LOAN (OR INTEREST THEREIN) MAY
EXERCISE ALL RIGHTS OF PAYMENT (INCLUDING 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 COMPANY, ANY SUCH NOTICE BEING EXPRESSLY WAIVED BY THE COMPANY, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, UPON ANY AMOUNT BECOMING DUE AND PAYABLE
BY THE COMPANY HEREUNDER TO SETOFF AND APPROPRIATE AND APPLY AGAINST ANY AND ALL
DEPOSITS (GENERAL OR SPECIAL, TIME OR DEMAND, PROVISIONAL OR FINAL), IN ANY
CURRENCY, AND ANY OTHER CREDITS, INDEBTEDNESS OR CLAIMS, IN ANY CURRENCY, IN
EACH CASE WHETHER DIRECT OR INDIRECT, ABSOLUTE OR CONTINGENT, MATURED OR
UNMATURED, AT ANY TIME HELD OR OWING BY SUCH LENDER TO OR FOR THE CREDIT OR THE
ACCOUNT OF THE COMPANY. EACH LENDER AGREES PROMPTLY TO NOTIFY THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE FUNDING AGENTS 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.
96
(C)
IF AND TO THE EXTENT, BUT WITHOUT DOUBLE
COUNTING, THE COLLATERAL AGENT, THE ADMINISTRATIVE AGENT OR ANY LENDER (THE
"RECIPIENTS") SHALL BE REQUIRED FOR ANY REASON TO PAY OVER TO AN OBLIGOR OR TO
ANY OTHER PERSON ANY AMOUNT RECEIVED FROM THE COMPANY UNDER THIS AGREEMENT, SUCH
AMOUNT SHALL BE DEEMED NOT TO HAVE BEEN RECEIVED BY THE RELEVANT RECIPIENT BUT
RATHER TO HAVE BEEN RETAINED BY THE COMPANY AND, ACCORDINGLY, SUCH RECIPIENT
SHALL HAVE A CLAIM AGAINST THE COMPANY FOR SUCH AMOUNT, PAYABLE WHEN AND TO THE
EXTENT THAT ANY DISTRIBUTION FROM OR ON BEHALF OF SUCH OBLIGOR IS MADE IN
RESPECT THEREOF.
37.20
LIMITATION OF PAYMENTS BY THE COMPANY
The Company's obligations under Sections 10, 12 and 14
shall be limited to the
funds available to the Company which have been properly distributed to the
Company pursuant to this Agreement and the other Transaction Documents and
neither the Administrative Agent, nor any Funding Agent nor any Lender nor any
other Secured Party shall have any actionable claim against the Company for
failure to satisfy such obligation because it does not have funds available
therefor from amounts properly distributed.
37.21
NO BANKRUPTCY PETITION; NO RECOURSE
(A)
THE ADMINISTRATIVE AGENT, EACH FUNDING
AGENT, EACH LENDER, THE MASTER SERVICER AND THE COLLATERAL AGENT HEREBY
COVENANTS AND AGREES THAT IT WILL NOT INSTITUTE AGAINST, OR JOIN ANY OTHER
PERSON IN INSTITUTING AGAINST, THE COMPANY, ANY BANKRUPTCY, REORGANIZATION,
ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER SIMILAR PROCEEDINGS
UNDER ANY APPLICABLE INSOLVENCY LAWS.
(B)
NOTWITHSTANDING ANYTHING ELSEWHERE HEREIN
CONTAINED, THE SOLE REMEDY OF THE ADMINISTRATIVE AGENT, EACH FUNDING AGENT, THE
MASTER SERVICER, THE COLLATERAL AGENT, EACH LENDER OR ANY OTHER PERSON IN
RESPECT OF ANY OBLIGATION, COVENANT, REPRESENTATION, WARRANTY OR AGREEMENT OF
THE COMPANY UNDER OR RELATED TO THIS AGREEMENT SHALL BE AGAINST THE ASSETS OF
THE