WAY TO THE PARENT 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 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 OR ANY AFFILIATE OF SUCH INDEMNITEE (OR OF ANY
OFFICER, DIRECTOR, EMPLOYEE, ADVISOR OR AGENT OF SUCH INDEMNITEE OR ANY SUCH
INDEMNITEE'S AFFILIATES) OR TO THE EXTENT SUCH DAMAGES CONSTITUTE SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES), AND
PROVIDED, FURTHER, THAT, FOR PURPOSES OF THE FOREGOING PROVISO, JPMORGAN CHASE
BANK AND ITS AFFILIATES (OTHER THAN THE SPONSOR AND ANY PERSONS CONTROLLED BY
THE SPONSOR) SHALL NOT BE DEEMED TO BE AFFILIATES OF THE SPONSOR OR ANY PERSON
CONTROLLED BY THE SPONSOR.
(C)
TO THE EXTENT THAT THE BORROWERS FAIL TO PAY ANY AMOUNT REQUIRED TO BE PAID
BY IT TO THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE CO-COLLATERAL
AGENT, THE ISSUING BANK, THE SYNDICATION AGENT, THE DOCUMENTATION AGENT, EITHER
ARRANGER OR THE SWINGLINE LENDER UNDER PARAGRAPH (A) OR (B) OF THIS SECTION,
EACH LENDER SEVERALLY AGREES TO PAY TO THE ADMINISTRATIVE AGENT, THE COLLATERAL
AGENT, THE CO-COLLATERAL AGENT, THE ISSUING BANK, THE SYNDICATION AGENT, THE
DOCUMENTATION AGENT, THE APPLICABLE ARRANGER OR THE SWINGLINE LENDER, 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,
146
THE COLLATERAL AGENT, THE CO-COLLATERAL AGENT, 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 EXPOSURES AND UNUSED COMMITMENTS AT THE TIME.
(D)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWERS SHALL NOT ASSERT,
AND EACH OF THEM 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 OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY,
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.
EACH BORROWER SHALL BE JOINTLY LIABLE FOR ALL EXPENSE
REIMBURSEMENT AND INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 10.03, AND ALL
OTHER OBLIGATIONS OF THE BORROWERS UNDER THIS AGREEMENT.
EACH OF THE BORROWERS
AGREES THAT THE PROVISIONS OF