LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER
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PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER'S OR THE ADMINISTRATIVE
AGENT'S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE
EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM
SUCH AGENT PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(J)
THE ADMINISTRATIVE AGENT AGREES
THAT THE RECEIPT OF THE COMMUNICATIONS BY THE ADMINISTRATIVE AGENT AT ITS E-MAIL
ADDRESS SET FORTH IN SCHEDULE 10.11(A) SHALL CONSTITUTE EFFECTIVE DELIVERY OF
THE COMMUNICATIONS TO THE ADMINISTRATIVE AGENT FOR PURPOSES OF THE FINANCING
DOCUMENTS. EACH LENDER AGREES THAT NOTICE TO IT (AS PROVIDED IN THE NEXT
SENTENCE) SPECIFYING THAT THE COMMUNICATIONS HAVE BEEN POSTED TO THE
PLATFORM SHALL CONSTITUTE EFFECTIVE DELIVERY OF THE COMMUNICATIONS TO SUCH
LENDER FOR PURPOSES OF THE FINANCING DOCUMENTS. EACH LENDER AGREES TO NOTIFY THE
ADMINISTRATIVE AGENT IN WRITING (INCLUDING BY ELECTRONIC COMMUNICATION) FROM
TIME TO TIME OF SUCH LENDER'S E-MAIL ADDRESS TO WHICH THE FOREGOING NOTICE
MAY BE SENT BY ELECTRONIC TRANSMISSION AND THAT THE FOREGOING NOTICE MAY BE SENT
TO SUCH E-MAIL ADDRESS.
(K)
NOTWITHSTANDING CLAUSES (G) TO
(J) ABOVE, NOTHING HEREIN SHALL PREJUDICE THE RIGHT OF ANY AGENT OR LENDER TO
GIVE ANY NOTICE OR OTHER COMMUNICATION PURSUANT TO ANY FINANCING DOCUMENT IN ANY
OTHER MANNER SPECIFIED IN SUCH FINANCING DOCUMENT.
SECTION 11.12
PATRIOT ACT NOTICE. EACH SENIOR
SECURED PARTY (FOR ITSELF AND NOT ON BEHALF OF ANY OTHER) HEREBY NOTIFIES THE
BORROWER THAT PURSUANT TO THE REQUIREMENTS OF THE PATRIOT ACT, IT IS REQUIRED TO
OBTAIN, VERIFY AND RECORD INFORMATION THAT IDENTIFIES THE BORROWER, WHICH
INFORMATION INCLUDES THE NAME AND ADDRESS OF THE BORROWER AND OTHER INFORMATION
THAT WILL ALLOW SUCH SENIOR SECURED PARTY, TO IDENTIFY THE BORROWER IN
ACCORDANCE WITH THE PATRIOT ACT.
SECTION 11.13
PAYMENTS SET ASIDE. TO THE EXTENT
THAT ANY PAYMENT BY OR ON BEHALF OF THE BORROWER IS MADE TO ANY AGENT OR LENDER,
OR ANY AGENT OR LENDER 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 SUCH AGENT OR LENDER IN ITS
DISCRETION) TO BE REPAID TO A TRUSTEE, RECEIVER OR ANY OTHER PARTY, IN
CONNECTION WITH ANY INSOLVENCY OR LIQUIDATION PROCEEDING OR OTHERWISE, THEN
(A) TO THE EXTENT OF SUCH RECOVERY, THE OBLIGATION OR PART THEREOF ORIGINALLY
INTENDED TO BE SATISFIED SHALL BE REVIVED
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AND CONTINUED IN FULL FORCE AND EFFECT AS IF SUCH PAYMENT HAD NOT BEEN MADE OR
SUCH SETOFF HAD NOT OCCURRED, AND (B) EACH LENDER SEVERALLY AGREES TO PAY TO
EACH AGENT UPON DEMAND ITS APPLICABLE SHARE (WITHOUT DUPLICATION) OF ANY AMOUNT
SO RECOVERED FROM OR REPAID BY SUCH AGENT, PLUS INTEREST THEREON