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 WILFUL MISCONDUCT OF SUCH
INDEMNITEE.
(C) TO THE EXTENT THAT THE BORROWER FAILS TO PAY ANY AMOUNT REQUIRED TO BE PAID
BY IT TO THE 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
ISSUING BANK OR THE SWINGLINE LENDER, AS THE CASE MAY BE, SUCH LENDER'S
APPLICABLE 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, THE ISSUING BANKS 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 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 AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS PERMITTED HEREBY (INCLUDING ANY AFFILIATE OF
AN ISSUING BANK THAT ISSUES ANY LETTER OF CREDIT), EXCEPT THAT (I) THE BORROWER
MAY NOT ASSIGN OR OTHERWISE TRANSFER ANY OF ITS RIGHTS OR OBLIGATIONS HEREUNDER
WITHOUT THE PRIOR WRITTEN CONSENT OF EACH LENDER (AND ANY ATTEMPTED ASSIGNMENT
OR TRANSFER BY THE BORROWER WITHOUT SUCH CONSENT SHALL BE NULL AND VOID) AND
(II) NO LENDER MAY ASSIGN OR OTHERWISE TRANSFER ITS RIGHTS OR OBLIGATIONS
HEREUNDER EXCEPT IN ACCORDANCE WITH THIS SECTION (ANY ATTEMPTED ASSIGNMENT OR
TRANSFER NOT COMPLYING WITH THE TERMS OF THIS SECTION SHALL BE NULL AND VOID).
NOTHING IN THIS AGREEMENT, EXPRESSED OR IMPLIED, SHALL BE CONSTRUED TO CONFER
UPON ANY PERSON (OTHER THAN THE PARTIES HERETO, THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS PERMITTED HEREBY (INCLUDING ANY AFFILIATE OF AN ISSUING BANK THAT ISSUES
ANY LETTER OF CREDIT), PARTICIPANTS (TO THE EXTENT PROVIDED IN PARAGRAPH (C) OF
THIS SECTION) AND, TO THE EXTENT EXPRESSLY CONTEMPLATED HEREBY, THE RELATED
PARTIES OF EACH OF THE AGENT, THE ISSUING BANKS AND THE LENDERS) ANY LEGAL OR
EQUITABLE RIGHT, REMEDY OR CLAIM UNDER OR BY REASON OF THIS AGREEMENT.
(B) (I)
SUBJECT TO THE CONDITIONS SET FORTH IN PARAGRAPH (B)(II) BELOW, ANY
LENDER MAY