LIABILITY
RELATED IN ANY WAY TO THE BORROWER OR ANY SUBSIDIARY 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, WHETHER
BROUGHT BY A THIRD PARTY OR BY THE BORROWER OR ANY SUBSIDIARY OR ANY OF THEIR
AFFILIATES 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 (I) ARE FOUND
BY A FINAL, NONAPPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION TO HAVE
RESULTED FROM THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SUCH INDEMNITEE OR
(II) RESULT FROM ANY LITIGATION OR PROCEEDING
BROUGHT BY AN INDEMNITEE SOLELY
AGAINST ONE OR MORE OTHER INDEMNITEES AND NOT INVOLVING THE BREACH OF A
REPRESENTATION AND WARRANTY, THE NON-COMPLIANCE WITH AN OBLIGATION OR A WRONGFUL
OR NEGLIGENT ACT OR OMISSION, IN EACH CASE BY THE BORROWER OR ANY OF ITS
AFFILIATES.
(C)
TO THE EXTENT THAT THE BORROWER FAILS TO PAY ANY AMOUNT REQUIRED TO BE PAID
BY IT TO THE ADMINISTRATIVE AGENT OR THE ISSUING BANK UNDER PARAGRAPH (A) OR (B)
OF THIS SECTION, EACH LENDER SEVERALLY AGREES TO PAY TO THE ADMINISTRATIVE AGENT
OR THE ISSUING BANK, 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 THE
ISSUING BANK IN ITS CAPACITY AS SUCH.
FOR PURPOSES HEREOF, A LENDER'S "PRO RATA
SHARE" SHALL BE DETERMINED BASED UPON ITS SHARE OF THE AGGREGATE REVOLVING
EXPOSURES, OUTSTANDING TERM LOANS AND UNUSED COMMITMENTS AT THE TIME.
THE
OBLIGATIONS OF THE LENDERS UNDER THIS PARAGRAPH (C) ARE SUBJECT TO THE LAST
SENTENCE OF SECTION 2.02(A) (WHICH SHALL APPLY MUTATIS MUTANDIS TO THE LENDERS'
OBLIGATIONS UNDER THIS PARAGRAPH (C)).
(D)
TO THE EXTENT 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 DIRECT
OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, ANY
LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED THEREBY, THE
TRANSACTIONS CONTEMPLATED THEREBY, ANY LOAN OR LETTER OF CREDIT OR THE USE OF
THE PROCEEDS THEREOF.
(E)
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE NOT LATER THAN THREE
BUSINESS DAYS AFTER WRITTEN DEMAND 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
RESPECTIVE SUCCESSORS AND ASSIGNS PERMITTED HEREBY (INCLUDING ANY AFFILIATE OF
THE ISSUING BANK THAT ISSUES ANY LETTER OF CREDIT), EXCEPT THAT (I) THE BORROWER
MAY NOT ASSIGN OR OTHERWISE TRANSFER ANY OF ITS