AN INDEMNITEE FOR BREACH IN BAD FAITH OF SUCH INDEMNITEE'S
OBLIGATIONS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, IF THE PARENT OR SUCH
OTHER LOAN PARTY HAS OBTAINED A FINAL JUDGMENT IN ITS FAVOR ON SUCH CLAIM AS
DETERMINED BY A COURT OF COMPETENT JURISDICTION.
(C)
REIMBURSEMENT BY LENDERS.
TO THE EXTENT THAT THE BORROWER FOR ANY
REASON FAILS TO 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 THE BORROWER
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 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, AND THE
REPAYMENT, SATISFACTION OR DISCHARGE OF ALL THE OTHER OBLIGATIONS.
11.05
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 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