THAT THEY SHALL NOT INDEPENDENTLY INSTITUTE ANY PROCEEDINGS,
JUDICIAL OR OTHERWISE, TO ENFORCE THEIR RIGHTS AGAINST BORROWER UNDER THIS LOAN
AGREEMENT OR THE OTHER LOAN DOCUMENTS.
HOWEVER, NOTWITHSTANDING ANYTHING
CONTAINED IN THIS SECTION 3.7(L), THE LENDERS SHALL ALWAYS RETAIN THEIR ABILITY
TO RETAIN INDEPENDENT COUNSEL AND TO PROTECT THEIR RIGHTS UNDER THIS LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
(M)
RIGHT OF SETOFF.
SUBJECT TO THE PROVISIONS OF
SECTION 2.11 HEREOF, UPON THE OCCURRENCE AND DURING THE CONTINUATION OF ANY
EVENT OF DEFAULT, THE LENDERS EACH ARE HEREBY AUTHORIZED AT ANY TIME AND FROM
TIME TO TIME, WITHOUT NOTICE TO BORROWER (ANY SUCH NOTICE BEING EXPRESSLY WAIVED
BY BORROWER), TO SETOFF AND APPLY ANY AND ALL DEPOSITS (GENERAL OR SPECIAL, TIME
OR DEMAND, PROVISIONAL OR FINAL, WHETHER OR NOT SUCH SETOFF RESULTS IN ANY LOSS
OF INTEREST OR OTHER PENALTY, AND INCLUDING WITHOUT LIMITATION ALL CERTIFICATES
OF DEPOSIT) AT ANY TIME HELD BY THE LENDERS AND ALL OF THE INDEBTEDNESS ARISING
IN CONNECTION WITH THIS LOAN AGREEMENT IRRESPECTIVE OF WHETHER OR NOT SUCH
LENDER WILL HAVE MADE ANY DEMAND UNDER THIS LOAN AGREEMENT, THE NOTE OR ANY
OTHER LOAN DOCUMENT.
BORROWER ALSO HEREBY GRANTS TO EACH OF THE LENDERS A
SECURITY INTEREST IN AND HEREBY TRANSFERS, ASSIGNS, SETS OVER AND CONVEYS TO
EACH OF THE LENDERS, AS SECURITY FOR PAYMENT OF THE LOAN, ALL SUCH DEPOSITS,
FUNDS OR PROPERTY OF BORROWER OR INDEBTEDNESS OF ANY LENDER TO BORROWER.
SHOULD
THE RIGHT OF ANY LENDER TO REALIZE FUNDS IN ANY MANNER SET FORTH HEREINABOVE BE
CHALLENGED AND ANY APPLICATION OF SUCH FUNDS BE REVERSED, WHETHER BY COURT ORDER
OR OTHERWISE, THE LENDERS SHALL MAKE RESTITUTION OR REFUND TO BORROWER PRO RATA
IN ACCORDANCE WITH THEIR RESPECTIVE PORTIONS OF THE LOAN.
EACH LENDER AGREES TO
PROMPTLY NOTIFY BORROWER AND ADMINISTRATIVE AGENT AFTER ANY SUCH SETOFF AND
APPLICATION, PROVIDED THAT THE FAILURE TO GIVE SUCH NOTICE WILL NOT AFFECT THE
VALIDITY OF SUCH SETOFF AND APPLICATION.
THE RIGHTS OF ADMINISTRATIVE AGENT AND
THE LENDERS UNDER THIS SECTION 3.7(M) ARE IN ADDITION TO OTHER RIGHTS AND
REMEDIES (INCLUDING WITHOUT LIMITATION OTHER RIGHTS OF SETOFF) WHICH
ADMINISTRATIVE AGENT OR THE LENDERS MAY HAVE.
NOTHING CONTAINED HEREIN SHALL
AFFECT THE RIGHT OF ANY LENDER TO EXERCISE, AND RETAIN THE
43
BENEFITS OF EXERCISING, ANY SUCH RIGHT WITH RESPECT TO ANY OTHER INDEBTEDNESS OR
OBLIGATION OF BORROWER TO SUCH LENDER.
SECTION 3.8
MISCELLANEOUS.
(A)
NON-WAIVER.
NO FAILURE OR DELAY ON THE
PART OF ADMINISTRATIVE AGENT IN EXERCISING ANY RIGHT, POWER OR REMEDY PURSUANT
TO THIS LOAN AGREEMENT, THE NOTE OR ANY OF THE OTHER LOAN DOCUMENTS SHALL
OPERATE AS A WAIVER THEREOF, AND NO SINGLE OR PARTIAL EXERCISE OF ANY SUCH
RIGHT, POWER OR REMEDY SHALL PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF, OR
THE EXERCISE OF ANY OTHER RIGHT, POWER OR REMEDY.
EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED HEREIN, NO NOTICE TO OR DEMAND ON BORROWER SHALL IN ANY CASE ENTITLE
BORROWER TO ANY OTHER OR FURTHER NOTICE OR DEMAND IN SIMILAR OR OTHER
CIRCUMSTANCES.
(B)