OR OTHER PROCEEDING TO WHICH THE INDEMNITY IN THIS
SECTION 8.04(B) APPLIES, SUCH INDEMNITY SHALL BE EFFECTIVE WHETHER OR NOT SUCH
INVESTIGATION, LITIGATION OR PROCEEDING IS BROUGHT BY THE BORROWER, ITS
DIRECTORS, EQUITYHOLDERS OR CREDITORS OR AN INDEMNIFIED PARTY OR ANY OTHER
PERSON, WHETHER OR NOT ANY INDEMNIFIED PARTY IS OTHERWISE A PARTY THERETO AND
WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED.
EACH PARTY
TO THIS AGREEMENT AGREES NOT TO ASSERT ANY CLAIM FOR SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES AGAINST ANY OTHER PARTY HERETO OR ANY OF ITS
AFFILIATES, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONTROLLING
PERSONS, ON ANY THEORY OF LIABILITY, ARISING OUT OF OR OTHERWISE RELATING TO (I)
THE NOTES, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY OTHER DOCUMENTS
RELATED THERETO, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR
PROPOSED USE OF THE PROCEEDS OF THE REVOLVING CREDIT ADVANCES OR (II) ANY ACTUAL
OR ALLEGED PRESENCE OR RELEASE OF MATERIALS OF ENVIRONMENTAL CONCERN ON OR FROM
ANY PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR
ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE BORROWER OR ANY OF ITS
SUBSIDIARIES.
53
(C)
IF ANY PAYMENT OF PRINCIPAL OF, OR
CONVERSION OF, ANY EURODOLLAR RATE ADVANCE IS MADE BY THE BORROWER TO OR FOR THE
ACCOUNT OF A LENDER OTHER THAN ON THE LAST DAY OF THE INTEREST PERIOD FOR SUCH
REVOLVING CREDIT ADVANCE, AS A RESULT OF A PAYMENT OR CONVERSION PURSUANT TO
SECTION 2.10(A), 2.10(B)(I) OR (II), 2.11 OR 2.13, ACCELERATION OF THE MATURITY
OF THE NOTES PURSUANT TO SECTION 6.01 OR FOR ANY OTHER REASON, THE BORROWER
SHALL, UPON DEMAND BY SUCH LENDER (WITH A COPY OF SUCH DEMAND TO THE
ADMINISTRATIVE AGENT), PAY TO THE ADMINISTRATIVE AGENT FOR THE ACCOUNT OF SUCH
LENDER ANY AMOUNTS REQUIRED TO COMPENSATE SUCH LENDER FOR ANY ADDITIONAL LOSSES,
COSTS OR EXPENSES THAT IT MAY REASONABLY INCUR AS A RESULT OF SUCH PAYMENT OR
CONVERSION, INCLUDING 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 TO FUND OR MAINTAIN SUCH REVOLVING CREDIT
ADVANCE.
(D)
WITHOUT PREJUDICE TO THE SURVIVAL OF ANY
OTHER AGREEMENT OF THE BORROWER HEREUNDER, THE AGREEMENTS AND OBLIGATIONS OF THE
PARTIES CONTAINED IN SECTIONS 2.12, 2.15 AND 8.04 SHALL SURVIVE THE PAYMENT IN
FULL OF PRINCIPAL, INTEREST AND ALL OTHER AMOUNTS PAYABLE HEREUNDER, UNDER THE
NOTES OR ANY OTHER LOAN DOCUMENT.
Section 8.05.
Right of Set-off.
Upon (i) the
occurrence and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by Section 6.01
to authorize the Administrative Agent to declare the Notes due and payable
pursuant to the provisions of Section 6.01, 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