(I)
THE EXECUTION OR DELIVERY OF ANY LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT
CONTEMPLATED THEREBY, THE PERFORMANCE BY THE PARTIES TO THE LOAN DOCUMENTS OF
THEIR RESPECTIVE OBLIGATIONS THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS
OR ANY OTHER TRANSACTIONS CONTEMPLATED THEREBY, (II) ANY LOAN OR THE USE OF THE
PROCEEDS THEREOF, OR (III) 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, 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 OR WILLFUL
MISCONDUCT OF SUCH INDEMNITEE.
(C)
TO THE EXTENT THAT THE COMPANY 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 AN AMOUNT EQUAL TO THE PRODUCT OF SUCH UNPAID AMOUNT
MULTIPLIED BY A FRACTION, THE NUMERATOR OF WHICH IS SUCH LENDER'S TOTAL CREDIT
EXPOSURE AND THE DENOMINATOR OF WHICH IS THE AGGREGATE TOTAL CREDIT EXPOSURE OF
ALL LENDERS (IN EACH CASE DETERMINED AS OF THE TIME THAT THE APPLICABLE
UNREIMBURSED EXPENSE OR INDEMNITY PAYMENT IS SOUGHT OR, IN THE EVENT THAT NO
LENDER SHALL HAVE ANY TOTAL CREDIT EXPOSURE AT SUCH TIME, AS OF THE LAST TIME AT
WHICH ANY LENDER HAD A TOTAL CREDIT EXPOSURE), PROVIDED THAT THE UNREIMBURSED
EXPENSE OR INDEMNIFIED LOSS, CLAIM, DAMAGE, LIABILITY OR RELATED EXPENSE, AS
APPLICABLE, 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 HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE,
ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES (AS OPPOSED TO DIRECT AND ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION
WITH, OR AS A RESULT OF, ANY LOAN DOCUMENT OR ANY AGREEMENT, INSTRUMENT OR OTHER
DOCUMENT CONTEMPLATED THEREBY, THE TRANSACTIONS OR ANY LOAN OR THE USE OF THE
PROCEEDS THEREOF.
(E)
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE
PAYABLE PROMPTLY BUT IN NO EVENT LATER THAN TEN DAYS AFTER WRITTEN DEMAND
THEREFOR.
SECTION 10.4
SUCCESSORS AND ASSIGNS.
(A)
SUCCESSORS AND ASSIGNS GENERALLY. THE
PROVISIONS OF THIS CREDIT AGREEMENT SHALL BE BINDING UPON AND INURE TO THE
BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS
PERMITTED HEREBY, EXCEPT THAT NO BORROWER MAY ASSIGN OR OTHERWISE TRANSFER ANY
OF ITS RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE
ADMINISTRATIVE AGENT AND EACH LENDER AND NO LENDER MAY ASSIGN OR OTHERWISE
TRANSFER ANY OF ITS RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT (I) TO AN ELIGIBLE
INSTITUTION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (B) OF THIS SECTION,
(II) BY WAY OF PARTICIPATION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH