TRANSACTIONS, ANY LOAN OR THE USE OF THE PROCEEDS
THEREOF.
9.6.
Adjustments; Setoff.
Notwithstanding Section
8.9(b), if an Event of Default shall have occurred and be continuing, each
Lender is hereby authorized at any time and from time to time, except to the
extent prohibited by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of Borrower against any of and all the obligations of Borrower now or
hereafter existing under this Agreement and other Loan Documents held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement or such other Loan Document and although such obligations
may be unmatured.
The rights of each Lender under this Section 9.6 are in
addition to other rights and remedies (including other rights of setoff) which
such Lender may have.
9.7.
Governing Law.
THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE CONFLICT
57
OF LAW RULES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
9.8.
Waivers; Amendment.
(A)
NO FAILURE OR DELAY ON THE PART OF THE AGENT
OR ANY LENDER IN EXERCISING ANY POWER OR RIGHT HEREUNDER OR UNDER ANY OTHER LOAN
DOCUMENT SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL
EXERCISE OF ANY SUCH RIGHT OR POWER, OR ANY ABANDONMENT OR DISCONTINUANCE OF
STEPS TO ENFORCE SUCH A RIGHT OR POWER, PRECLUDE ANY OTHER OR FURTHER EXERCISE
THEREOF OR THE EXERCISE OF ANY OTHER RIGHT OR POWER.
THE RIGHTS AND REMEDIES OF
THE AGENT AND THE LENDERS HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS ARE
CUMULATIVE AND ARE NOT EXCLUSIVE OF ANY RIGHTS OR REMEDIES THAT THEY WOULD
OTHERWISE HAVE.
NO WAIVER OF ANY PROVISION OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR CONSENT TO ANY DEPARTURE BY BORROWER OR ANY OTHER CREDIT PARTY
THEREFROM SHALL IN ANY EVENT BE EFFECTIVE UNLESS THE SAME SHALL BE PERMITTED BY
SECTION 9.8(B), AND THEN SUCH WAIVER OR CONSENT SHALL BE EFFECTIVE ONLY IN THE
SPECIFIC INSTANCE AND FOR THE PURPOSE FOR WHICH GIVEN.
NO NOTICE OR DEMAND ON
BORROWER IN ANY CASE SHALL ENTITLE BORROWER TO ANY OTHER OR FURTHER NOTICE OR
DEMAND IN SIMILAR OR OTHER CIRCUMSTANCES.
(B)
NEITHER THIS AGREEMENT NOR ANY PROVISION
HEREOF MAY BE WAIVED, AMENDED OR MODIFIED EXCEPT PURSUANT TO AN AGREEMENT OR
AGREEMENTS IN WRITING ENTERED INTO BY BORROWER AND THE REQUISITE LENDERS.
NOTWITHSTANDING THE FOREGOING, NO SUCH AGREEMENT SHALL (I) FORGIVE OR REDUCE THE
PRINCIPAL AMOUNT OR EXTEND THE FINAL SCHEDULED DATE OF MATURITY OF ANY LOAN,
EXTEND THE SCHEDULED DATE OF ANY PAYMENT OF IN PRINCIPAL IN RESPECT OF ANY LOAN,
REDUCE THE