OF ALL OR PART
OF THE OBLIGATIONS OWING TO IT, OR RECEIVE ANY COLLATERAL IN RESPECT THEREOF
(WHETHER VOLUNTARILY OR INVOLUNTARILY, BY SET-OFF, PURSUANT TO EVENTS OR
PROCEEDINGS OF THE NATURE REFERRED TO IN SECTION 8.1(F), OR OTHERWISE), IN A
GREATER PROPORTION THAN ANY SUCH PAYMENT TO OR COLLATERAL RECEIVED BY ANY OTHER
LENDER, IF ANY, IN RESPECT OF THE OBLIGATIONS OWING TO SUCH OTHER LENDER, SUCH
BENEFITED LENDER SHALL PURCHASE FOR CASH FROM THE OTHER LENDERS A PARTICIPATING
INTEREST IN SUCH PORTION OF THE OBLIGATIONS OWING TO EACH SUCH OTHER LENDER, OR
SHALL PROVIDE SUCH OTHER LENDERS WITH THE BENEFITS OF ANY SUCH COLLATERAL, AS
SHALL BE NECESSARY TO CAUSE SUCH BENEFITED LENDER TO SHARE THE EXCESS PAYMENT OR
BENEFITS OF SUCH COLLATERAL RATABLY WITH EACH OF THE LENDERS; PROVIDED, HOWEVER,
THAT IF ALL OR ANY PORTION OF SUCH EXCESS PAYMENT OR BENEFITS IS THEREAFTER
RECOVERED FROM SUCH BENEFITED LENDER, SUCH PURCHASE SHALL BE RESCINDED, AND THE
PURCHASE PRICE AND BENEFITS RETURNED, TO THE EXTENT OF SUCH RECOVERY, BUT
WITHOUT INTEREST.
(B)
IN ADDITION TO ANY RIGHTS AND REMEDIES OF
THE LENDERS PROVIDED BY LAW, EACH LENDER SHALL HAVE THE RIGHT, WITHOUT PRIOR
NOTICE TO ANY BORROWER, ANY SUCH NOTICE BEING EXPRESSLY WAIVED BY THE BORROWERS
TO THE EXTENT PERMITTED BY APPLICABLE LAW, UPON ANY AMOUNT BECOMING DUE AND
PAYABLE AFTER ALL APPLICABLE GRACE PERIODS 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 ANY BORROWER, AS THE CASE MAY BE.
EACH LENDER AGREES PROMPTLY TO
NOTIFY THE PARENT BORROWER AND THE ADMINISTRATIVE AGENT AFTER ANY SUCH SETOFF
AND APPLICATION MADE BY SUCH LENDER, PROVIDED THAT THE FAILURE TO GIVE SUCH
NOTICE SHALL NOT AFFECT THE VALIDITY OF SUCH SETOFF AND APPLICATION.
10.8
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED BY
ONE OR MORE OF THE PARTIES TO THIS AGREEMENT ON ANY NUMBER OF SEPARATE
COUNTERPARTS, AND ALL OF SAID COUNTERPARTS TAKEN TOGETHER SHALL BE DEEMED TO
CONSTITUTE ONE AND THE SAME INSTRUMENT.
DELIVERY OF AN EXECUTED SIGNATURE
PAGE OF THIS AGREEMENT BY FACSIMILE TRANSMISSION SHALL BE EFFECTIVE AS DELIVERY
OF A MANUALLY EXECUTED COUNTERPART HEREOF.
A SET OF THE COPIES OF THIS
AGREEMENT SIGNED BY ALL THE PARTIES SHALL BE LODGED WITH THE PARENT BORROWER,
THE ADMINISTRATIVE AGENT AND THE CANADIAN AGENT.
10.9
SEVERABILITY.
ANY PROVISION OF THIS AGREEMENT
THAT 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
110
IN ANY JURISDICTION SHALL NOT INVALIDATE