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, SUBJECT TO THE
INTERCREDITOR AGREEMENT, 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
102
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.
10.5
AMENDMENTS AND WAIVERS.
(A)
REQUISITE LENDERS' CONSENT.
EXCEPT AS EXPRESSLY PROVIDED
OTHERWISE IN THE INTERCREDITOR AGREEMENT AND SUBJECT TO SECTIONS 10.5(B) AND
10.5(C), NO AMENDMENT, MODIFICATION, TERMINATION OR WAIVER OF ANY PROVISION OF
THIS AGREEMENT OR THE INTERCREDITOR AGREEMENT OR THE PLEDGE AND SECURITY
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 MINOR 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 SCHEDULED REPAYMENT (BUT NOT
PREPAYMENT);
(III)
[RESERVED];
(IV)
REDUCE THE RATE OF INTEREST ON ANY LOAN (OTHER THAN ANY WAIVER OF
ANY INCREASE IN THE INTEREST RATE APPLICABLE TO ANY LOAN PURSUANT TO SECTION
2.9) OR ANY FEE OR ANY PREMIUM PAYABLE HEREUNDER;
(V)
EXTEND THE TIME FOR PAYMENT OF ANY SUCH INTEREST OR FEES;
(VI)
REDUCE THE PRINCIPAL AMOUNT