EVENT SHALL ANY AGENT AFFILIATE HAVE
ANY LIABILITY TO ANY CREDIT PARTY, LENDER, OR ANY OTHER PERSON FOR DAMAGES OF
ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT OR CONTRACT OR OTHERWISE) ARISING
OUT OF ANY CREDIT PARTY OR ANY AGENT AFFILIATE'S TRANSMISSION OF APPROVED
ELECTRONIC COMMUNICATIONS THROUGH THE INTERNET OR ANY USE OF THE PLATFORM,
EXCEPT TO THE EXTENT SUCH LIABILITY OF ANY AGENT AFFILIATE IS FOUND IN A FINAL
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
PRIMARILY FORM SUCH AGENT AFFILIATE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
10.4
SET-OFF.
IN ADDITION TO ANY RIGHTS NOW OR
HEREAFTER GRANTED UNDER APPLICABLE LAW AND NOT BY WAY OF LIMITATION OF ANY SUCH
RIGHTS, UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT EACH LENDER, AND EACH
FACILITY AGENT IS HEREBY AUTHORIZED BY EACH CREDIT PARTY AT ANY TIME OR FROM
TIME TO TIME SUBJECT TO THE CONSENT OF ADMINISTRATIVE AGENT (SUCH CONSENT NOT TO
BE UNREASONABLY WITHHELD OR DELAYED), WITHOUT NOTICE TO ANY CREDIT PARTY OR TO
ANY OTHER PERSON (OTHER THAN ADMINISTRATIVE AGENT), ANY SUCH NOTICE BEING HEREBY
EXPRESSLY WAIVED, TO SET OFF AND TO APPROPRIATE AND TO APPLY ANY AND ALL
DEPOSITS (GENERAL OR SPECIAL, INCLUDING INDEBTEDNESS EVIDENCED BY CERTIFICATES
OF DEPOSIT, WHETHER MATURED OR UNMATURED, BUT NOT INCLUDING TRUST ACCOUNTS) AND
ANY OTHER INDEBTEDNESS AT ANY TIME HELD OR OWING BY SUCH LENDER OR FACILITY
AGENT TO OR FOR THE CREDIT OR THE ACCOUNT OF ANY CREDIT PARTY AGAINST AND ON
ACCOUNT OF THE OBLIGATIONS AND LIABILITIES OF ANY CREDIT PARTY TO SUCH PERSON
HEREUNDER, AND PARTICIPATIONS THEREIN AND UNDER THE OTHER CREDIT DOCUMENTS,
INCLUDING ALL CLAIMS OF ANY NATURE OR DESCRIPTION ARISING OUT OF OR CONNECTED
HERETO, AND PARTICIPATIONS THEREIN OR WITH ANY OTHER CREDIT DOCUMENT,
IRRESPECTIVE OF WHETHER OR NOT (A) SUCH PERSON SHALL HAVE MADE ANY DEMAND
HEREUNDER OR (B) THE PRINCIPAL OF OR THE INTEREST ON THE LOANS OR ANY OTHER
AMOUNTS DUE HEREUNDER SHALL HAVE BECOME DUE AND PAYABLE PURSUANT TO SECTION 2
AND ALTHOUGH SUCH OBLIGATIONS AND LIABILITIES, OR ANY OF THEM, MAY BE CONTINGENT
OR UNMATURED.
82
10.5
AMENDMENTS AND WAIVERS.
(A)
REQUISITE LENDERS' CONSENT.
SUBJECT TO
SECTIONS 10.5(B) AND 10.5(C), NO AMENDMENT, MODIFICATION, TERMINATION OR WAIVER
OF ANY PROVISION OF THIS AGREEMENT OR CONSENT TO ANY DEPARTURE BY ANY CREDIT
PARTY THEREFROM, SHALL IN ANY EVENT BE EFFECTIVE WITHOUT THE WRITTEN CONCURRENCE
OF THE REQUISITE LENDERS; PROVIDED, THAT THE ADMINISTRATIVE AGENT MAY, WITH THE
CONSENT OF THE BORROWER ONLY, AMEND, MODIFY OR SUPPLEMENT THIS AGREEMENT TO CURE
ANY AMBIGUITY, OMISSION, DEFECT OR INCONSISTENCY, SO LONG AS SUCH AMENDMENT,
MODIFICATION OR SUPPLEMENT DOES NOT ADVERSELY AFFECT THE RIGHTS OF ANY LENDER.
(B)
AFFECTED LENDERS' CONSENT.
WITHOUT THE
WRITTEN CONSENT OF EACH LENDER THAT WOULD BE AFFECTED THEREBY, NO AMENDMENT,
MODIFICATION, TERMINATION, OR CONSENT SHALL BE EFFECTIVE IF THE EFFECT THEREOF
WOULD:
(I)
EXTEND THE SCHEDULED FINAL MATURITY OF
ANY LOAN OR NOTE;
(II)
WAIVE, REDUCE OR POSTPONE ANY