SUBSIDIARIES OR TO THEIR
RESPECTIVE REAL PROPERTIES, ASSETS OR OPERATIONS OR (V) 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
INDEMNITEE AND WHETHER OR NOT ANY INDEMNITEE IS A PARTY THERETO, PROVIDED THAT
SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT
SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED BY
A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE
RESULTED FROM THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SUCH INDEMNITEE (OR
ITS RELATED PARTIES).
114
(C)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SSCC NOR THE BORROWER
SHALL ASSERT, OR PERMIT ANY OF THEIR AFFILIATES OR RELATED PARTIES TO ASSERT,
AND EACH HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE (I) FOR ANY DAMAGES
ARISING FROM THE USE BY OTHERS OF INFORMATION OR OTHER MATERIALS OBTAINED
THROUGH TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS
(INCLUDING THE INTERNET), OR (II) ON ANY THEORY OF LIABILITY FOR SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL
DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF THIS AGREEMENT,
ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR
THEREBY, THE TRANSACTIONS CONTEMPLATED HEREBY, ANY LOAN OR THE USE OF THE
PROCEEDS THEREOF.
(D)
THE PROVISIONS OF THIS SECTION 9.05 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 ADMINISTRATIVE AGENT OR ANY LENDER.
ALL AMOUNTS DUE UNDER THIS
SECTION 9.05 SHALL BE PAYABLE PROMPTLY AFTER WRITTEN DEMAND THEREFOR.
SECTION 9.06. RIGHT OF SETOFF.
SUBJECT TO THE INTERCREDITOR AGREEMENT, EACH
LENDER AND EACH OF ITS AFFILIATES IS HEREBY AUTHORIZED, IN ADDITION TO ANY OTHER
RIGHT OR REMEDY THAT ANY LENDER OR ANY SUCH AFFILIATES MAY HAVE BY OPERATION OF
LAW OR OTHERWISE, AT ANY TIME AND FROM TIME TO TIME UPON ANY AMOUNT BECOMING DUE
AND PAYABLE BY ANY LOAN PARTY UNDER ANY LOAN DOCUMENT, AFTER THE EXPIRATION OF
ANY GRACE PERIOD WITH RESPECT THERETO, TO EXERCISE, WITHOUT NOTICE TO SSCC OR
THE BORROWER (ANY SUCH NOTICE BEING EXPRESSLY WAIVED BY EACH SUCH PERSON), ITS
BANKER'S LIEN OR RIGHT OF COMBINATION OF ACCOUNTS OR RIGHT OF SETOFF AND APPLY
ANY AND ALL DEPOSITS (GENERAL OR SPECIAL, TIME OR DEMAND, PROVISIONAL OR FINAL)
AT ANY TIME HELD AND OTHER INDEBTEDNESS AT ANY TIME OWING BY SUCH LENDER OR ANY
SUCH AFFILIATE TO OR FOR THE CREDIT OR THE ACCOUNT OF ANY LOAN PARTY AGAINST
SUCH DUE AND PAYABLE AMOUNT.
EACH LENDER AND EACH OF ITS AFFILIATES AGREES TO
PROMPTLY NOTIFY THE BORROWER AND THE ADMINISTRATIVE AGENT AFTER ANY SUCH SETOFF
AND APPLICATION MADE BY