BANK OF THIS SECTION; OR (II) IS DISCLOSED TO BANK BY A THIRD PARTY,
IF BANK DOES NOT KNOW THAT THE THIRD PARTY IS PROHIBITED FROM DISCLOSING THE
INFORMATION.
12.9
RIGHT OF SET OFF.
BORROWER HEREBY GRANTS TO BANK, A LIEN, SECURITY
INTEREST AND RIGHT OF SET OFF AS SECURITY FOR ALL OBLIGATIONS TO BANK, WHETHER
NOW EXISTING OR HEREAFTER ARISING UPON AND AGAINST ALL DEPOSITS, CREDITS,
15
COLLATERAL AND PROPERTY, NOW OR HEREAFTER IN THE POSSESSION, CUSTODY,
SAFEKEEPING OR CONTROL OF BANK OR ANY ENTITY UNDER THE CONTROL OF BANK
(INCLUDING A BANK SUBSIDIARY) OR IN TRANSIT TO ANY OF THEM.
IF AN EVENT OF
DEFAULT HAS OCCURRED AND IS CONTINUING, WITHOUT DEMAND OR PRIOR NOTICE, BANK MAY
SET OFF THE SAME OR ANY PART THEREOF AND APPLY THE SAME TO ANY LIABILITY OR
OBLIGATION OF BORROWER THEN DUE AND PAYABLE AND REGARDLESS OF THE ADEQUACY OF
ANY OTHER COLLATERAL SECURING THE OBLIGATIONS.
BANK WILL NOTIFY BORROWER OF ANY
SUCH SET OFF, PROVIDED THAT FAILURE TO GIVE SUCH NOTICE SHALL NOT AFFECT BANK'S
RIGHTS UNDER THIS SECTION 12.10.
ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE
ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE
OBLIGATIONS, 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.
12.10
BORROWER LIABILITY.
EITHER BORROWER MAY, ACTING SINGLY, REQUEST
ADVANCES HEREUNDER.
EACH BORROWER HEREBY APPOINTS THE OTHER AS AGENT FOR THE
OTHER FOR ALL PURPOSES HEREUNDER, INCLUDING WITH RESPECT TO REQUESTING ADVANCES
HEREUNDER. EACH BORROWER HEREUNDER SHALL BE OBLIGATED TO REPAY ALL ADVANCES MADE
HEREUNDER, REGARDLESS OF WHICH BORROWER ACTUALLY RECEIVES SAID ADVANCE, AS IF
EACH BORROWER HEREUNDER DIRECTLY RECEIVED ALL ADVANCES.
TO THE EXTENT NOT
PROHIBITED BY APPLICABLE LAW, EACH BORROWER WAIVES ANY SURETYSHIP DEFENSES
AVAILABLE TO IT UNDER THE CODE OR ANY OTHER APPLICABLE LAW.
EACH BORROWER
WAIVES ANY RIGHT TO REQUIRE BANK TO: (I) PROCEED AGAINST ANY BORROWER OR ANY
OTHER PERSON; (II) PROCEED AGAINST OR EXHAUST ANY SECURITY; OR (III) PURSUE ANY
OTHER REMEDY.
BANK MAY EXERCISE OR NOT EXERCISE ANY RIGHT OR REMEDY IT HAS
AGAINST ANY BORROWER OR ANY SECURITY IT HOLDS (INCLUDING THE RIGHT TO FORECLOSE
BY JUDICIAL OR NON-JUDICIAL SALE) WITHOUT AFFECTING ANY BORROWER'S LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR OTHER RELATED DOCUMENT,
EACH BORROWER IRREVOCABLY WAIVES ALL RIGHTS THAT IT MAY HAVE AT LAW OR IN EQUITY
(INCLUDING, WITHOUT LIMITATION, ANY LAW SUBROGATING BORROWER TO THE RIGHTS OF
BANK UNDER THIS AGREEMENT) TO SEEK CONTRIBUTION, INDEMNIFICATION OR ANY OTHER
FORM OF REIMBURSEMENT FROM ANY OTHER BORROWER, OR ANY OTHER PERSON NOW OR
HEREAFTER PRIMARILY OR SECONDARILY LIABLE FOR ANY OF THE OBLIGATIONS, FOR ANY
PAYMENT MADE BY BORROWER WITH RESPECT TO THE OBLIGATIONS IN CONNECTION WITH THIS
AGREEMENT OR OTHERWISE AND ALL RIGHTS THAT IT MIGHT HAVE TO BENEFIT FROM, OR TO
PARTICIPATE IN, ANY SECURITY FOR THE OBLIGATIONS AS A RESULT OF ANY PAYMENT MADE
BY BORROWER WITH RESPECT