TORT OR ANY OTHER THEORY (INCLUDING ANY INVESTIGATION OF, PREPARATION
FOR, OR DEFENSE OF ANY PENDING OR THREATENED CLAIM, INVESTIGATION, LITIGATION OR
PROCEEDING) AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO (ALL THE
FOREGOING, COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"), IN ALL CASES, WHETHER
OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE NEGLIGENCE OF THE
INDEMNITEE; PROVIDED THAT THE BORROWER SHALL HAVE NO OBLIGATION HEREUNDER TO ANY
INDEMNITEE WITH RESPECT TO (I) INDEMNIFIED LIABILITIES THAT 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,
(II) ANY MATERIAL VIOLATION OF ANY BANKING LAW OR REGULATION BY SUCH INDEMNITEE,
(III) ANY LIABILITY AS BETWEEN OR AMONG ANY INDEMNITEE OR THEIR RESPECTIVE
SHAREHOLDERS AND CONTROLLING PERSONS, (IV) ANY DEFAULT HEREUNDER BY ANY PERSON
OTHER THAN THE BORROWER, OR (V) ANY TAXES OR OTHER TAXES, EXCEPT TO THE EXTENT
SUCH TAXES OR OTHER TAXES ARE INDEMNIFIED AGAINST BY OTHER PROVISIONS OF THIS
AGREEMENT.
NO INDEMNITEE SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE
BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR
OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN
45
CONNECTION WITH THIS AGREEMENT EXCEPT TO THE EXTENT SUCH DAMAGES 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.
ALL AMOUNTS DUE UNDER THIS SECTION 10.05 SHALL BE PAYABLE WITHIN TEN BUSINESS
DAYS AFTER DEMAND THEREFOR.
THE AGREEMENTS IN THIS SECTION SHALL SURVIVE THE
RESIGNATION OF THE ADMINISTRATIVE AGENT, THE REPLACEMENT OF ANY LENDER, THE
TERMINATION OF THE AGGREGATE COMMITMENTS AND THE REPAYMENT, SATISFACTION OR
DISCHARGE OF ALL THE OTHER OBLIGATIONS.
10.06
PAYMENTS SET ASIDE.
TO THE EXTENT THAT ANY PAYMENT BY OR
ON BEHALF OF THE BORROWER IS MADE TO THE ADMINISTRATIVE AGENT OR ANY LENDER, OR
THE ADMINISTRATIVE AGENT OR ANY LENDER EXERCISES ITS RIGHT OF SET-OFF, AND SUCH
PAYMENT OR THE PROCEEDS OF SUCH SET-OFF OR ANY PART THEREOF IS SUBSEQUENTLY
INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE OR REQUIRED
(INCLUDING PURSUANT TO ANY SETTLEMENT ENTERED INTO BY THE ADMINISTRATIVE AGENT
OR SUCH LENDER IN ITS DISCRETION) TO BE REPAID TO A TRUSTEE, RECEIVER OR ANY
OTHER PARTY, IN CONNECTION WITH ANY PROCEEDING UNDER ANY DEBTOR RELIEF LAW OR
OTHERWISE, THEN (A) TO THE EXTENT OF SUCH RECOVERY, THE OBLIGATION OR PART
THEREOF ORIGINALLY INTENDED TO BE SATISFIED SHALL BE REVIVED AND CONTINUED IN
FULL FORCE AND EFFECT AS IF SUCH PAYMENT HAD NOT BEEN MADE OR SUCH SET-OFF HAD
NOT OCCURRED, AND (B) EACH LENDER SEVERALLY AGREES TO PAY TO THE ADMINISTRATIVE
AGENT UPON DEMAND ITS APPLICABLE SHARE OF ANY AMOUNT SO RECOVERED FROM OR REPAID
BY THE ADMINISTRATIVE AGENT, PLUS INTEREST THEREON FROM THE DATE OF SUCH DEMAND
TO THE DATE SUCH PAYMENT IS MADE AT A RATE PER ANNUM EQUAL TO THE FEDERAL FUNDS
RATE FROM TIME TO TIME IN EFFECT.