TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE
LAW AT ANY TIME OR FROM TIME TO TIME, WITHOUT REGARD TO THE EXISTENCE,
SUFFICIENCY OR ADEQUACY OF ANY OTHER COLLATERAL, AND WITHOUT NOTICE OR
COMPLIANCE WITH ANY OTHER CONDITION PRECEDENT NOW OR HEREAFTER IMPOSED BY
STATUTE, RULE OF LAW OR OTHERWISE, ALL OF WHICH ARE HEREBY WAIVED TO THE FULLEST
EXTENT PERMITTED BY LAW, BE SET OFF, APPROPRIATED AND APPLIED BY AGENT AGAINST
ANY OR ALL OF THE OBLIGATIONS IRRESPECTIVE OF WHETHER DEMAND SHALL HAVE BEEN
MADE, IN SUCH MANNER AS AGENT IN ITS SOLE AND ABSOLUTE DISCRETION MAY
DETERMINE.
WITHIN THREE (3) BUSINESS DAYS OF MAKING ANY SUCH SET OFF,
APPROPRIATION OR APPLICATION, AGENT AGREES TO NOTIFY BORROWER THEREOF, PROVIDED
THE FAILURE TO GIVE SUCH NOTICE SHALL NOT AFFECT THE VALIDITY OF SUCH SET OFF OR
APPROPRIATION OR APPLICATION.
ANY AND ALL RIGHTS TO REQUIRE AGENT OR ANY OF THE
LENDERS TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO
SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
9
11.
PRIVATE SALES.
A.
BORROWER RECOGNIZES THAT AGENT MAY BE
UNABLE TO EFFECT A PUBLIC SALE OF ANY OR ALL THE PLEDGED INTERESTS, BY REASON OF
CERTAIN PROHIBITIONS CONTAINED IN THE SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE SECURITIES LAWS OR OTHERWISE, AND MAY BE COMPELLED TO RESORT TO
ONE OR MORE PRIVATE SALES THEREOF TO A RESTRICTED GROUP OF PURCHASERS WHICH WILL
BE OBLIGED TO AGREE, AMONG OTHER THINGS, TO ACQUIRE SUCH SECURITIES FOR THEIR
OWN ACCOUNT FOR INVESTMENT AND NOT WITH A VIEW TO THE DISTRIBUTION OR RESALE
THEREOF.
BORROWER ACKNOWLEDGES AND AGREES THAT ANY SUCH PRIVATE SALE MAY RESULT
IN PRICES AND OTHER TERMS LESS FAVORABLE TO AGENT THAN IF SUCH SALE WERE A
PUBLIC SALE.
AGENT SHALL BE UNDER NO OBLIGATION TO DELAY A SALE OF ANY OF THE
PLEDGED INTERESTS FOR THE PERIOD OF TIME NECESSARY TO PERMIT BORROWER TO
REGISTER SUCH SECURITIES FOR PUBLIC SALE UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER APPLICABLE STATE SECURITIES LAWS, EVEN IF BORROWER WOULD AGREE
TO DO SO.
B.
BORROWER FURTHER AGREES TO USE ITS
REASONABLE EFFORTS TO DO OR CAUSE TO BE DONE ALL SUCH OTHER ACTS AS MAY BE
NECESSARY TO MAKE ANY SALE OR SALES OF ALL OR ANY PORTION OF THE PLEDGED
INTERESTS PURSUANT TO THIS PARAGRAPH 11 VALID AND BINDING AND IN COMPLIANCE WITH
ANY AND ALL OTHER APPLICABLE REQUIREMENTS OF LAW; PROVIDED, HOWEVER, THAT
BORROWER SHALL BE UNDER NO OBLIGATION TO REGISTER THE PLEDGED INTERESTS FOR
PUBLIC SALE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER APPLICABLE
STATE SECURITIES LAWS.
BORROWER FURTHER AGREES THAT A BREACH OF ANY OF THE
COVENANTS CONTAINED IN THIS PARAGRAPH 11 WILL CAUSE IRREPARABLE INJURY TO AGENT,
THAT AGENT HAS NO ADEQUATE REMEDY AT LAW IN RESPECT OF SUCH BREACH AND, AS A
CONSEQUENCE, THAT EACH