HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL CLAIMS, LIABILITIES AND EXPENSES
(INCLUDING REASONABLE AND INVOICED COUNSEL FEES, CHARGES AND DISBURSEMENTS OF
ONE COUNSEL SELECTED BY THE AGENT FOR ALL THE INDEMNITEES, SUCH LOCAL COUNSEL AS
THE AGENT MAY IN GOOD FAITH DEEM ADVISABLE AND, IN THE EVENT THE AGENT SHALL
HAVE DETERMINED THAT A CONFLICT OF INTEREST MAKES IT INADVISABLE FOR A SINGLE
COUNSEL TO REPRESENT ALL THE INDEMNITEES, SUCH ADDITIONAL COUNSEL AS MAY BE
REQUIRED BY REASON OF SUCH CONFLICT), INCURRED BY OR ASSERTED AGAINST ANY
INDEMNITEE ARISING OUT OF OR IN CONNECTION WITH
82
(I) THE EXECUTION OR DELIVERY OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
ANY AGREEMENT OR INSTRUMENT CONTEMPLATED THEREBY, THE PERFORMANCE BY THE PARTIES
THERETO OF THEIR RESPECTIVE OBLIGATIONS THEREUNDER OR THE CONSUMMATION OF THE
TRANSACTIONS AND THE OTHER TRANSACTIONS CONTEMPLATED THEREBY, (II) THE USE OF
THE PROCEEDS OF THE LOANS OR (III) ANY CLAIM, LITIGATION, INVESTIGATION OR
PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY AND WHETHER INITIATED AGAINST OR BY ANY PARTY TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, ANY AFFILIATE OF ANY OF THE FOREGOING OR ANY THIRD
PARTY (AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO); PROVIDED
THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT
THAT SUCH CLAIM (WHETHER BROUGHT BY A LENDER OR ANY OTHER PERSON), DAMAGE,
LIABILITY OR EXPENSE IS DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL
AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM (X) THE GROSS NEGLIGENCE OR
WILFUL MISCONDUCT OF SUCH INDEMNITEE OR (Y) THE MATERIAL BREACH OF SUCH
INDEMNITEE'S OBLIGATIONS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
AGREEMENT OR INSTRUMENT CONTEMPLATED THEREBY.
EACH OF THE PARTIES HERETO ALSO
AGREES NOT TO ASSERT ANY CLAIM FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES AGAINST ANY LOAN PARTY, THE AGENT, ANY ARRANGER, THE SYNDICATION AGENT,
ANY LENDER OR ANY RELATED PARTY OF ANY OF THE FOREGOING 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 AND EACH OF ITS AFFILIATES 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,