHETHER VOLUNTARILY OR INVOLUNTARILY, BY SET-OFF, PURSUANT TO EVENTS OR
PROCEEDINGS OF THE NATURE REFERRED TO IN SECTION 15(D), OR OTHERWISE), IN A
GREATER PROPORTION THAN ANY SUCH PAYMENT TO OR ASSET RECEIVED BY ANY OTHER
BUYER, IF ANY, IN RESPECT OF SUCH OTHER BUYER'S TRANSACTIONS, SUCH PRICE
DIFFERENTIAL OR SUCH OTHER OBLIGATIONS, SUCH BENEFITED BUYER SHALL PURCHASE FOR
CASH FROM THE OTHER BUYERS A PARTICIPATING INTEREST IN SUCH PORTION OF EACH SUCH
OTHER BUYER'S TRANSACTIONS, OR SHALL PROVIDE SUCH OTHER BUYERS WITH THE BENEFITS
OF ANY SUCH ASSET, OR THE PROCEEDS THEREOF, AS SHALL BE NECESSARY TO CAUSE SUCH
BENEFITED BUYER TO SHARE THE EXCESS PAYMENT OR BENEFITS OF SUCH ASSET OR
PROCEEDS RATABLY WITH EACH OF THE BUYERS BASED UPON THE RESPECTIVE AGGREGATE
PURCHASE PRICES OF THE TRANSACTIONS HELD BY THEM; PROVIDED, HOWEVER, THAT IF ALL
OR ANY PORTION OF SUCH EXCESS PAYMENT OR BENEFITS IS THEREAFTER RECOVERED FROM
SUCH BENEFITED BUYER, SUCH PURCHASE SHALL BE RESCINDED, AND THE PURCHASE PRICE
AND BENEFITS RETURNED, TO THE EXTENT OF SUCH RECOVERY, BUT WITHOUT INTEREST.
EACH SELLER AGREES THAT EACH BUYER SO PURCHASING A PORTION OF ANOTHER BUYER'S
TRANSACTIONS AND ANY PARTICIPANT MAY EXERCISE ALL RIGHTS OF PAYMENT (INCLUDING,
WITHOUT LIMITATION, RIGHTS OF SET-OFF) WITH RESPECT TO SUCH PORTION AS FULLY AS
IF SUCH BUYER WERE THE DIRECT HOLDER OF SUCH PORTION.
24.
BINDING EFFECT; GOVERNING LAW; JURISDICTION
A.
THIS AGREEMENT SHALL BE BINDING AND INURE TO THE BENEFIT OF THE
PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS.
EACH
SELLER ACKNOWLEDGES THAT THE OBLIGATIONS OF BUYERS AND ADMINISTRATIVE AGENT
HEREUNDER OR OTHERWISE ARE NOT THE SUBJECT OF ANY GUARANTY BY, OR RECOURSE TO,
ANY DIRECT OR INDIRECT PARENT OR OTHER AFFILIATE OF BUYERS OR ADMINISTRATIVE
AGENT.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY,
THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF.
B.
EACH SELLER HEREBY WAIVES TRIAL BY JURY.
EACH SELLER HEREBY
IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF
NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS IN ANY ACTION