OF SUCH LETTER OF CREDIT), (III) ANY ACTUAL OR ALLEGED PRESENCE OR
RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE
BORROWER OR ANY OF ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN
ANY WAY TO THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR (IV) ANY ACTUAL OR
PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF
THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND
REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO; PROVIDED THAT SUCH
INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH
LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED BY A
COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM (A) THE WILLFUL
MISCONDUCT, BAD FAITH, FRAUD OR GROSS NEGLIGENCE OF SUCH INDEMNITEE, ITS
CONTROLLED AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS AND CONTROLLING PERSONS (EACH OFFICER, DIRECTOR, EMPLOYEE, AGENT OR
CONTROLLING PERSON OF ANY SUCH INDEMNITEE OR ANY OF SUCH ENTITY'S CONTROLLED
AFFILIATES, A "RELATED PARTY" OF SUCH ENTITY), (B) ANY MATERIAL BREACH OF THE
EXPRESS OBLIGATIONS OF SUCH INDEMNITEE OR ANY OF ITS AFFILIATES OR RELATED
PARTIES HEREUNDER OR (C) ANY
65
DISPUTE SOLELY AMONG INDEMNITEES (NOT ARISING AS A RESULT OF ANY ACT OR OMISSION
BY THE BORROWER OR ANY OF ITS AFFILIATES).
(C)
TO THE EXTENT THAT THE BORROWER FAILS TO PAY ANY AMOUNT REQUIRED TO BE PAID
BY IT TO THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR THE SWINGLINE LENDER
UNDER PARAGRAPH (A) OR (B) OF THIS SECTION, EACH LENDER SEVERALLY AGREES TO PAY
TO THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR THE SWINGLINE LENDER, AS THE
CASE MAY BE, SUCH LENDER'S APPLICABLE PERCENTAGE (DETERMINED AS OF THE TIME THAT
THE APPLICABLE UNREIMBURSED EXPENSE OR INDEMNITY PAYMENT IS SOUGHT) OF SUCH
UNPAID AMOUNT (IT BEING UNDERSTOOD THAT THE BORROWER'S FAILURE TO PAY ANY SUCH
AMOUNT SHALL NOT RELIEVE THE BORROWER OF ANY DEFAULT IN THE PAYMENT THEREOF);
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, THE ISSUING BANK OR THE SWINGLINE LENDER 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, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED
HEREBY OR THEREBY, THE TRANSACTIONS, ANY LOAN OR LETTER OF CREDIT OR THE USE OF
THE PROCEEDS THEREOF.
(E)
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE NOT LATER THAN FIFTEEN
(15) DAYS AFTER WRITTEN DEMAND THEREFOR.
(F)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NOTHING IN THIS
SECTION 9.03 SHALL APPLY TO TAXES.
SECTION 9.04.
SUCCESSORS AND ASSIGNS.
(A)
THE PROVISIONS OF THIS AGREEMENT
SHALL BE BINDING UPON AND