PERMITTED BY APPLICABLE LAW, THE BORROWER SHALL NOT
ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE, ON ANY THEORY OF
LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED
TO ACTUAL OR DIRECT DAMAGES) ARISING OUT
73
OF, IN CONNECTION WITH OR AS A RESULT OF, THIS AGREEMENT OR ANY AGREEMENT OR
INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS CONTEMPLATED THEREIN, ANY LOAN
OR ANY LETTER OF CREDIT OR THE USE OF PROCEEDS THEREOF.
(F)
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE PROMPTLY
AFTER WRITTEN DEMAND THEREFOR.
SECTION 10.4.
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, EXCEPT THAT 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).
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 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)
ANY LENDER MAY ASSIGN TO ONE OR MORE ELIGIBLE ASSIGNEES ALL OR A
PORTION OF ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING ALL OR A
PORTION OF ITS COMMITMENT AND THE LOANS AT THE TIME OWING TO IT); PROVIDED THAT
(I) EXCEPT IN THE CASE OF AN ASSIGNMENT OF THE ENTIRE REMAINING AMOUNT OF THE
ASSIGNING LENDER'S COMMITMENT AND THE LOANS AT THE TIME OWING TO IT OR IN THE
CASE OF AN ASSIGNMENT TO A LENDER, AN AFFILIATE OF A LENDER OR AN APPROVED FUND
WITH RESPECT TO A LENDER, THE AGGREGATE AMOUNT OF THE COMMITMENT (WHICH FOR THIS
PURPOSE INCLUDES LOANS OUTSTANDING THEREUNDER) OF THE ASSIGNING LENDER SUBJECT
TO EACH SUCH ASSIGNMENT (DETERMINED AS OF THE DATE THE ASSIGNMENT AND ACCEPTANCE
WITH RESPECT TO SUCH ASSIGNMENT IS DELIVERED TO THE ADMINISTRATIVE AGENT) SHALL
NOT BE LESS THAN $1,000,000, IN THE CASE OF ANY ASSIGNMENT OF A REVOLVING LOAN
OR REIMBURSEMENT OBLIGATION OF OUTSTANDING LETTERS OF CREDIT, UNLESS EACH OF THE
ADMINISTRATIVE AGENT AND, SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING, THE BORROWER OTHERWISE CONSENTS (EACH SUCH CONSENT NOT TO BE
UNREASONABLY WITHHELD OR DELAYED), (II) EACH PARTIAL ASSIGNMENT SHALL BE MADE AS
AN ASSIGNMENT OF A PROPORTIONATE PART OF ALL THE ASSIGNING LENDER'S RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT WITH RESPECT TO THE LOAN OR THE COMMITMENT
ASSIGNED , EXCEPT THAT THIS CLAUSE (II) SHALL NOT PROHIBIT ANY LENDER FROM
ASSIGNING ALL OR A PORTION OF ITS RIGHTS AND OBLIGATIONS AMONG SEPARATE
COMMITMENTS ON A NON-PRO RATA BASIS, AND (III) THE PARTIES TO EACH ASSIGNMENT
SHALL EXECUTE AND DELIVER TO THE ADMINISTRATIVE AGENT AN ASSIGNMENT AND