This excerpt taken from the CLX 10-K filed Aug 25, 2009.
Sharing of Set-Offs. Each Bank agrees that if it shall, by exercising any right of set-off or counterclaim or otherwise, receive payment of a proportion of the aggregate amount of principal and interest due with respect to the Loans and Letter of Credit Liabilities held by it which is greater than the proportion received by any other Bank in respect of the aggregate amount of principal and interest due with respect to the Loans and Letter of Credit Liabilities held by such other Bank, the Bank receiving such proportionately greater payment shall purchase such participations in the Loans and Letter of Credit Liabilities held by the other Banks (other than any Defaulting Banks during the related Default Period), and such other adjustments shall be made, as may be required so that all such payments of principal and interest with respect to the Loans and Letter of Credit Liabilities held by the Banks shall be shared by the Banks (other than any Defaulting Banks during the related Default Period) pro rata; provided that nothing in this Section shall impair the right of any Bank to exercise any right of set-off or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of the Borrower other than its indebtedness hereunder. The Borrower agrees, to the fullest extent it may effectively do so under applicable law, that any holder of a participation in a Loan or Letter of Credit, whether or not acquired pursuant to the foregoing arrangements, may exercise rights of set-off or counterclaim and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of the Borrower in the amount of such participation.
(j) The Commitment Schedule is deleted in its entirety and replaced with the Commitment Schedule attached hereto.
SECTION 3. Effective Date; Conditions to Effectiveness. This Amendment shall become effective as of the date hereof, subject to the satisfaction of each of the following conditions precedent:
(a) This Amendment shall have been executed and delivered by the Borrower, the Required Banks and Lehman Brothers Bank, FSB;
(b) The representations and warranties in Section 5 below shall be true and correct; and
(c) All costs and expenses of the Administrative Agents, including the reasonable fees of Shearman & Sterling LLP as joint special counsel for the Administrative Agents, invoiced to the Borrower on or prior to April 2, 2009 shall have been paid.
SECTION 4. Continuing Effect. Except solely with respect to the matters described in Section 2, this Amendment shall not limit or otherwise adversely affect the rights of the Banks, the Administrative Agents and the Servicing Agent under the Credit Agreement. Except solely with respect to the matters described in Section 2, the Banks, the Administrative Agents and the Servicing Agent reserve the right to insist on strict compliance with the terms of the Credit Agreement. This Amendment will not, either alone or taken with other waivers of provisions of the Credit Agreement, be deemed to create or be evidence of a course of conduct. Any future or additional waiver of any provision of the Credit Agreement shall be effective only if set forth in a writing separate and distinct from this Amendment and executed pursuant to Section 9.05 of the Credit Agreement. From and after the effectiveness of this Amendment, the Credit Agreement shall remain in full force and effect, without amendment or modification.
SECTION 5. Representations and Warranties. The Borrower represents and warrants that (a) this Amendment has been duly authorized by the Borrower, (b) each person executing this Amendment on behalf of the Borrower has all requisite power and authority to execute this Amendment, (c) this Amendment is its legal, valid and binding obligation, enforceable against it in accordance with its terms and (d) after giving effect to this Amendment, no Default or Event of Default exists under the Credit Agreement.
SECTION 6. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 7. Binding Effect. This Amendment shall be binding upon, inure to the benefit of and be enforceable by the Borrower, the Banks, the Administrative Agents and the Servicing Agent and their respective successors and permitted assigns.
SECTION 8. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all such separate counterparts shall together constitute one and the same agreement.
SECTION 9. Further References. On and after the effective date of this Amendment, (i) each reference in the Credit Agreement to this Agreement, hereunder, hereof or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment. The Credit Agreement, as amended by this Amendment, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Banks under the Credit Agreement or constitute a waiver of any provision of any of the foregoing.