PARTY THERETO, IN ALL CASES,
WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE
COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; PROVIDED THAT
SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT
SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES (X) ARE DETERMINED
BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE
RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR
(Y) RESULT FROM A CLAIM BROUGHT BY
63
BORROWER OR ANY OTHER LOAN PARTY AGAINST AN INDEMNITEE FOR BREACH IN BAD FAITH
OF SUCH INDEMNITEE'S OBLIGATIONS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, IF
BORROWER OR SUCH LOAN 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 BORROWER FOR ANY REASON FAILS TO INDEFEASIBLY PAY ANY AMOUNT REQUIRED UNDER
SUBSECTION (A) OR (B) OF THIS SECTION TO BE PAID BY IT TO AGENT (OR ANY
SUB-AGENT THEREOF) OR ANY RELATED PARTY OF ANY OF THE FOREGOING, EACH LENDER
SEVERALLY AGREES TO PAY TO AGENT (OR ANY SUCH SUB-AGENT) OR SUCH RELATED PARTY,
AS THE CASE MAY BE, SUCH LENDER'S APPLICABLE PERCENTAGE (DETERMINED AS OF THE
TIME THAT THE APPLICABLE UNREIMBURSED EXPENSE OR 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 AGENT (OR ANY SUCH SUB-AGENT) IN ITS CAPACITY AS SUCH, OR
AGAINST ANY RELATED PARTY OF ANY OF THE FOREGOING ACTING FOR AGENT (OR ANY SUCH
SUB-AGENT) IN CONNECTION WITH SUCH CAPACITY.
THE OBLIGATIONS OF THE LENDERS
UNDER THIS SUBSECTION (C) ARE SUBJECT TO THE PROVISIONS OF SECTION 2.12(D).
(D)
WAIVER OF CONSEQUENTIAL DAMAGES, ETC.
TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 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 THE USE OF
THE PROCEEDS THEREOF.
NO INDEMNITEE REFERRED TO IN SUBSECTION (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 NOT LATER THAN TEN BUSINESS DAYS AFTER DEMAND THEREFOR.
(F)
SURVIVAL.
THE AGREEMENTS IN THIS
SECTION SHALL SURVIVE THE RESIGNATION OF AGENT, THE REPLACEMENT OF ANY LENDER,
THE TERMINATION OF THE AGGREGATE COMMITMENTS AND THE REPAYMENT, SATISFACTION OR
DISCHARGE OF ALL THE OTHER OBLIGATIONS.