TO HAVE RESULTED FROM THE GROSS
NEGLIGENCE OR WILFUL MISCONDUCT OF SUCH INDEMNITEE.
WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING AND IN ADDITION TO ANY INDEMNITY PROVIDED FOR
HEREIN, THE BORROWER SHALL PAY, AND HOLD EACH INDEMNITEE
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HARMLESS FROM, ANY CIVIL PENALTY OR FINE ASSESSED BY THE U.S. DEPARTMENT OF THE
TREASURY'S OFFICE OF FOREIGN ASSETS CONTROL AGAINST ANY INDEMNITEE, AND ALL
REASONABLE COSTS AND EXPENSES (INCLUDING COUNSEL FEES AND DISBURSEMENTS)
INCURRED IN CONNECTION WITH THE DEFENSE THEREOF, ARISING AS A RESULT OF THE
FUNDING OF LOANS OR THE ISSUANCE OF LENDER LETTERS OF CREDIT OR LETTER OF CREDIT
PARTICIPATION AGREEMENT OR THE ACCEPTANCE OF ANY PAYMENTS MADE UNDER A LOAN
DOCUMENT.
(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 PRO RATA SHARE (DETERMINED AS OF THE TIME THAT THE APPLICABLE
UNREIMBURSED EXPENSE OR INDEMNITY PAYMENT IS SOUGHT AND BASED UPON THE
OUTSTANDING PRINCIPAL BALANCE OF THE REVOLVING CREDIT EXPOSURE) 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 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 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 PROMPTLY AFTER
WRITTEN DEMAND THEREFOR.
Section 9.04.
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 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 ASSIGNEES ALL OR A
PORTION OF ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING ALL