LOAN PARTY OR ANY OF
THE BORROWER'S OR SUCH LOAN PARTY'S DIRECTORS, SHAREHOLDERS OR CREDITORS, AND
REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO; PROVIDED THAT SUCH
INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH
LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES HAVE RESULTED FROM THE
GROSS NEGLIGENCE, BAD FAITH, OR WILLFUL MISCONDUCT OR MATERIAL BREACH OF THE
OBLIGATIONS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OF SUCH INDEMNITEE.
(C)
REIMBURSEMENT BY LENDERS.
TO THE EXTENT
THAT THE 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 THE
ADMINISTRATIVE AGENT (OR ANY SUB-AGENT THEREOF), OR ANY RELATED PARTY OF ANY OF
THE FOREGOING, EACH LENDER SEVERALLY AGREES TO PAY TO THE ADMINISTRATIVE 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 THE ADMINISTRATIVE AGENT (OR ANY SUCH SUB-AGENT), OR AGAINST ANY RELATED
PARTY OF ANY OF THE FOREGOING ACTING FOR THE ADMINISTRATIVE AGENT (OR ANY SUCH
SUB-AGENT).
THE OBLIGATIONS OF THE LENDERS UNDER THIS SUBSECTION (C) ARE
SUBJECT TO THE PROVISIONS OF SECTION 2.09(D).
(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 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
77
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.
(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 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.
12.05
Payments Set Aside.
To the extent that any payment by
or on behalf of the Borrower is made to the Administrative Agent