BY OR LEASED TO ANY LOAN
PARTY, THE ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE ADVANCES OR THE LETTERS
OF CREDIT, THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY OR
(II) THE ACTUAL OR ALLEGED PRESENCE OF HAZARDOUS MATERIALS ON ANY PROPERTY OF
ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES OR ANY ENVIRONMENTAL ACTION RELATING
IN ANY WAY TO ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES, EXCEPT TO THE EXTENT,
IN EACH CASE, SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE IS FOUND IN A
FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE
RESULTED FROM SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IN THE CASE OF AN INVESTIGATION, LITIGATION OR OTHER PROCEEDING TO WHICH THE
INDEMNITY IN THIS SECTION 9.04(B) APPLIES, SUCH INDEMNITY SHALL BE EFFECTIVE
WHETHER OR NOT SUCH INVESTIGATION, LITIGATION OR PROCEEDING IS BROUGHT BY ANY
LOAN PARTY, ITS DIRECTORS, SHAREHOLDERS OR CREDITORS OR AN INDEMNIFIED PARTY OR
ANY INDEMNIFIED PARTY IS OTHERWISE A PARTY THERETO AND WHETHER OR NOT THE
TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED.
(C)
IF ANY PAYMENT OF PRINCIPAL OF, OR CONVERSION OF, ANY EURODOLLAR
RATE ADVANCE IS MADE BY EITHER BORROWER TO OR FOR THE ACCOUNT OF A LENDER PARTY
OTHER THAN ON THE LAST DAY OF THE INTEREST PERIOD FOR SUCH ADVANCE, AS A RESULT
OF A PAYMENT OR CONVERSION PURSUANT TO SECTION 2.03, 2.06(B)(I) OR 2.07(C),
ACCELERATION OF THE MATURITY OF THE LENDER NOTES PURSUANT TO SECTION 7.01 OR FOR
ANY OTHER REASON, SUCH BORROWER SHALL, UPON DEMAND BY SUCH LENDER PARTY (WITH A
COPY OF SUCH DEMAND TO THE ADMINISTRATIVE AGENT), PAY TO THE ADMINISTRATIVE
AGENT FOR THE ACCOUNT OF SUCH LENDER PARTY ANY AMOUNTS REQUIRED TO COMPENSATE
SUCH LENDER PARTY FOR ANY ADDITIONAL LOSSES, COSTS OR EXPENSES THAT IT MAY
REASONABLY INCUR AS A RESULT OF SUCH PAYMENT,
93
INCLUDING, WITHOUT LIMITATION, ANY LOSS (INCLUDING LOSS OF ANTICIPATED PROFITS),
COST OR EXPENSE INCURRED BY REASON OF THE LIQUIDATION OR REEMPLOYMENT OF
DEPOSITS OR OTHER FUNDS ACQUIRED BY ANY LENDER PARTY TO FUND OR MAINTAIN SUCH
ADVANCE.
(D)
IF ANY LOAN PARTY FAILS TO PAY WHEN DUE ANY COSTS, EXPENSES OR
OTHER AMOUNTS PAYABLE BY IT UNDER ANY LOAN DOCUMENT, INCLUDING, WITHOUT
LIMITATION, FEES AND EXPENSES OF COUNSEL AND INDEMNITIES, SUCH AMOUNT MAY BE
PAID ON BEHALF OF SUCH LOAN PARTY BY THE ADMINISTRATIVE AGENT OR ANY LENDER
PARTY, IN ITS SOLE DISCRETION.
(E)
WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER AGREEMENT OF ANY
LOAN PARTY HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, THE AGREEMENTS AND
OBLIGATIONS OF THE BORROWERS CONTAINED IN SECTIONS 2.07 AND 2.09 AND THIS
SECTION 9.04 SHALL SURVIVE THE PAYMENT IN FULL OF PRINCIPAL, INTEREST AND ALL
OTHER AMOUNTS PAYABLE HEREUNDER AND UNDER ANY OF THE OTHER LOAN DOCUMENTS.
Section 9.05
Right of Set-off.
Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 7.01 to authorize