THIS AGREEMENT IS DEEMED TO BE INVALID BY REASON OF
THE OPERATION OF ANY LAW OR BY REASON OF THE INTERPRETATION PLACED THEREON BY
ANY COURT, THIS AGREEMENT SHALL BE CONSTRUED AS NOT CONTAINING SUCH PROVISION,
THE INVALIDITY OF SUCH PROVISION WILL NOT AFFECT THE VALIDITY OF ANY OTHER
PROVISION OF THIS AGREEMENT AND ALL OTHER PROVISIONS OF THIS AGREEMENT WHICH ARE
OTHERWISE LAWFUL AND VALID SHALL REMAIN IN FULL FORCE AND EFFECT.
(M)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED
IN MULTIPLE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL, AND
ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE
30
AND THE SAME INSTRUMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF THIS AGREEMENT
BY FACSIMILE OR ELECTRONIC MAIL SHALL BE EQUALLY AS EFFECTIVE AS DELIVERY OF AN
ORIGINAL EXECUTED COUNTERPART OF THIS AGREEMENT.
(N)
SETOFF.
EACH OF THE SELLERS HEREBY AGREES
THAT PURCHASER IS AUTHORIZED AT ANY TIME OR FROM TIME TO TIME, UPON TEN
(10) BUSINESS DAYS WRITTEN NOTICE TO THE SELLER PARENT (OR ONE (1) BUSINESS DAY
NOTICE IF THE TERMINATION DATE HAS OCCURRED), TO SETOFF AND TO APPROPRIATE AND
APPLY ANY AND ALL AMOUNTS HELD BY PURCHASER FOR THE ACCOUNT OF THE SELLERS
(INCLUDING, WITHOUT LIMITATION, ANY DEFERRED PURCHASE PRICE OR MANAGEMENT FEE)
AGAINST AND ON ACCOUNT OF ANY AMOUNTS DUE AND OWING TO PURCHASER BY ANY SELLER
AT ANY TIME, INCLUDING, WITHOUT LIMITATION, AMOUNTS DUE AND OWING TO PURCHASER
PURSUANT TO SECTIONS 3(D), 8, 9 OR 14 OF THIS AGREEMENT OR OTHERWISE UNDER THE
OTHER TRANSACTION DOCUMENTS.
(O)
JOINT AND SEVERAL LIABILITY.
EACH OF THE
SELLERS HEREBY AGREE THAT THE OBLIGATIONS OF THE SELLERS UNDER THIS AGREEMENT
AND THE OTHER TRANSACTION DOCUMENTS SHALL BE JOINT AND SEVERAL AND SHALL, TO THE
FULLEST EXTENT PERMITTED BY LAW, BE UNCONDITIONAL IRRESPECTIVE OF (I) THE
VALIDITY OR ENFORCEABILITY, AVOIDANCE OR SUBORDINATION OF THE OBLIGATIONS OF THE
OTHER SELLERS OR OF ANY DOCUMENT EVIDENCING ALL OR ANY PART OF THE OBLIGATIONS
OF THE OTHER SELLERS, (II) THE ABSENCE OF ANY ATTEMPT TO COLLECT THE OBLIGATIONS
FROM THE OTHER SELLERS OR ANY OTHER SECURITY THEREFOR, OR THE ABSENCE OF ANY
OTHER ACTION TO ENFORCE THE SAME, (III) THE WAIVER, CONSENT, EXTENSION,
FORBEARANCE OR GRANTING OF ANY INDULGENCE BY PURCHASER WITH RESPECT TO THE
OBLIGATIONS OF THE OTHER SELLERS, OR ANY PART THEREOF, OR ANY OTHER AGREEMENT
NOW OR HEREAFTER EXECUTED BY THE OTHER SELLERS AND DELIVERED TO PURCHASER,
(IV) THE FAILURE BY PURCHASER TO TAKE ANY STEPS TO PERFECT AND MAINTAIN ITS
INTERESTS IN, OR TO PRESERVE ITS RIGHTS TO, ANY SECURITY FOR THE OBLIGATIONS OF
THE OTHER SELLERS OR ANY PURCHASED ASSET, OR (V) ANY OTHER CIRCUMSTANCES WHICH
MIGHT CONSTITUTE A LEGAL OR EQUITABLE DISCHARGE OR DEFENSE OF A SELLER.
WITH
RESPECT TO EACH SELLER'S OBLIGATIONS ARISING AS A RESULT OF THE JOINT AND
SEVERAL LIABILITY OF THE SELLERS UNDER THE TRANSACTION DOCUMENTS, EACH SELLER
HEREBY WAIVES, UNTIL THE EARLIER OF THE FINAL LIQUIDATION DATE AND THE DATE ON
WHICH THE TERMINATION OPTION IS CONSUMMATED, ANY RIGHT TO