OR (IV) IN TAKING ANY OTHER ACTION
IN OR WITH RESPECT TO ANY SUIT OR PROCEEDING (BANKRUPTCY OR OTHERWISE) DESCRIBED
IN CLAUSE (I), (II) OR (III) ABOVE.
10.3
INDEMNITY.
(A)
IN ADDITION TO THE PAYMENT OF EXPENSES
PURSUANT TO SECTION 10.2, WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY
SHALL BE CONSUMMATED, EACH CREDIT PARTY AGREES TO DEFEND (SUBJECT TO
INDEMNITEES' SELECTION OF COUNSEL), INDEMNIFY, PAY AND HOLD HARMLESS, EACH
FACILITY AGENT, AND EACH LENDER AND THE OFFICERS, PARTNERS, DIRECTORS, TRUSTEES,
EMPLOYEES, AGENTS, SUB-AGENTS AND AFFILIATES OF EACH FACILITY AGENT 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
81
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.
(B)
TO THE EXTENT PERMITTED BY APPLICABLE LAW,
NO CREDIT PARTY SHALL ASSERT, AND EACH CREDIT PARTY HEREBY WAIVES, ANY CLAIM
AGAINST EACH LENDER 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