AGENTS, THE ISSUING BANK OR THE SWINGLINE LENDER
IN ITS CAPACITY AS SUCH.
FOR PURPOSES HEREOF, A LENDER'S "PRO RATA SHARE" SHALL
BE DETERMINED BASED UPON ITS SHARE OF THE SUM OF THE TOTAL REVOLVING EXPOSURE
AND UNUSED COMMITMENTS AT THE TIME.
120
(E)
TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE REQUIREMENTS OF LAW, NO LOAN PARTY SHALL ASSERT, AND EACH LOAN PARTY
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, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED
HEREBY, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR OTHER
CREDIT EXTENSION OR THE USE OF THE PROCEEDS THEREOF.
NO INDEMNITEE REFERRED TO
IN PARAGRAPH (B) ABOVE SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY
UNINTENDED RECIPIENTS OF ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED BY IT
THROUGH TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS
IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 11.04
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 BORROWERS MAY
NOT ASSIGN OR OTHERWISE TRANSFER ANY OF THEIR RIGHTS OR OBLIGATIONS HEREUNDER
WITHOUT THE PRIOR WRITTEN CONSENT OF EACH LENDER (AND ANY ATTEMPTED ASSIGNMENT
OR TRANSFER BY A 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 (INCLUDING ANY AFFILIATE OF THE ISSUING BANK THAT ISSUES ANY
LETTER OF CREDIT) AND, TO THE EXTENT EXPRESSLY CONTEMPLATED HEREBY, THE
AFFILIATES OF EACH OF THE ADMINISTRATIVE AGENT, THE ISSUING BANK 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 BANKS,
INSURANCE COMPANIES, INVESTMENT COMPANIES OR FUNDS OR OTHER INSTITUTIONS (OTHER
THAN BORROWERS, HOLDINGS OR ANY AFFILIATE OR SUBSIDIARY THEREOF) 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 TO A LENDER, AN AFFILIATE OF A LENDER OR
A LENDER AFFILIATE, BORROWERS (EXCEPT (I) AFTER THE OCCURRENCE AND DURING THE
CONTINUATION OF A DEFAULT OR EVENT OF DEFAULT OR (II) PRIOR TO THE COMPLETION OF
THE PRIMARY SYNDICATION (AS DETERMINED BY ARRANGER) OF THE COMMITMENTS AND THE
LOANS BY THE ARRANGER) AND THE ADMINISTRATIVE AGENT (AND, IN THE CASE OF AN
ASSIGNMENT OF ALL OR A PORTION OF A REVOLVING COMMITMENT OR ANY LENDER'S
OBLIGATIONS IN RESPECT OF ITS LC EXPOSURE