A RESULT OF (I) THE
EXECUTION OR DELIVERY OF THE LOAN DOCUMENTS OR ANY AGREEMENT OR INSTRUMENT
CONTEMPLATED THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE
OBLIGATIONS THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS OR ANY OTHER
TRANSACTIONS CONTEMPLATED HEREBY, (II) ANY LOAN OR LETTER OF CREDIT OR THE USE
OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY AN ISSUING BANK TO HONOR A
DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN
CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER
OF CREDIT), (III) ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO ANY BORROWER
OR ANY OF ITS SUBSIDIARIES OR TO ANY PROPERTY OWNED OR OPERATED AT ANY TIME BY
ANY 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
139
CONTRACT, TORT OR ANY OTHER THEORY AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A
PARTY THERETO (AND REGARDLESS OF WHETHER SUCH MATTER IS INITIATED BY A THIRD
PARTY OR BY ANY BORROWER, ANY OTHER LOAN PARTY OR ANY OF THEIR RESPECTIVE
AFFILIATES); 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 ANY BORROWER FAILS TO PAY ANY AMOUNT REQUIRED
TO BE PAID BY IT TO THE AGENT, A CO-COLLATERAL AGENT, AN ISSUING BANK OR THE
SWINGLINE LENDER UNDER PARAGRAPH (A) OR (B) OF THIS SECTION, EACH LENDER
SEVERALLY AGREES TO PAY TO THE AGENT, SUCH CO-COLLATERAL AGENT, SUCH ISSUING
BANK OR THE SWINGLINE LENDER, AS THE CASE MAY BE, SUCH LENDER'S APPLICABLE TOTAL
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 THE
AGENT, ANY CO-COLLATERAL AGENT, ANY ISSUING BANK OR THE SWINGLINE LENDER IN ITS
CAPACITY AS SUCH.
(D)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO PARTY TO THIS
AGREEMENT SHALL ASSERT, AND EACH HEREBY WAIVES, ANY CLAIM AGAINST ANY OTHER
PARTY HERETO OR ANY RELATED PARTY THEREOF, 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 PAID, UNLESS OTHERWISE
SPECIFIED, PROMPTLY AFTER WRITTEN DEMAND THEREFOR.
SECTION 9.04.
Successors and Assigns.
(a)
The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties