CAPACITY AS
SUCH, OR AGAINST ANY RELATED PARTY OF ANY OF THE FOREGOING ACTING FOR THE
ADMINISTRATIVE AGENT (OR ANY SUCH SUB-AGENT) OR ISSUING BANK IN CONNECTION WITH
SUCH CAPACITY. THE OBLIGATIONS OF THE LENDERS UNDER THIS PARAGRAPH (C) ARE
SUBJECT TO THE OTHER PROVISIONS OF THIS AGREEMENT CONCERNING SEVERAL LIABILITY
OF THE LENDERS.
(D)
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE
BORROWER NOR ANY OTHER LOAN PARTY SHALL ASSERT, AND HEREBY WAIVES, ANY CLAIM
AGAINST ANY INDEMNITEE, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE, AGGRAVATED OR EXEMPLARY DAMAGES (AS OPPOSED TO DIRECT
OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED
HEREBY OR THEREBY (OR ANY BREACH THEREOF), THE TRANSACTIONS, ANY LOAN OR LETTER
OF CREDIT OR THE USE OF THE PROCEEDS THEREOF.
NO INDEMNITEE SHALL BE LIABLE FOR
ANY DAMAGES ARISING FROM THE 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.
(E)
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE PROMPTLY AFTER
WRITTEN DEMAND THEREFOR.
A CERTIFICATE OF THE ADMINISTRATIVE AGENT OR A LENDER
SETTING FORTH THE AMOUNT OR AMOUNTS OWING TO THE ADMINISTRATIVE AGENT, LENDER OR
A SUB-AGENT OR RELATED PARTY, AS THE CASE MAY BE, AS SPECIFIED IN THIS SECTION,
INCLUDING REASONABLE DETAIL OF THE BASIS OF CALCULATION OF THE AMOUNT OR
AMOUNTS, AND DELIVERED TO THE BORROWER SHALL BE CONCLUSIVE ABSENT MANIFEST
ERROR.
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 THE ISSUING BANK THAT ISSUES ANY
LETTER OF CREDIT), EXCEPT THAT (I) NEITHER THE BORROWER NOR ANY OTHER LOAN PARTY
MAY ASSIGN OR OTHERWISE TRANSFER ANY OF ITS RIGHTS OR OBLIGATIONS HEREUNDER
WITHOUT THE PRIOR
96
WRITTEN CONSENT OF THE ADMINISTRATIVE AGENT AND EACH LENDER (AND ANY ATTEMPTED
ASSIGNMENT OR TRANSFER BY THE BORROWER OR ANY OTHER LOAN PARTY 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 RESPECTIVE
SUCCESSORS AND ASSIGNS PERMITTED HEREBY (INCLUDING ANY AFFILIATE OF THE 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 BANK 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