AFFILIATES OF EACH FACILITY AGENT AND EACH LENDER (EACH, AN "INDEMNITEE"), FROM
AND AGAINST ANY AND ALL INDEMNIFIED LIABILITIES; PROVIDED, NO CREDIT PARTY SHALL
HAVE ANY OBLIGATION TO ANY INDEMNITEE HEREUNDER WITH RESPECT TO ANY INDEMNIFIED
LIABILITIES TO THE EXTENT A COURT OF COMPETENT JURISDICTION THAT SUCH
INDEMNIFIED LIABILITIES HAVE BEEN INCURRED BY REASON OF THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT BY SUCH INDEMNITEE, OR A BREACH IN BAD FAITH BY SUCH
INDEMNITEE OF ITS OBLIGATIONS UNDER THE CREDIT DOCUMENTS.
TO THE EXTENT THAT
THE UNDERTAKINGS TO DEFEND, INDEMNIFY, PAY AND HOLD HARMLESS SET FORTH IN THIS
SECTION 10.3 MAY BE UNENFORCEABLE IN WHOLE OR IN PART BECAUSE THEY ARE VIOLATIVE
OF ANY LAW OR PUBLIC POLICY, THE APPLICABLE CREDIT PARTY SHALL CONTRIBUTE THE
MAXIMUM PORTION THAT IT IS PERMITTED TO PAY AND SATISFY UNDER APPLICABLE LAW TO
THE PAYMENT AND SATISFACTION OF ALL INDEMNIFIED LIABILITIES INCURRED BY
INDEMNITEES OR ANY OF THEM.
(B)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO CREDIT PARTY SHALL
ASSERT, AND EACH CREDIT PARTY HEREBY WAIVES, ANY CLAIM AGAINST EACH LENDER AND
EACH FACILITY AGENT, AND EACH OF THEIR RESPECTIVE AFFILIATES, DIRECTORS,
EMPLOYEES, ATTORNEYS, AGENTS OR SUB-AGENTS, ON ANY THEORY OF LIABILITY, FOR
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT
LIMITATION, ANY LOSS OF PROFITS, BUSINESS OR ANTICIPATED SAVINGS) (AS OPPOSED TO
DIRECT OR ACTUAL DAMAGES) (WHETHER OR NOT THE CLAIM THEREFOR IS BASED ON
CONTRACT, TORT OR DUTY IMPOSED BY ANY APPLICABLE LEGAL REQUIREMENT,) ARISING OUT
OF, IN CONNECTION WITH, ARISING OUT OF, AS A RESULT OF, OR IN ANY WAY RELATED
TO, THIS AGREEMENT OR ANY CREDIT DOCUMENT OR ANY AGREEMENT OR INSTRUMENT
CONTEMPLATED HEREBY OR THEREBY OR REFERRED TO HEREIN OR THEREIN, THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR THE USE OF THE PROCEEDS
THEREOF OR ANY ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND
THE BORROWER AND EACH OTHER CREDIT PARTY HEREBY WAIVES, RELEASES AND AGREES NOT
TO SUE UPON ANY SUCH CLAIM OR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND
WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
(C)
EACH CREDIT PARTY AGREES THAT ANY INDEMNIFICATION OR OTHER
PROTECTION PROVIDED TO ANY INDEMNITEE PURSUANT TO THIS AGREEMENT (INCLUDING
PURSUANT TO THIS SECTION 10.3) OR ANY OTHER CREDIT DOCUMENT SHALL (I) SURVIVE
PAYMENT IN FULL OF THE OBLIGATIONS AND (II) INURE TO THE BENEFIT OF ANY PERSON
THAT WAS AT ANY TIME AN INDEMNITEE UNDER THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT.
(D)
IN NO EVENT SHALL ANY AGENT AFFILIATE HAVE ANY LIABILITY TO ANY
CREDIT PARTY, LENDER, OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING
DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR
EXPENSES (WHETHER IN TORT OR CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT
PARTY OR ANY AGENT AFFILIATE'S TRANSMISSION OF APPROVED ELECTRONIC
COMMUNICATIONS THROUGH THE INTERNET OR ANY USE OF THE PLATFORM, EXCEPT TO THE
EXTENT SUCH LIABILITY OF ANY AGENT AFFILIATE IS FOUND IN A FINAL NON-APPEALABLE
JUDGMENT BY A COURT OF