OTHER THEORY AND WHETHER INITIATED
AGAINST OR BY THE BORROWER OR ANY OTHER PARTY TO THE COMMITMENT LETTER, THE FEE
LETTERS, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, ANY AFFILIATE OF ANY OF THE
FOREGOING OR ANY THIRD PARTY (AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A
PARTY THERETO); PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY 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 NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE, BAD FAITH
OR WILFUL MISCONDUCT OF SUCH INDEMNITEE OR FROM A MATERIAL BREACH BY SUCH
INDEMNITEE OF ITS AGREEMENTS UNDER THE LOAN DOCUMENTS.
THIS PARAGRAPH SHALL NOT
REQUIRE INDEMNIFICATION FOR TAXES OTHER THAN ANY TAXES THAT REPRESENT LOSSES OR
DAMAGES ARISING FROM NON-TAX CLAIMS.
(C)
TO THE EXTENT THE BORROWER FAILS TO PAY ANY AMOUNT REQUIRED TO BE PAID BY
IT UNDER PARAGRAPH (A) OR (B) OF THIS SECTION TO THE ADMINISTRATIVE AGENT (OR
ANY SUB-AGENT THEREOF), ANY ISSUING BANK, THE SWINGLINE LENDER OR ANY RELATED
PARTY OF ANY OF THE FOREGOING, EACH LENDER SEVERALLY AGREES TO PAY TO THE
ADMINISTRATIVE AGENT (OR ANY SUCH SUB-AGENT), ANY ISSUING BANK, THE SWINGLINE
LENDER OR SUCH RELATED PARTY, AS THE CASE MAY BE, 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 ADMINISTRATIVE AGENT (OR SUCH
SUB-AGENT), ANY ISSUING BANK OR THE SWINGLINE LENDER IN ITS CAPACITY AS SUCH, OR
AGAINST ANY RELATED PARTY OF ANY OF THE FOREGOING ACTING FOR THE ADMINISTRATIVE
AGENT (OR ANY SUCH SUB-AGENT), ANY ISSUING BANK OR THE SWINGLINE LENDER IN SUCH
CAPACITY.
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
COMMITMENTS AT THE TIME (OR MOST RECENTLY OUTSTANDING AND IN EFFECT).
(D)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER SHALL NOT ASSERT OR
PERMIT ANY OF ITS AFFILIATES OR RELATED PARTIES TO 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
TELECOMMUNICATIONS, ELECTRONIC OR OTHER
88
INFORMATION TRANSMISSION SYSTEMS (INCLUDING THE INTERNET), 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, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT
CONTEMPLATED HEREBY OR THEREBY, 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 PROMPTLY AFTER WRITTEN
DEMAND THEREFOR.
SECTION 9.04.
SUCCESSORS AND ASSIGNS.
(A)
THE PROVISIONS OF THIS AGREEMENT
SHALL BE BINDING UPON