WITH, OR AS A RESULT OF (I) THE
EXECUTION OR DELIVERY OF ANY LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT
CONTEMPLATED THEREBY, THE PERFORMANCE BY THE PARTIES TO THE LOAN DOCUMENTS OF
THEIR RESPECTIVE OBLIGATIONS THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS
OR ANY OTHER TRANSACTIONS CONTEMPLATED THEREBY, (II) ANY LOAN OR LETTER OF
CREDIT OR THE USE OF THE PROCEEDS THEREOF INCLUDING ANY REFUSAL OF 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 ACTUAL OR ALLEGED PRESENCE OR RELEASE OF
HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE PARENT, THE
BORROWER OR ANY OF THE SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN
ANY WAY TO THE PARENT, THE BORROWER OR ANY OF THE 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 BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE
RESULTED FROM (A) THE BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
INDEMNITEE OR ANY OF ITS RELATED PARTIES, (B) ANY CLAIMS OF SUCH INDEMNITEE
AGAINST ANY OTHER INDEMNITEE AND/OR (C) THE BREACH BY SUCH INDEMNITEE OF ITS
OBLIGATIONS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT.
(C)
TO THE EXTENT THAT THE BORROWER FAILS TO
PAY ANY AMOUNT REQUIRED TO BE PAID BY IT TO THE ADMINISTRATIVE AGENT, ANY
ISSUING BANK OR THE SWINGLINE LENDER UNDER PARAGRAPH (A) OR (B) OF THIS SECTION,
EACH REVOLVING LENDER SEVERALLY AGREES TO PAY TO THE ADMINISTRATIVE AGENT, SUCH
ISSUING BANK OR THE SWINGLINE LENDER, AS APPLICABLE, AN AMOUNT EQUAL TO THE
PRODUCT OF SUCH UNPAID AMOUNT MULTIPLIED BY A FRACTION, THE NUMERATOR OF WHICH
IS SUCH REVOLVING LENDER'S TOTAL CREDIT EXPOSURE AND THE DENOMINATOR OF WHICH IS
THE AGGREGATE TOTAL CREDIT EXPOSURE OF ALL REVOLVING LENDERS (IN EACH CASE
DETERMINED AS OF THE TIME THAT THE APPLICABLE UNREIMBURSED EXPENSE OR INDEMNITY
PAYMENT IS SOUGHT OR, IN THE EVENT THAT NO REVOLVING LENDER SHALL HAVE ANY TOTAL
CREDIT EXPOSURE AT SUCH TIME, AS OF THE LAST TIME AT WHICH ANY REVOLVING LENDER
HAD A TOTAL CREDIT EXPOSURE), PROVIDED THAT THE UNREIMBURSED EXPENSE OR
INDEMNIFIED LOSS, CLAIM, DAMAGE, LIABILITY OR RELATED EXPENSE, AS APPLICABLE,
WAS INCURRED BY OR ASSERTED AGAINST THE ADMINISTRATIVE AGENT, SUCH 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 AND ACTUAL DAMAGES) ARISING OUT OF, IN
CONNECTION WITH,