time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by Agent, Issuing Bank, such Lender or such Affiliate to or for the
credit or the account of an Obligor against any Obligations, irrespective of
whether or not Agent, Issuing Bank, such Lender or such Affiliate shall have
made any demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured or are owed to a branch or
office of Agent, Issuing Bank, such Lender or such Affiliate different from the
branch or office holding such deposit or obligated on such indebtedness.
The
rights of Agent, Issuing Bank, each Lender and each such Affiliate under this
Section are in addition to other rights and remedies (including other rights of
setoff) that such Person may have.
97
11.5
Remedies Cumulative; No Waiver.
11.5.1
CUMULATIVE RIGHTS.
ALL COVENANTS, CONDITIONS, PROVISIONS,
WARRANTIES, GUARANTIES, INDEMNITIES AND OTHER UNDERTAKINGS OF OBLIGORS CONTAINED
IN THE LOAN DOCUMENTS ARE CUMULATIVE AND NOT IN DEROGATION OR SUBSTITUTION OF
EACH OTHER.
IN PARTICULAR, THE RIGHTS AND REMEDIES OF AGENT AND LENDERS ARE
CUMULATIVE, MAY BE EXERCISED AT ANY TIME AND FROM TIME TO TIME, CONCURRENTLY OR
IN ANY ORDER, AND SHALL NOT BE EXCLUSIVE OF ANY OTHER RIGHTS OR REMEDIES THAT
AGENT AND LENDERS MAY HAVE, WHETHER UNDER ANY AGREEMENT, BY LAW, AT EQUITY OR
OTHERWISE.
ALL RIGHTS AND REMEDIES SHALL CONTINUE IN FULL FORCE AND EFFECT
UNTIL FULL PAYMENT OF ALL OBLIGATIONS.
11.5.2
WAIVERS.
NO WAIVER OR COURSE OF DEALING SHALL BE ESTABLISHED BY
(A) THE FAILURE OR DELAY OF AGENT OR ANY LENDER TO REQUIRE STRICT PERFORMANCE BY
BORROWERS WITH ANY TERMS OF THE LOAN DOCUMENTS, OR TO EXERCISE ANY RIGHTS OR
REMEDIES WITH RESPECT TO COLLATERAL OR OTHERWISE; (B) THE MAKING OF ANY LOAN OR
ISSUANCE OF ANY LETTER OF CREDIT DURING A DEFAULT, EVENT OF DEFAULT OR OTHER
FAILURE TO SATISFY ANY CONDITIONS PRECEDENT; OR (C) ACCEPTANCE BY AGENT OR ANY
LENDER OF PERFORMANCE BY ANY OBLIGOR UNDER ANY LOAN DOCUMENTS IN A MANNER OTHER
THAN THAT SPECIFIED THEREIN.
IT IS EXPRESSLY ACKNOWLEDGED BY BORROWERS THAT ANY
FAILURE TO SATISFY A FINANCIAL COVENANT ON A MEASUREMENT DATE SHALL NOT BE CURED
OR REMEDIED BY SATISFACTION OF SUCH COVENANT ON A SUBSEQUENT DATE.
SECTION 12.
AGENT
12.1
Appointment, Authority and Duties of Agent.
12.1.1
APPOINTMENT AND AUTHORITY.
EACH LENDER APPOINTS AND DESIGNATES BANK
OF AMERICA AS AGENT HEREUNDER.
AGENT MAY, AND EACH LENDER AUTHORIZES AGENT TO,
ENTER INTO ALL LOAN DOCUMENTS TO WHICH AGENT IS INTENDED TO BE A PARTY AND
ACCEPT ALL SECURITY DOCUMENTS, FOR AGENT'S BENEFIT AND THE PRO RATA BENEFIT OF
LENDERS.
EACH LENDER AGREES THAT ANY ACTION TAKEN BY AGENT OR REQUIRED LENDERS
IN ACCORDANCE WITH THE PROVISIONS OF THE LOAN DOCUMENTS, AND THE EXERCISE BY
AGENT OR REQUIRED LENDERS OF ANY RIGHTS OR REMEDIES SET FORTH THEREIN, TOGETHER
WITH ALL OTHER POWERS REASONABLY INCIDENTAL THERETO, SHALL BE AUTHORIZED BY AND