ANY OTHER AGENT, ANY LC FACILITY ISSUING BANK,
ANY LEAD ARRANGER OR ANY SUCH LENDER BY ANY SECURITY HOLDER OR CREDITOR THEREOF
ARISING OUT OF AND BASED UPON RIGHTS AFFORDED ANY SUCH SECURITY HOLDER OR
CREDITOR SOLELY IN ITS CAPACITY AS SUCH, (III) ANY MATERIAL BREACH OF ANY LOAN
DOCUMENT BY THE PARTY TO BE INDEMNIFIED OR (IV) DISPUTES AMONG THE
ADMINISTRATIVE AGENT, ANY LC FACILITY ISSUING BANK, THE LENDERS AND/OR THEIR
TRANSFEREES.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NO
INDEMNITEE SHALL BE LIABLE FOR ANY CONSEQUENTIAL OR PUNITIVE DAMAGES IN
CONNECTION WITH THE FACILITIES.
ALL AMOUNTS DUE UNDER THIS SUBSECTION 10.5
SHALL BE PAYABLE NOT LATER THAN 30 DAYS AFTER WRITTEN DEMAND THEREFOR.
STATEMENTS REFLECTING AMOUNTS PAYABLE BY THE LOAN PARTIES PURSUANT TO THIS
SUBSECTION 10.5 SHALL BE SUBMITTED TO THE ADDRESS OF THE BORROWER SET FORTH IN
SUBSECTION 10.2, OR TO SUCH OTHER PERSON OR ADDRESS AS MAY BE HEREAFTER
DESIGNATED BY THE BORROWER IN A NOTICE TO THE ADMINISTRATIVE AGENT.
NOTWITHSTANDING THE FOREGOING, EXCEPT AS PROVIDED IN CLAUSES (B) AND (C) ABOVE,
THE BORROWER SHALL HAVE NO OBLIGATION UNDER THIS SUBSECTION 10.5 TO ANY
INDEMNITEE WITH RESPECT TO ANY TAXES IMPOSED, LEVIED, COLLECTED, WITHHELD OR
ASSESSED BY ANY GOVERNMENTAL AUTHORITY.
THE AGREEMENTS IN THIS SUBSECTION 10.5
SHALL SURVIVE REPAYMENT OF THE TERM LOANS, THE LC FACILITY PARTICIPATIONS AND
ALL OTHER AMOUNTS PAYABLE HEREUNDER.
139
10.6
SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND
ASSIGNMENTS.
(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 (INCLUDING ANY AFFILIATE OF THE LC
FACILITY ISSUING BANK THAT ISSUES ANY LETTERS OF CREDIT), EXCEPT THAT (I) OTHER
THAN IN ACCORDANCE WITH SUBSECTION 7.3, 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 SUBSECTION 10.6.
(B)
(I)
SUBJECT TO THE CONDITIONS SET FORTH IN
PARAGRAPH (B)(II) BELOW, ANY LENDER OTHER THAN A CONDUIT LENDER MAY, IN THE
ORDINARY COURSE OF BUSINESS AND IN ACCORDANCE WITH APPLICABLE LAW, ASSIGN TO ONE
OR MORE ASSIGNEES (EACH, AN "ASSIGNEE") ALL OR A PORTION OF ITS RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING ITS TERM LOAN COMMITMENT, LC
FACILITY PARTICIPATION (INCLUDING ITS RIGHTS IN RESPECT OF ITS LC FACILITY
DEPOSIT AS PROVIDED HEREIN) AND/OR TERM LOANS, PURSUANT TO AN ASSIGNMENT AND
ACCEPTANCE WITH THE PRIOR WRITTEN CONSENT (SUCH CONSENT NOT TO BE UNREASONABLY
WITHHELD OR DELAYED, IT BEING AGREED THAT ANY INCREASE IN ANY UNITED STATES
WITHHOLDING TAXES IMPOSED PURSUANT TO SECTION 1441 OR 1442 OF THE CODE IN
CONNECTION WITH THE PAYMENT OF THE LC FACILITY FEES SHALL NOT BE A REASONABLE
BASIS FOR WITHHOLDING CONSENT) OF:
(A)
The Borrower, provided that no consent of the
Borrower shall