CONTEMPLATED THEREBY.
EACH
OF THE PARTIES HERETO ALSO AGREES NOT TO ASSERT ANY CLAIM FOR SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES AGAINST THE AGENT, ANY LENDER, ANY OF THEIR
AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS
AND AGENTS, ON ANY THEORY OF LIABILITY, ARISING OUT OF OR OTHERWISE RELATING TO
THIS AGREEMENT, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR
PROPOSED USE OF PROCEEDS OF THE LOANS.
(C)
THE PROVISIONS OF THIS SECTION SHALL REMAIN OPERATIVE AND IN FULL FORCE AND
EFFECT REGARDLESS OF THE EXPIRATION OF THE TERM OF THIS AGREEMENT, THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, THE REPAYMENT OF ANY OF
THE LOANS, THE INVALIDITY OR UNENFORCEABILITY OF ANY TERM OR PROVISION OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY INVESTIGATION MADE BY OR ON BEHALF
OF THE AGENT OR ANY LENDER.
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE
ON WRITTEN DEMAND THEREFOR.
SECTION 9.06.
RIGHT OF SETOFF.
IF AN EVENT OF DEFAULT SHALL HAVE OCCURRED AND
BE CONTINUING, EACH LENDER IS HEREBY AUTHORIZED AT ANY TIME AND FROM TIME TO
TIME, TO THE FULLEST EXTENT PERMITTED 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 THE
63
BORROWER AGAINST ANY OF AND ALL THE OBLIGATIONS OF THE 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 ARE IN ADDITION TO
OTHER RIGHTS AND REMEDIES (INCLUDING OTHER RIGHTS OF SETOFF) WHICH SUCH LENDER
MAY HAVE.
SECTION 9.07.
APPLICABLE LAW.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
SECTION 9.08.
WAIVERS; AMENDMENT.
(A)
NO FAILURE OR DELAY OF THE AGENT OR ANY
LENDER IN EXERCISING ANY POWER OR RIGHT HEREUNDER 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 WHICH THEY WOULD OTHERWISE HAVE.
NO WAIVER OF ANY PROVISION
OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR CONSENT TO ANY DEPARTURE BY THE
BORROWER THEREFROM SHALL IN ANY EVENT BE EFFECTIVE UNLESS THE SAME SHALL BE
PERMITTED BY PARAGRAPH (B) BELOW, AND THEN SUCH WAIVER OR CONSENT SHALL BE
EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR