PROPERTY OF ANY BORROWER, ARE
HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY EACH BORROWER.
(B)
IF ANY LENDER SHALL, BY EXERCISING ANY RIGHT
OF SETOFF OR COUNTERCLAIM OR OTHERWISE, OBTAIN PAYMENT IN RESPECT OF ANY
PRINCIPAL OF OR INTEREST ON ANY OF ITS LOANS OR OTHER OBLIGATIONS HEREUNDER
RESULTING IN SUCH LENDER'S RECEIVING PAYMENT OF A PROPORTION OF THE AGGREGATE
PRINCIPAL AMOUNT OF ITS LOANS AND ACCRUED INTEREST THEREON OR OTHER SUCH
OBLIGATIONS GREATER THAN ITS PRO RATA SHARE THEREOF AS PROVIDED HEREIN, THEN THE
LENDER RECEIVING SUCH GREATER PROPORTION SHALL (I) NOTIFY THE ADMINISTRATIVE
AGENT OF SUCH FACT, AND (II) PURCHASE (FOR CASH AT FACE VALUE) PARTICIPATIONS IN
THE LOANS AND SUCH OTHER OBLIGATIONS OF THE OTHER LENDERS, OR MAKE SUCH OTHER
ADJUSTMENTS AS SHALL BE EQUITABLE, SO THAT THE BENEFIT OF ALL SUCH PAYMENTS
SHALL BE SHARED BY THE LENDERS RATABLY IN ACCORDANCE WITH THE AGGREGATE AMOUNT
OF PRINCIPAL OF AND ACCRUED INTEREST ON THEIR RESPECTIVE LOANS AND OTHER AMOUNTS
OWING THEM, PROVIDED THAT:
(I)
IF ANY SUCH PARTICIPATIONS ARE PURCHASED
AND ALL OR ANY PORTION OF THE PAYMENT GIVING RISE THERETO IS RECOVERED, SUCH
PARTICIPATIONS SHALL BE RESCINDED AND THE PURCHASE PRICE RESTORED TO THE EXTENT
OF SUCH RECOVERY, WITHOUT INTEREST; AND
(II)
THE PROVISIONS OF THIS PARAGRAPH SHALL NOT
BE CONSTRUED TO APPLY TO (A) ANY PAYMENT MADE BY THE BORROWERS PURSUANT TO AND
IN ACCORDANCE WITH THE EXPRESS TERMS OF THIS AGREEMENT OR (B) ANY PAYMENT
OBTAINED BY A LENDER AS CONSIDERATION FOR THE ASSIGNMENT OF OR SALE OF A
PARTICIPATION IN ANY OF ITS LOANS TO ANY ASSIGNEE OR PARTICIPANT, OTHER THAN TO
THE CREDIT PARTIES OR ANY SUBSIDIARY OR AFFILIATE THEREOF (AS TO WHICH THE
PROVISIONS OF THIS PARAGRAPH SHALL APPLY).
(C)
EACH CREDIT PARTY CONSENTS TO THE FOREGOING
AND AGREES, TO THE EXTENT IT MAY EFFECTIVELY DO SO UNDER REQUIREMENTS OF LAW,
THAT ANY LENDER ACQUIRING A PARTICIPATION PURSUANT TO THE FOREGOING ARRANGEMENTS
MAY EXERCISE AGAINST EACH CREDIT PARTY RIGHTS OF SETOFF AND COUNTERCLAIM WITH
RESPECT TO SUCH PARTICIPATION AS FULLY AS IF SUCH LENDER WERE A DIRECT CREDITOR
OF EACH CREDIT PARTY IN THE AMOUNT OF SUCH PARTICIPATION.
122
SECTION 10.8
TABLE OF CONTENTS AND SECTION HEADINGS.
The table of contents and the Section and subsection headings herein are
intended for convenience only and shall be ignored in construing this Agreement.
SECTION 10.9
COUNTERPARTS; INTEGRATION;
EFFECTIVENESS; ELECTRONIC EXECUTION.
(A)
COUNTERPARTS; INTEGRATION; EFFECTIVENESS.
THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS (AND BY DIFFERENT PARTIES HERETO
IN DIFFERENT COUNTERPARTS), EACH OF WHICH SHALL CONSTITUTE AN ORIGINAL, BUT ALL
OF WHICH WHEN TAKEN TOGETHER SHALL CONSTITUTE A SINGLE CONTRACT.
THIS AGREEMENT
AND THE OTHER CREDIT DOCUMENTS, AND ANY SEPARATE LETTER AGREEMENTS WITH RESPECT
TO FEES PAYABLE TO THE ADMINISTRATIVE AGENT, CONSTITUTE THE ENTIRE CONTRACT
AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY AND
ALL PREVIOUS AGREEMENTS AND UNDERSTANDINGS, ORAL OR WRITTEN, RELATING TO THE
SUBJECT MATTER HEREOF.
EXCEPT AS PROVIDED IN SECTION 4.1, THIS AGREEMENT SHALL
BECOME EFFECTIVE WHEN