BY ANY LOAN PARTY,
ITS DIRECTORS, SHAREHOLDERS 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 TRANSACTION IS CONSUMMATED.
EACH BORROWER ALSO AGREES NOT TO
ASSERT ANY CLAIM AGAINST ANY AGENT, ANY LENDER PARTY OR ANY OF THEIR AFFILIATES,
OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND ADVISORS,
ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO THE FACILITIES, 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.
(C)
IF ANY PAYMENT OF PRINCIPAL OF, OR
CONVERSION OF, ANY EUROCURRENCY RATE ADVANCES, LIBO RATE ADVANCE OR LOCAL RATE
ADVANCES IS MADE BY ANY 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 2.07, 2.10(B)(I) OR 2.11(D),
ACCELERATION OF THE MATURITY OF THE ADVANCES PURSUANT TO SECTION 6.01 OR FOR ANY
OTHER REASON OR BY AN ELIGIBLE ASSIGNEE TO A LENDER PARTY OTHER THAN ON THE LAST
DAY OF THE INTEREST PERIOD FOR SUCH ADVANCE UPON AN ASSIGNMENT OF RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT PURSUANT TO SECTION 9.07 AS A RESULT OF A
DEMAND BY THE COMPANY PURSUANT TO SECTION 9.07(A), 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,
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 2.11 AND
2.13 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 6.01 to authorize the
Administrative Agent to declare the Advances due and