SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS 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 ANY BORROWER OR ANY OF
THEIR RESTRICTED SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY
TO ANY BORROWER OR ANY OF THEIR RESTRICTED 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, PENALTIES, LIABILITIES OR RELATED EXPENSES ARE
DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE
JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
SUCH INDEMNITEE.
(C)
TO THE EXTENT THAT THE BORROWERS FAIL TO PAY ANY AMOUNT
REQUIRED TO BE PAID BY IT TO ANY AGENT, ANY ISSUING BANK OR ANY SWINGLINE LENDER
UNDER PARAGRAPH (A) OR (B) OF THIS SECTION, EACH LENDER SEVERALLY AGREES TO PAY
TO SUCH AGENT, SUCH ISSUING BANK OR SUCH 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; PROVIDED THAT THE UNREIMBURSED EXPENSE OR INDEMNIFIED LOSS, CLAIM,
DAMAGE, PENALTY, LIABILITY OR RELATED EXPENSE, AS THE CASE MAY BE, WAS INCURRED
BY OR ASSERTED AGAINST SUCH AGENT, SUCH ISSUING BANK OR SUCH SWINGLINE LENDER IN
ITS CAPACITY AS SUCH.
(D)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO LOAN PARTY
SHALL ASSERT, AND EACH 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 OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED
HEREBY, 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 PROMPTLY
AFTER WRITTEN DEMAND THEREFOR.
SECTION 9.04
SUCCESSORS AND ASSIGNS.
146
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(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 ANY ISSUING BANK THAT
ISSUES ANY LETTER OF CREDIT), EXCEPT THAT (I) THE BORROWERS MAY NOT ASSIGN OR
OTHERWISE TRANSFER ANY OF THEIR RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE
PRIOR WRITTEN CONSENT OF EACH LENDER (AND ANY ATTEMPTED ASSIGNMENT OR TRANSFER
BY THE BORROWERS 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 SECTION.
NOTHING IN THIS AGREEMENT, EXPRESSED OR IMPLIED,
SHALL BE CONSTRUED TO CONFER UPON ANY PERSON (OTHER THAN THE PARTIES HERETO,
THEIR RESPECTIVE SUCCESSORS AND ASSIGNS PERMITTED HEREBY (INCLUDING ANY
AFFILIATE OF ANY ISSUING