BROUGHT BY THE BORROWER
OR ANY OTHER CREDIT PARTY AGAINST AN INDEMNITEE FOR BREACH IN BAD FAITH OF SUCH
INDEMNITEE'S OBLIGATIONS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, IF THE
BORROWER OR SUCH CREDIT PARTY HAS OBTAINED A FINAL AND NONAPPEALABLE JUDGMENT IN
ITS FAVOR ON SUCH CLAIM AS DETERMINED BY A COURT OF COMPETENT JURISDICTION.
(C)
REIMBURSEMENT BY LENDERS.
TO THE EXTENT THAT THE BORROWER FOR ANY
REASON FAILS TO INDEFEASIBLY PAY ANY AMOUNT REQUIRED UNDER CLAUSE (A) OR (B) OF
THIS SECTION TO BE PAID BY IT TO THE ADMINISTRATIVE AGENT (OR ANY SUB-AGENT
THEREOF), THE ISSUING LENDER OR ANY RELATED PARTY OF ANY OF THE FOREGOING, EACH
LENDER SEVERALLY AGREES TO PAY TO THE ADMINISTRATIVE AGENT (OR ANY SUCH
SUB-AGENT), THE ISSUING LENDER OR SUCH RELATED PARTY, AS THE CASE MAY BE, SUCH
LENDER'S COMMITMENT PERCENTAGE (DETERMINED AS OF THE TIME THAT THE APPLICABLE
UNREIMBURSED EXPENSE OR
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INDEMNITY PAYMENT IS SOUGHT) OF SUCH UNPAID AMOUNT, PROVIDED THAT THE
UNREIMBURSED EXPENSE OR INDEMNIFIED LOSS, CLAIM, DAMAGE, LIABILITY OR RELATED
EXPENSE, AS THE CASE MAY BE, WAS INCURRED BY OR ASSERTED AGAINST THE
ADMINISTRATIVE AGENT (OR ANY SUCH SUB-AGENT) OR THE ISSUING LENDER IN ITS
CAPACITY AS SUCH, OR AGAINST ANY RELATED PARTY OF ANY OF THE FOREGOING ACTING
FOR THE ADMINISTRATIVE AGENT (OR ANY SUCH SUB-AGENT) OR ISSUING LENDER IN
CONNECTION WITH SUCH CAPACITY.
THE OBLIGATIONS OF THE LENDERS UNDER THIS CLAUSE
(C) ARE SUBJECT TO THE PROVISIONS OF SECTION 4.7.
(D)
WAIVER OF CONSEQUENTIAL DAMAGES, ETC.
TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE BORROWER SHALL NOT ASSERT, AND HEREBY WAIVES,
ANY CLAIM AGAINST ANY INDEMNITEE, 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, THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR LETTER OF CREDIT OR THE
USE OF THE PROCEEDS THEREOF.
NO INDEMNITEE REFERRED TO IN CLAUSE (B) ABOVE
SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF
ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS,
ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
(E)
PAYMENTS.
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE
PROMPTLY AFTER DEMAND THEREFOR.
SECTION 13.4
RIGHT OF SETOFF.
IF AN EVENT OF DEFAULT SHALL HAVE OCCURRED
AND BE CONTINUING, EACH LENDER, THE ISSUING LENDER, THE SWINGLINE LENDER AND
EACH OF THEIR RESPECTIVE AFFILIATES IS HEREBY AUTHORIZED AT ANY TIME AND FROM
TIME TO TIME, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO SET OFF AND
APPLY ANY AND ALL DEPOSITS (GENERAL OR SPECIAL, TIME OR DEMAND, PROVISIONAL OR
FINAL, IN WHATEVER CURRENCY) AT ANY TIME HELD AND OTHER OBLIGATIONS (IN WHATEVER
CURRENCY) AT ANY TIME OWING BY SUCH LENDER, THE ISSUING LENDER, THE SWINGLINE
LENDER OR ANY SUCH