HEREOF, OR OTHERWISE) IN A GREATER PROPORTION THAN ANY SUCH
PAYMENT TO AND COLLATERAL RECEIVED BY ANY OTHER LENDER IN RESPECT OF SUCH OTHER
LENDER'S LOANS OR INTEREST THEREON NOT EXPRESSLY PROVIDED HEREBY, SUCH BENEFITED
LENDER SHALL PURCHASE FOR CASH FROM THE OTHER LENDERS SUCH PORTION OF EACH SUCH
OTHER LENDER'S LOANS, OR SHALL PROVIDE SUCH OTHER LENDERS WITH THE BENEFITS OF
ANY SUCH COLLATERAL, OR THE PROCEEDS THEREOF, AS SHALL BE NECESSARY TO CAUSE
SUCH BENEFITED LENDER TO SHARE THE EXCESS PAYMENT OR BENEFITS OF SUCH
141
COLLATERAL OR PROCEEDS RATABLY WITH EACH LENDER EXCEPT TO THE EXTENT EXPRESSLY
PROVIDED HEREBY; 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PURCHASE SHALL BE RESCINDED, AND THE PURCHASE PRICE AND BENEFITS RETURNED, TO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 UNLESS THE BENEFITED LENDER
FROM WHICH SUCH EXCESS PAYMENT IS RECOVERED IS REQUIRED BY COURT ORDER TO PAY
INTEREST THEREON, IN WHICH CASE EACH LENDER RETURNING FUNDS TO SUCH BENEFITED
LENDER SHALL PAY ITS PRO RATA SHARE OF SUCH INTEREST.
THE BORROWER AGREES THAT
EACH LENDER SO PURCHASING A PORTION OF ANOTHER LENDER'S LOANS MAY EXERCISE ALL
RIGHTS OF PAYMENT (INCLUDING, WITHOUT LIMITATION, RIGHTS OF SETOFF) WITH RESPECT
TO SUCH PORTION AS FULLY AS IF SUCH LENDER WERE THE DIRECT HOLDER OF SUCH
PORTION.
(B)
IN ADDITION TO ANY RIGHTS AND REMEDIES OF THE LENDERS PROVIDED BY
LAW, EACH LENDER SHALL HAVE THE RIGHT, WITHOUT PRIOR NOTICE TO THE BORROWER, ANY
SUCH NOTICE BEING EXPRESSLY WAIVED BY THE BORROWER, UPON THE OCCURRENCE AND
DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, TO SETOFF AND APPLY AGAINST ANY
OBLIGATIONS, WHETHER MATURED OR UNMATURED, OF THE BORROWER TO SUCH LENDER, ANY
AMOUNT OWING FROM SUCH LENDER TO THE BORROWER, AT OR AT ANY TIME AFTER, THE
HAPPENING OF ANY OF THE ABOVE-MENTIONED EVENTS, AND THE AFORESAID RIGHT OF
SETOFF MAY BE EXERCISED BY SUCH LENDER AGAINST THE BORROWER OR AGAINST ANY
TRUSTEE IN BANKRUPTCY, DEBTOR IN POSSESSION, ASSIGNEE FOR THE BENEFIT OF
CREDITORS, RECEIVERS, OR EXECUTION, JUDGMENT OR ATTACHMENT CREDITOR OF THE
BORROWER, OR AGAINST ANYONE ELSE CLAIMING THROUGH OR AGAINST, THE BORROWER OR
SUCH TRUSTEE IN BANKRUPTCY, DEBTOR IN POSSESSION, ASSIGNEE FOR THE BENEFIT OF
CREDITORS, RECEIVERS, OR EXECUTION, JUDGMENT OR ATTACHMENT CREDITOR,
NOTWITHSTANDING THE FACT THAT SUCH RIGHT OF SETOFF SHALL NOT HAVE BEEN EXERCISED
BY SUCH LENDER PRIOR TO THE MAKING, FILING OR ISSUANCE, OR SERVICE UPON SUCH
LENDER OF, OR OF NOTICE OF, ANY SUCH PETITION, ASSIGNMENT FOR THE BENEFIT OF
CREDITORS, APPOINTMENT OR APPLICATION FOR THE APPOINTMENT OF A RECEIVER, OR
ISSUANCE OF EXECUTION, SUBPOENA, ORDER OR WARRANT.
EACH LENDER AGREES PROMPTLY
TO NOTIFY THE 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.
(C)
THE BORROWER EXPRESSLY AGREES THAT TO THE EXTENT THE BORROWER
MAKES A PAYMENT