INDEMNITY SHALL
NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS,
DAMAGES, LIABILITIES OR RELATED EXPENSES HAVE RESULTED FROM THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE.
IT IS UNDERSTOOD AND AGREED THAT, TO
THE EXTENT NOT PRECLUDED BY A CONFLICT OF INTEREST, EACH INDEMNITEE SHALL
ENDEAVOR TO WORK COOPERATIVELY
19
WITH THE BORROWER WITH A VIEW TOWARD MINIMIZING THE LEGAL AND OTHER EXPENSES
ASSOCIATED WITH ANY DEFENSE AND ANY POTENTIAL SETTLEMENT OR JUDGMENT.
TO THE
EXTENT REASONABLY PRACTICABLE AND NOT DISADVANTAGEOUS TO ANY INDEMNITEE, IT IS
ANTICIPATED THAT A SINGLE COUNSEL SELECTED BY THE BORROWER MAY BE USED.
SETTLEMENT OF ANY CLAIM OR LITIGATION INVOLVING ANY MATERIAL INDEMNIFIED AMOUNT
WILL REQUIRE THE APPROVALS OF THE BORROWER (NOT TO BE UNREASONABLY WITHHELD) AND
THE RELEVANT INDEMNITEE (NOT TO BE UNREASONABLY WITHHELD OR DELAYED).
SECTION 7.04.
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 LENDER (AND ANY ATTEMPTED ASSIGNMENT
OR TRANSFER BY THE 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, THE LEAD ARRANGERS AND, TO THE EXTENT EXPRESSLY
CONTEMPLATED HEREBY, THE RELATED PARTIES OF EACH OF THE LEAD ARRANGERS, THE
ADMINISTRATIVE AGENT 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 OF ITS AFFILIATES AND, ON AND AFTER
THE DATE THAT IS EIGHT WEEKS AFTER THE EFFECTIVE DATE, TO ANY PERSON, AS
ASSIGNEES, ALL OR A PORTION OF ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT
(INCLUDING ALL OR A PORTION OF THE LOANS AT THE TIME OWING TO IT); PROVIDED THAT
(I) EACH OF THE BORROWER AND THE ADMINISTRATIVE AGENT MUST GIVE ITS PRIOR
WRITTEN CONSENT TO SUCH ASSIGNMENT (WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD) UNLESS SUCH ASSIGNMENT IS TO AN AFFILIATE OF SUCH LENDER, (II) EACH
PARTIAL ASSIGNMENT OF A LENDER'S RIGHTS AND OBLIGATIONS SHALL BE MADE AS AN
ASSIGNMENT OF A PROPORTIONATE PART OF ALL THE ASSIGNING LENDER'S RIGHTS AND
OBLIGATIONS, (III) THE PARTIES TO EACH ASSIGNMENT SHALL EXECUTE AND DELIVER TO
THE ADMINISTRATIVE AGENT AN ASSIGNMENT AND ACCEPTANCE, TOGETHER WITH A
PROCESSING AND RECORDATION FEE OF $3,500 PAYABLE BY THE ASSIGNOR OR THE
ASSIGNEE, (IV) THE ASSIGNEE, IF IT SHALL NOT BE A LENDER, SHALL DELIVER TO THE
ADMINISTRATIVE AGENT AN ADMINISTRATIVE QUESTIONNAIRE AND (V) THE ASSIGNEE, IF
APPLICABLE, SHALL, PRIOR TO THE FIRST DATE ON WHICH INTEREST OR FEES ARE PAYABLE
HEREUNDER FOR ITS ACCOUNT, DELIVER TO THE BORROWER AND THE ADMINISTRATIVE AGENT
THE DOCUMENTATION DESCRIBED IN SECTION 2.13(E); PROVIDED, FURTHER THAT ANY
CONSENT OF THE