(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
AND REGARDLESS OF WHETHER SUCH MATTER IS INITIATED BY A THIRD PARTY OR BY THE
COMPANY OR ANY AFFILIATE THEREOF; 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 WILFUL MISCONDUCT OF SUCH INDEMNITEE.
92
(C)
TO THE EXTENT THAT THE COMPANY FAILS TO PAY ANY AMOUNT REQUIRED TO BE PAID
BY IT TO ANY AGENT, THE ISSUING BANK OR THE SWINGLINE LENDER UNDER PARAGRAPH
(A) OR (B) OF THIS SECTION, EACH LENDER SEVERALLY AGREES TO PAY TO SUCH AGENT,
THE ISSUING BANK 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 SUCH 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 AGGREGATE AMOUNT OF REVOLVING EXPOSURES AND UNUSED COMMITMENTS AT THE TIME
(OR, IF THERE SHALL BE NO REVOLVING EXPOSURES OR UNUSED COMMITMENTS, BASED UPON
ITS SHARE OF THE UNUSED COMMITMENTS MOST RECENTLY IN EFFECT AT THE TIME).
(D)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY 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 THIS
AGREEMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS,
ANY LOAN OR ANY LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREOF.
(E)
ALL AMOUNTS DUE UNDER THIS SECTION SHALL BE PAYABLE NOT LATER THAN 10 DAYS
AFTER WRITTEN DEMAND THEREFOR.
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 (I) NO CREDIT
PARTY MAY ASSIGN OR OTHERWISE TRANSFER ANY OF ITS RIGHTS OR OBLIGATIONS
HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT WITHOUT THE PRIOR WRITTEN CONSENT OF
EACH LENDER (AND ANY ATTEMPTED ASSIGNMENT OR TRANSFER BY A CREDIT PARTY WITHOUT
SUCH CONSENT SHALL BE NULL AND VOID) AND (II) NO LENDER MAY ASSIGN OR OTHERWISE
TRANSFER ITS RIGHTS OR OBLIGATIONS HEREUNDER EXCEPT IN ACCORDANCE WITH THIS
SECTION. NOTHING IN THIS AGREEMENT, EXPRESSED OR IMPLIED, SHALL BE