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 THE BORROWER OR HOLDINGS AGAINST ANY OF AND ALL THE
OBLIGATIONS OF THE BORROWER OR HOLDINGS NOW OR HEREAFTER EXISTING UNDER THIS
AGREEMENT AND OTHER LOAN DOCUMENTS (TO THE EXTENT SUCH OBLIGATIONS OF HOLDINGS
OR THE BORROWER ARE THEN DUE AND PAYABLE (BY ACCELERATION OR OTHERWISE)) 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 9.06
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
(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH
81
IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
EACH LETTER OF CREDIT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH
LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM
CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN
EFFECT, ON THE DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL
CHAMBER OF COMMERCE (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY
THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08.
WAIVERS; AMENDMENT.
(A)
NO FAILURE OR DELAY OF THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, ANY LENDER OR THE ISSUING BANK 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
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE ISSUING BANK 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 THE BORROWER OR ANY OTHER LOAN PARTY 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
THE PURPOSE FOR WHICH GIVEN.
NO NOTICE OR DEMAND ON THE BORROWER OR HOLDINGS IN
ANY CASE SHALL ENTITLE THE BORROWER OR HOLDINGS TO ANY OTHER OR FURTHER NOTICE
OR