ServiceMagic 2012 Annual Report Download - page 344

whether or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders, affiliates or creditors or
any other third person; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (i) are determined by a court of competent jurisdiction in a final and nonappealable
judgment to have resulted from the gross negligence, willful misconduct or bad faith of such Indemnitee (or that of any of its
respective subsidiaries or any of their respective officers, directors, employees or members), (ii) are determined by a court of
competent jurisdiction in a final and nonappealable judgment to have results from a material breach of this Agreement by such
Imdemnitee or (iii) do not involve or arise from an act or omission by the Borrower or its subsidiaries or any of their respective
affiliates, partners, directors, officers, employees, agents, advisors or other representatives and is brought by an Indemnitee solely
against one or more other Indemnitees (other than claims against any Agent or any Lead Arranger in its capacity as such or in its
fulfilling such role). Each Indemnitee shall give prompt notice to the Borrower of any claim that may give rise to a claim against
the Borrower hereunder and shall consult with the Borrower in the conduct of such Indemnitee’s legal defense of such claim;
provided , however , than an Indemnitee’s failure to give such prompt notice to the Borrower or to seek such consultation with the
Borrower shall not constitute a defense to any claim for indemnification by such Indemnitee unless, and only to the extent that,
such failure materially prejudices the Borrower.
(c)
To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent such Lender’s Total
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 in its capacity as such.
(d)
To the extent permitted by applicable law, the parties shall not assert, and each hereby waives, any claim
against any other party, 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 or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e)
All amounts due under this Section shall be payable within ten (10) Business Days after written demand
therefor.
SECTION 9.05 Successors and Assigns .
(a)
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 (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more
financial institutions (“assignee” or “assignees”) all or a portion of its rights and
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