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HEREOF; PROVIDED, HOWEVER, THAT THE FOREGOING INDEMNITY AGREEMENT SHALL NOT
APPLY TO CLAIMS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES SOLELY ATTRIBUTABLE
TO AN INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
THE INDEMNITY
CONTAINED IN THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AMENDMENT AND
PAYMENT OF THE OBLIGATIONS.
11.
REINSTATEMENT.
(A) NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, IN THE EVENT OF A BANKRUPTCY PROCEEDING IS
COMMENCED FOR ANY OF THE OBLIGORS WITHIN NINETY (90) DAYS OF THE EFFECTIVE DATE
AND, AS A RESULT THEREOF, ANY PORTION OF THE CONSIDERATION SET FORTH IN SECTION
2(B) ABOVE SHALL BE DISGORGED TO THE RELEVANT BANKRUPTCY ESTATE, THEN THE
OBLIGATIONS OF THE OBLIGORS SHALL BE REINSTATED IN AN AMOUNT EQUAL TO (A)
$174,576,404.12 MULTIPLIED BY (B) THE PERCENTAGE EQUAL TO (Y) ANY PORTION OF THE
CONSIDERATION AS SET FORTH IN 2(B) ACTUALLY PAID IS DISGORGED PLUS TO THE EXTENT
SUCH PAYMENT IS NOT YET MADE SUCH RIGHT TO PAYMENT HAS BEEN AVOIDED OR OTHERWISE
DETERMINED BY ORDER OF THE COURT NOT TO BE PAYABLE OR PREVENTED FROM BEING PAID
IN ACCORDANCE WITH THE TERMS HEREOF, DIVIDED BY (Z) $60,000,000.
(B)
IF AT ANY TIME ALL OR ANY PART OF ANY PAYMENT MADE TO THE BANKS IN
ACCORDANCE WITH THIS AMENDMENT IS OR MUST BE RESCINDED OR RETURNED BY THE AGENT
OR THE BANKS FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE
INSOLVENCY, BANKRUPTCY OR REORGANIZATION OF ANY OF THE AMENDMENT PARTIES), SUCH
AMOUNTS SHALL, TO THE EXTENT THAT SUCH PAYMENT IS OR MUST BE RESCINDED OR
RETURNED, BE DEEMED TO HAVE CONTINUED IN EXISTENCE, AND SHALL CONTINUE TO BE
EFFECTIVE OR BE REINSTATED WITH RESPECT TO THE BORROWER, AS THE CASE MAY BE, AS
TO SUCH LIABILITIES, ALL AS THOUGH SUCH PAYMENT TO THE AGENT AND THE BANKS HAD
NOT BEEN MADE.
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12.
ASSIGNMENT.
NOTWITHSTANDING ANYTHING
CONTAINED IN THE LOAN DOCUMENTS TO THE CONTRARY, (I) EACH BANK, INCLUDING AGENT,
SHALL HAVE THE RIGHT TO ASSIGN, TRANSFER, SELL, NEGOTIATE, PLEDGE OR OTHERWISE
HYPOTHECATE ITS LOANS AND ITS RIGHTS UNDER THE LOAN DOCUMENTS AND THIS AMENDMENT
AND RIGHTS HEREUNDER AND ANY OF ITS RIGHTS HEREUNDER TO ANY OTHER PARTY WITH THE
PRIOR WRITTEN CONSENT OF AGENT PROVIDED, HOWEVER, THAT (I) THE PARTIES TO EACH
SUCH ASSIGNMENT SHALL EXECUTE AND DELIVER TO AGENT, FOR ITS APPROVAL AND
ACCEPTANCE, AN ASSIGNMENT AND ASSUMPTION, (II) EACH SUCH ASSIGNMENT SHALL BE OF
A CONSTANT, AND NOT A VARYING, PERCENTAGE OF THE ASSIGNING BANK'S RIGHTS AND
OBLIGATIONS UNDER THIS AMENDMENT, (III) IF THE POTENTIAL ASSIGNEE IS NOT ALREADY
A BANK HEREUNDER, AT LEAST TEN (10) DAYS PRIOR TO THE DATE OF THE ASSIGNMENT,
THE POTENTIAL ASSIGNEE SHALL DELIVER TO AGENT THE FULLY COMPLETED PATRIOT ACT
AND OFAC FORMS REQUIRED BY THE AGENT AND SUCH OTHER INFORMATION AS AGENT SHALL
REQUIRE TO SUCCESSFULLY COMPLETE AGENT'S PATRIOT ACT CUSTOMER IDENTIFICATION
PROCESS AND OFAC REVIEW PROCESS, AND (IV) AGENT SHALL RECEIVE FROM THE ASSIGNING
BANK A PROCESSING FEE OF THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500.00); (II)
UPON SUCH EXECUTION, DELIVERY, APPROVAL