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"); PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE
AVAILABLE TO THE EXTENT THAT SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, CLAIMS, DEMANDS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR
DISBURSEMENTS ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND
NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE BAD FAITH, GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR FROM A MATERIAL BREACH BY SUCH
INDEMNITEE OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS; AND PROVIDED FURTHER
THAT THE BORROWER SHALL NOT BE REQUIRED TO REIMBURSE THE LEGAL FEES AND EXPENSES
OF MORE THAN ONE OUTSIDE COUNSEL (IN ADDITION TO ANY REASONABLY NECESSARY
SPECIAL COUNSEL AND UP TO ONE LOCAL COUNSEL IN EACH APPLICABLE LOCAL
JURISDICTION) FOR ALL INDEMNITEES UNLESS, IN THE WRITTEN OPINION OF OUTSIDE
COUNSEL REASONABLY SATISFACTORY TO THE BORROWER AND THE ADMINISTRATIVE AGENT,
REPRESENTATION OF ALL SUCH INDEMNITEES WOULD BE INAPPROPRIATE DUE TO THE
EXISTENCE OF AN ACTUAL OR POTENTIAL CONFLICT OF INTEREST.
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 CONNECTION WITH THIS AGREEMENT, NOR SHALL ANY INDEMNITEE
HAVE ANY LIABILITY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN
CONNECTION HEREWITH OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE).
ALL AMOUNTS DUE UNDER THIS SECTION 10.05 SHALL BE PAYABLE WITHIN TEN BUSINESS
DAYS AFTER DEMAND THEREFOR.
EACH OF HOLDINGS AND THE BORROWER AGREES NOT TO
ASSERT OR TO PERMIT ANY OF THEIR RESPECTIVE SUBSIDIARIES TO ASSERT ANY CLAIM
AGAINST ANY AGENT, ANY LENDER, ANY OF THEIR AFFILIATES OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS AND ADVISERS, AND
EACH OF THE AGENTS, AND THE LENDERS AGREE NOT TO ASSERT OR PERMIT ANY OF THEIR
RESPECTIVE SUBSIDIARIES TO ASSERT ANY CLAIM AGAINST HOLDINGS, THE BORROWER OR
ANY OF THEIR RESPECTIVE SUBSIDIARIES OR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS OR ADVISORS, ON ANY THEORY OF LIABILITY,
FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR
OTHERWISE RELATING TO THE LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED
HEREIN OR THEREIN OR THE ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE LOANS OR
OF THE LETTERS OF CREDIT.
THE AGREEMENTS IN THIS SECTION SHALL SURVIVE THE
RESIGNATION OF THE ADMINISTRATIVE AGENT AND ANY COLLATERAL AGENT, THE
REPLACEMENT OF ANY LENDER, THE TERMINATION OF THE COMMITMENTS AND THE REPAYMENT,
SATISFACTION OR DISCHARGE OF ALL THE OTHER FINANCE OBLIGATIONS
132
SECTION 10.06
PAYMENTS SET ASIDE.
TO THE EXTENT THAT ANY PAYMENT BY OR ON
BEHALF OF THE BORROWER IS MADE TO THE ADMINISTRATIVE AGENT, ANY COLLATERAL AGENT
OR ANY LENDER, OR THE ADMINISTRATIVE AGENT, A COLLATERAL AGENT OR ANY LENDER
EXERCISES ITS