COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE
JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
SUCH INDEMNITEE.
IT IS AGREED THAT THE EXPENSES FOR WHICH LEVEL 3 AND THE
BORROWER AGREE TO INDEMNIFY THE AGENT UNDER THIS PARAGRAPH SHALL NOT INCLUDE
EXPENSES ASSOCIATED WITH (I) THE ARRANGEMENT AND SYNDICATION OF THE
LOANS, (II) THE PREPARATION, EXECUTION AND DELIVERY OF THE LOAN DOCUMENTS,
(III) THE ENFORCEMENT OF THE LOAN DOCUMENTS OR (IV) THE FILING FEES IN
CONNECTION WITH ANY LOCAL FIXTURE FILINGS AND THE EXPENSES IN CONNECTION WITH
OBTAINING REAL ESTATE DESCRIPTIONS FOR FIXTURE FILINGS; PROVIDED, THAT NOTHING
IN THIS SENTENCE SHALL HAVE THE EFFECT OF REDUCING ANY RIGHTS OF THE AGENT OR
ITS AFFILIATES PURSUANT TO PARAGRAPH (A) OF THIS SECTION OR OF REDUCING THE
BORROWER'S RESPONSIBILITY FOR EXPENSES RELATED TO CLAIMS, LITIGATION,
INVESTIGATIONS OR PROCEEDINGS REFERRED TO IN CLAUSE (IV) OF THE IMMEDIATELY
PRECEDING SENTENCE.
(C)
TO THE EXTENT THAT LEVEL 3 AND THE BORROWER FAIL TO PAY ANY AMOUNT REQUIRED
TO BE PAID BY THEM TO THE AGENT OR ANY RELATED PARTY OF THE AGENT UNDER
PARAGRAPH (A) OR (B) OF THIS SECTION, EACH LENDER SEVERALLY AGREES TO PAY TO THE
AGENT SUCH LENDER'S PRO RATA SHARE (DETERMINED AS OF THE TIME THAT THE
APPLICABLE UNREIMBURSED EXPENSE OR INDEMNITY PAYMENT IS SOUGHT), BASED ON THE
AMOUNT OF ITS COMMITMENT OR OUTSTANDING LOANS OR, IF NO LOANS SHALL BE
OUTSTANDING, ON THE AMOUNT OF ITS LOANS ON THE MOST RECENT DATE ON WHICH LOANS
WERE OUTSTANDING, OF SUCH UNPAID AMOUNT; PROVIDED THAT (I) THE UNREIMBURSED
EXPENSE OR INDEMNIFIED LOSS, CLAIM, DAMAGE, LIABILITY OR RELATED EXPENSE, AS THE
CASE MAY BE, WAS INCURRED BY OR ASSERTED AGAINST THE AGENT IN ITS CAPACITY AS
SUCH AND (II) SUCH INDEMNITY SHALL NOT, AS TO THE AGENT OR ANY RELATED PARTY, 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 THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE AGENT OR SUCH RELATED PARTY, AS THE CASE MAY BE.
(D)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER LEVEL 3 NOR THE BORROWER
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 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.
(A)
THE PROVISIONS OF THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO, THE
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INDEMNITEES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS PERMITTED HEREBY, EXCEPT
THAT (I) THE BORROWER MAY NOT ASSIGN OR OTHERWISE TRANSFER ANY OF ITS RIGHTS OR
OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN