FROM A CLAIM BROUGHT BY 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)
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 LETTER OF CREDIT 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 TO SUCH UNINTENDED RECIPIENTS BY
SUCH INDEMNITEE 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 OTHER THAN FOR
DIRECT OR ACTUAL DAMAGES RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH INDEMNITEE AS DETERMINED BY A FINAL AND NONAPPEALABLE
JUDGMENT OF A COURT OF COMPETENT JURISDICTION.
(D)
PAYMENTS.
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE NOT
LATER THAN TEN BUSINESS DAYS AFTER DEMAND THEREFOR.
(E)
SURVIVAL.
THE AGREEMENTS IN THIS SECTION SHALL SURVIVE THE
RESIGNATION OF THE L/C ISSUER, THE REPLACEMENT OF THE LENDER, THE TERMINATION OF
THE COMMITMENT AND THE REPAYMENT, SATISFACTION OR DISCHARGE OF ALL THE OTHER
OBLIGATIONS.
9.05
PAYMENTS SET ASIDE.
TO THE EXTENT THAT ANY PAYMENT BY OR ON BEHALF
OF BORROWER IS MADE TO THE LENDER OR THE L/C ISSUER, OR THE LENDER OR THE L/C
ISSUER EXERCISES ITS RIGHT OF SETOFF, AND SUCH PAYMENT OR THE PROCEEDS OF SUCH
SETOFF 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 LENDER OR THE L/C ISSUER 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 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 SETOFF HAD NOT OCCURRED.
9.06
SUCCESSORS AND ASSIGNS.
(A)
SUCCESSORS AND ASSIGNS GENERALLY.
THE
PROVISIONS OF THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF
THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS PERMITTED HEREBY,
EXCEPT THAT NEITHER BORROWER NOR ANY OTHER LOAN PARTY MAY ASSIGN OR OTHERWISE
TRANSFER ANY OF ITS RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN
CONSENT OF THE