LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN CONNECTION
WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT,
BUT SUBJECT TO SECTION 2.05(F)), (III) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE
OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY CURRENTLY OR
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FORMERLY OWNED OR OPERATED BY HOLDINGS, THE PARENT BORROWER OR ANY SUBSIDIARY,
OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO HOLDINGS, THE PARENT
BORROWER OR ANY SUBSIDIARY, 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, WHETHER BROUGHT BY A THIRD PARTY OR BY
HOLDINGS, THE PARENT BORROWER OR ANY SUBSIDIARY 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 JUDGMENT TO HAVE RESULTED FROM THE GROSS
NEGLIGENCE, BAD FAITH OR WILFUL MISCONDUCT OF SUCH INDEMNITEE OR ANY OF ITS
RELATED PARTIES.
(C)
TO THE EXTENT THAT EITHER BORROWER FAILS TO PAY ANY AMOUNT REQUIRED TO BE
PAID BY IT TO THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR THE SWINGLINE LENDER
UNDER PARAGRAPH (A) OR (B) OF THIS SECTION 9.03, EACH LENDER SEVERALLY AGREES TO
PAY TO THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR THE SWINGLINE LENDER, AS
THE CASE MAY BE, SUCH LENDER'S PRO RATA SHARE (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 ADMINISTRATIVE AGENT, THE ISSUING BANK OR
THE SWINGLINE LENDER IN ITS CAPACITY AS SUCH.
FOR PURPOSES HEREOF, A LENDER'S
"PRO RATA SHARE" SHALL BE DETERMINED BASED UPON ITS SHARE OF THE AGGREGATE
REVOLVING EXPOSURES, OUTSTANDING TERM LOANS AND UNUSED COMMITMENTS AT THE TIME.
(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, ANY LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE
TRANSACTIONS, ANY LOAN, B/A OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS
THEREOF.
(E)
ALL AMOUNTS DUE UNDER THIS SECTION 9.03 SHALL BE PAYABLE NOT LATER THAN
FIVE BUSINESS DAYS 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 HERETO AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS PERMITTED HEREBY (INCLUDING ANY AFFILIATE OF
THE ISSUING BANK THAT ISSUES ANY LETTER OF CREDIT), EXCEPT THAT (I) NEITHER
BORROWER MAY ASSIGN OR OTHERWISE TRANSFER ANY OF ITS RIGHTS OR OBLIGATIONS
HEREUNDER