OR THE USE OF THE PROCEEDS THEREOF,
(III) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR
FROM ANY PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY OF THE SUBSIDIARIES,
OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE BORROWER OR ANY OF THE
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, BE AVAILABLE TO
THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES
(A) ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND
NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF (OR A BREACH IN BAD FAITH BY SUCH INDEMNITEE OF ITS EXPRESS
OBLIGATIONS UNDER ANY LOAN DOCUMENT) SUCH INDEMNITEE, (B) ARISE OUT OF A CLAIM
BROUGHT BY THE BORROWER AGAINST AN INDEMNITEE FOR A BREACH WHICH IS FINALLY
DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT TO HAVE CONSTITUTED A BAD FAITH
BREACH OF SUCH INDEMNITEE'S OBLIGATIONS UNDER THIS AGREEMENT OR (C) RELATE TO
TAXES, EXCEPT AS PROVIDED IN SECTION 3.07.
(C)
TO THE EXTENT THAT THE 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
55
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, 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, EACH PARTY HERETO
AGREES THAT IT WILL NOT ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST ANY
INDEMNITEE OR THE BORROWER, AS THE CASE MAY BE, 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, INSTRUMENT OR OTHER DOCUMENT CONTEMPLATED HEREBY OR
THEREBY, THE TRANSACTIONS OR ANY REVOLVING LOAN OR THE USE OF THE PROCEEDS
THEREOF.
(E)
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE PROMPTLY, BUT
IN ANY EVENT NO LATER THAN 30 DAYS, AFTER WRITTEN DEMAND THEREFOR, ACCOMPANIED
BY PROPER SUPPORTING DOCUMENTATION, AND WITHOUT PREJUDICE TO THE BORROWER'S
RIGHT TO CONTEST THE AMOUNT OR THE VALIDITY OF ANY CLAIM FOR PAYMENT.
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 THE BORROWER MAY NOT ASSIGN OR OTHERWISE TRANSFER
ANY OF ITS RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF
EACH CREDIT PARTY (AND ANY ATTEMPTED ASSIGNMENT