OR DEDUCTION OF ANY KIND.
(D)
NON-FUNDING LENDERS.
THE FAILURE OF ANY
NON-FUNDING LENDER TO MAKE ANY REVOLVING CREDIT ADVANCE OR ANY PAYMENT REQUIRED
BY IT HEREUNDER, OR TO FUND ANY PURCHASE OF ANY PARTICIPATION IN ANY SWING LINE
LOAN TO BE MADE OR FUNDED BY IT ON THE DATE SPECIFIED THEREFOR SHALL NOT RELIEVE
ANY OTHER LENDER (EACH SUCH OTHER REVOLVING LENDER, AN "OTHER LENDER") OF ITS
OBLIGATIONS TO MAKE SUCH ADVANCE OR FUND THE PURCHASE OF ANY SUCH PARTICIPATION
ON SUCH DATE, BUT NEITHER ANY OTHER LENDER NOR AGENT SHALL BE RESPONSIBLE FOR
THE FAILURE OF ANY NON-FUNDING LENDER TO MAKE AN ADVANCE, FUND THE PURCHASE OF A
PARTICIPATION OR MAKE ANY OTHER PAYMENT REQUIRED HEREUNDER.
NOTWITHSTANDING
ANYTHING SET FORTH HEREIN TO THE CONTRARY, A NON-FUNDING LENDER SHALL NOT HAVE
ANY VOTING OR CONSENT RIGHTS UNDER OR WITH RESPECT TO ANY LOAN DOCUMENT OR
CONSTITUTE A "LENDER" OR A "REVOLVING LENDER" OR A "SUPERMAJORITY LENDER" (OR BE
INCLUDED IN THE CALCULATION OF "REQUISITE LENDERS" OR "SUPERMAJORITY LENDERS"
HEREUNDER) FOR ANY VOTING OR CONSENT RIGHTS UNDER OR WITH RESPECT TO ANY LOAN
DOCUMENT.
SECTION 9.
MISCELLANEOUS
9.1.
INDEMNITIES.
BORROWER AGREES, JOINTLY AND
SEVERALLY, TO INDEMNIFY, PAY, AND HOLD AGENT, EACH LENDER, EACH L/C ISSUER AND
THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND
ATTORNEYS (THE "INDEMNITEES") HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS,
COSTS AND EXPENSES (INCLUDING ALL REASONABLE FEES AND EXPENSES OF COUNSEL TO
SUCH INDEMNITEES) OF ANY KIND OR NATURE WHATSOEVER THAT MAY BE IMPOSED ON,
INCURRED BY, OR ASSERTED AGAINST THE INDEMNITEE AS A RESULT OF SUCH INDEMNITEES
BEING A PARTY TO THIS AGREEMENT OR THE TRANSACTIONS CONSUMMATED PURSUANT TO THIS
AGREEMENT OR OTHERWISE RELATING TO ANY OF THE RELATED TRANSACTIONS; PROVIDED,
THAT BORROWER SHALL HAVE NO OBLIGATION TO AN INDEMNITEE HEREUNDER WITH RESPECT
TO LIABILITIES TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THAT INDEMNITEE AS DETERMINED BY A COURT OF COMPETENT
JURISDICTION.
IF AND TO THE EXTENT THAT THE FOREGOING UNDERTAKING MAY BE
UNENFORCEABLE FOR ANY REASON, BORROWER AGREES TO MAKE THE MAXIMUM CONTRIBUTION
TO THE PAYMENT AND SATISFACTION THEREOF WHICH IS PERMISSIBLE UNDER APPLICABLE
LAW.
66
9.2.
AMENDMENTS AND WAIVERS.
(A)
EXCEPT FOR ACTIONS EXPRESSLY PERMITTED TO
BE TAKEN BY AGENT, NO AMENDMENT, MODIFICATION, TERMINATION OR WAIVER OF ANY
PROVISION OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY CONSENT TO ANY
DEPARTURE BY ANY CREDIT PARTY THEREFROM, SHALL IN ANY EVENT BE EFFECTIVE UNLESS
THE SAME SHALL BE IN WRITING AND SIGNED BY BORROWER, AND BY REQUISITE LENDERS,
SUPERMAJORITY LENDERS OR ALL AFFECTED LENDERS, AS APPLICABLE.
EXCEPT AS SET
FORTH IN CLAUSE (B) BELOW, ALL SUCH AMENDMENTS, MODIFICATIONS, TERMINATIONS OR
WAIVERS REQUIRING THE CONSENT OF ANY LENDERS SHALL REQUIRE THE WRITTEN CONSENT
OF REQUISITE LENDERS.
(B)
NO AMENDMENT, MODIFICATION, TERMINATION OR
WAIVER SHALL, UNLESS IN WRITING AND SIGNED BY AGENT AND EACH LENDER DIRECTLY
AFFECTED THEREBY:
(I) INCREASE THE PRINCIPAL AMOUNT, OR POSTPONE OR EXTEND THE
SCHEDULED