FOR
PURPOSES HEREOF, A LENDER'S "PRO RATA SHARE" SHALL BE DETERMINED BASED UPON ITS
SHARE OF THE SUM OF THE TOTAL REVOLVING EXPOSURES AND UNUSED REVOLVING
COMMITMENTS AT THE TIME.
(D)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SYMMETRY NOR THE
BORROWERS SHALL ASSERT, AND EACH HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE
(I) FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF INFORMATION OR OTHER
MATERIALS OBTAINED THROUGH ELECTRONIC TELECOMMUNICATIONS OR OTHER INFORMATION
TRANSMISSION SYSTEMS (INCLUDING THE INTERNET), SO LONG AS COMMERCIALLY
REASONABLE AND CUSTOMARY EFFORTS GENERALLY ARE MADE TO SAFEGUARD ACCESS THERETO,
IT BEING UNDERSTOOD THAT THIS CLAUSE (I) IS NOT INTENDED TO EXCULPATE ANY
KNOWING AND INTENTIONAL BREACH OF ANY CONFIDENTIALITY AGREEMENT, OR (II) 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 PAYABLE NOT LATER THAN 10 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
ANY 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 WITHOUT THE PRIOR WRITTEN CONSENT OF EACH LENDER (AND ANY ATTEMPTED
ASSIGNMENT OR TRANSFER BY A 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. NOTHING IN THIS
AGREEMENT, EXPRESSED OR IMPLIED, SHALL BE CONSTRUED TO CONFER UPON ANY
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PERSON (OTHER THAN THE PARTIES HERETO, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS
PERMITTED HEREBY (INCLUDING ANY AFFILIATE OF ANY 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 ADMINISTRATIVE 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 ASSIGN TO ONE OR MORE ASSIGNEES ALL OR A PORTION OF ITS RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING ALL OR A PORTION OF ITS REVOLVING
COMMITMENT AND THE LOANS AND REIMBURSEMENT OBLIGATIONS IN RESPECT OF BAS AND
LETTERS OF CREDIT AT THE TIME OWING TO IT) WITH THE PRIOR WRITTEN CONSENT (SUCH
CONSENT NOT TO BE UNREASONABLY WITHHELD) OF:
(A) the Borrowers, provided that no consent of the Borrowers shall be required
for an assignment to a Lender or to an Affiliate of a Lender, or, if an Event of
Default under clause (a), (b),