CREDIT OR THE USE OF THE PROCEEDS THEREFROM, (III) ANY
ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY
PROPERTY OWNED OR OPERATED BY THE PARENT BORROWER OR ANY OF ITS SUBSIDIARIES, OR
ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE PARENT BORROWER OR ANY OF
ITS SUBSIDIARIES, OR (IV) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION,
INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A
PARTY THERETO; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE OR
ANY RELATED PARTY OF SUCH INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH
LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED BY A
COURT OF COMPETENT JURISDICTION BY FINAL AND NON-APPEALABLE JUDGMENT TO HAVE
RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR
ANY RELATED PARTY OF SUCH INDEMNITEE.
NOTWITHSTANDING THE FOREGOING, FOR THE
SAKE OF CLARITY, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE OBLIGATIONS
OF THE PARENT BORROWER UNDER THIS SECTION 10.03(B) SHALL NOT INCLUDE THE PAYMENT
OF PRINCIPAL OR INTEREST ON THE LOANS, ANY UNPAID DRAWING IN RESPECT OF ANY
LETTER OF CREDIT, OR ANY AMOUNTS PAYABLE PURSUANT TO SECTION 2.11, 2.12, 2.14,
2.15, 2.16 OR 10.03(A) OF THIS AGREEMENT.
(C)
TO THE EXTENT THAT ANY BORROWER FAILS TO PAY ANY AMOUNT REQUIRED
TO BE PAID BY IT TO THE ADMINISTRATIVE AGENT, UNDER PARAGRAPH (A) OR (B) OF THIS
SECTION, EACH LENDER SEVERALLY AGREES TO PAY TO THE ADMINISTRATIVE AGENT 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,
96
DAMAGE, LIABILITY OR RELATED EXPENSE, AS THE CASE MAY BE, WAS INCURRED BY OR
ASSERTED AGAINST THE ADMINISTRATIVE AGENT, IN ITS CAPACITY AS SUCH.
(D)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO BORROWER SHALL
ASSERT, AND EACH BORROWER HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE, 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, ANY LOAN OR THE USE OF THE PROCEEDS THEREOF.
(E)
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE PROMPTLY AFTER
WRITTEN DEMAND THEREFOR.
SECTION 10.04.
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 EXCEPT THAT (I) NO 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 SUCH 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