OR THEREIN OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, INCLUDING WITHOUT LIMITATION, REASONABLE
ATTORNEYS AND CONSULTANT'S FEES, INCLUDING ANY LOSSES, CLAIMS, DAMAGES,
LIABILITIES, OR RELATED EXPENSES CAUSED BY ANY INDEMNITEE'S OWN NEGLIGENCE,
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 THE BORROWER
OR ANY SUBSIDIARY 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 SUBSIDIARY 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 AGGREGATE EXPOSURE 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 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 5.7.
(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
87
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 14.4
Right of Set-off.
If an Event of