INDEMNITEES' SELECTION OF COUNSEL),
INDEMNIFY, PAY AND HOLD HARMLESS, EACH FACILITY AGENT, EACH ISSUING BANK AND
EACH LENDER AND THE OFFICERS, PARTNERS, DIRECTORS, TRUSTEES, EMPLOYEES, AGENTS,
SUB-AGENTS AND AFFILIATES OF EACH FACILITY AGENT, EACH ISSUING BANK 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.
118
(B)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO CREDIT PARTY SHALL
ASSERT, AND EACH CREDIT PARTY HEREBY WAIVES, ANY CLAIM AGAINST EACH LENDER, EACH
ISSUING BANK 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, ISSUING BANK 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