AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER (INCLUDING THE
REASONABLE FEES AND DISBURSEMENTS OF COUNSEL FOR INDEMNITEES IN CONNECTION WITH
ANY INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING COMMENCED OR THREATENED
BY ANY CREDIT PARTY OR ANY OTHER PERSON, WHETHER OR NOT ANY SUCH INDEMNITEE
SHALL BE DESIGNATED AS A PARTY OR A POTENTIAL PARTY THERETO, AND ANY FEES OR
EXPENSES INCURRED BY INDEMNITEES IN ENFORCING THIS INDEMNITY), WHETHER DIRECT,
INDIRECT OR CONSEQUENTIAL AND WHETHER BASED ON ANY FEDERAL, STATE OR FOREIGN
LAWS, STATUTES, RULES OR REGULATIONS (INCLUDING SECURITIES AND COMMERCIAL LAWS,
STATUTES, RULES OR REGULATIONS AND ENVIRONMENTAL LAWS), ON COMMON LAW OR
EQUITABLE CAUSE OR ON CONTRACT OR OTHERWISE, THAT MAY BE IMPOSED ON, INCURRED
BY, OR ASSERTED AGAINST ANY SUCH INDEMNITEE, IN ANY MANNER RELATING TO OR
ARISING OUT OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (INCLUDING THE LENDERS' AGREEMENTS TO MAKE THE
CREDIT EXTENSIONS HEREUNDER OR THE USE OR INTENDED USE OF THE PROCEEDS THEREOF,
OR ANY ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS (INCLUDING THE ENFORCEMENT OF
THE GUARANTY)).
B.
TO THE EXTENT THAT THE UNDERTAKINGS TO
DEFEND, INDEMNIFY, PAY AND HOLD HARMLESS SET FORTH IN THIS SECTION 9.3 MAY BE
UNENFORCEABLE IN WHOLE OR IN PART BECAUSE THEY ARE VIOLATIVE OF ANY LAW OR
PUBLIC POLICY, THE CREDIT PARTIES 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.
C.
TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE CREDIT PARTIES AND EACH OF THEIR SUBSIDIARIES SHALL NOT ASSERT, AND EACH
HEREBY WAIVES, ANY CLAIM AGAINST THE LENDERS, THE AGENTS, THE LEAD ARRANGERS AND
THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS OR
AGENTS, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) (WHETHER OR NOT THE
CLAIM THEREFOR IS BASED ON CONTRACT, TORT
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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 OTHER LOAN 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 CREDIT PARTIES AND EACH OF ITS SUBSIDIARIES 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.
9.4
Exception for Subsidiary Borrowers.
Notwithstanding the foregoing, nothing in Sections 9.2 and 9.3 shall require a
payment by a Subsidiary Borrower if such payment would violate any Applicable
Law or if any Applicable Law would require minority shareholder approval, a
valuation or a discretionary order, provided that the Guarantor shall be liable
for any such