ACTION OR DAMAGE ARISING UNDER OR IN CONNECTION
WITH UNITED STATES FEDERAL OR STATE SECURITIES LAWS.
(C)
TO THE EXTENT THAT THE BORROWER FAILS TO PAY ANY AMOUNT REQUIRED TO BE
PAID BY IT TO 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) OF SUCH UNPAID AMOUNT; PROVIDED THAT 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.
FOR
PURPOSES HEREOF, A LENDER'S "PRO RATA SHARE" SHALL BE DETERMINED BASED UPON ITS
SHARE OF THE SUM OF THE TOTAL OUTSTANDING LOANS AT THE TIME.
(D)
NO INDEMNITEE REFERRED TO IN SUBSECTION (B) ABOVE SHALL BE LIABLE FOR ANY
DAMAGES ARISING FROM THE WRONGFUL USE BY UNINTENDED RECIPIENTS OF ANY
INFORMATION OR OTHER MATERIALS DISTRIBUTED BY IT THROUGH TELECOMMUNICATIONS,
ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, EXCEPT TO THE EXTENT ARISING FROM THE BAD FAITH, GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR ANY OF ITS RELATED PARTIES, NOR SHALL
ANY INDEMNITEE OR ANY LOAN PARTY HAVE ANY LIABILITY FOR ANY SPECIAL, PUNITIVE,
INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH
(WHETHER BEFORE OR AFTER THE CLOSING DATE).
70
(E)
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE NOT LATER THAN 15
BUSINESS DAYS AFTER WRITTEN DEMAND THEREFOR, TOGETHER WITH AN INVOICE SETTING
FORTH IN REASONABLE DETAIL SUCH AMOUNTS AND THE BASIS 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
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 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.
Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their successors and assigns permitted hereby, 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 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 AND
APPLICABLE LAW, ANY LENDER MAY ASSIGN TO ONE OR MORE ASSIGNEES ALL OR A PORTION
OF ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT