Sunoco 2013 Annual Report Download - page 245

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foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by any Loan Party or any Subsidiary, and regardless of whether any Indemnitee is a party thereto,
in all cases, whether or not caused by or arising, in whole or in part, out of the comparative,
contributory or sole negligence of the Indemnitee; provided that such indemnity shall not, as to any
Indemnitee (other than, with respect to clause (z), the Administrative Agent and each Arranger in
its capacity as such), be available to the extent that such losses, claims, damages, liabilities or related
expenses (x) 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,
(y) result from a claim brought by any Loan Party or any Subsidiary against an Indemnitee for
breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document,
if such Loan Party or such Subsidiary has obtained a final and nonappealable judgment in its favor
on such claim as determined by a court of competent jurisdiction or (z) result from any dispute
among Indemnitees other than as a result of any act or omission by a Loan Party or its Affiliates.
This Section 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent
losses, claims or damages arising from any non-Tax claim.
(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to
the Administrative Agent (or any sub-agent thereof), a LC Issuer, the Swingline Lender, or any
Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent), such LC Issuer, the Swingline Lender, or such Related Party, as the
case may be, 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 the case
may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the
Swingline Lender, or a LC Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent), the Swingline Lender, or
LC Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c)
are subject to the provisions of Section 2.14(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable
Law, but without limiting the indemnification in Section 10.04(b), none of the Borrower, the
Guarantor, the Administrative Agent, any LC Issuer, the Swingline Lender or any other Lender shall
assert, and each of the foregoing hereby waives, any claim against any other party hereto, 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 Letter of Credit or the use of the proceeds thereof. No Indemnitee
referred to in subsection (b) above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed to such unintended recipients by such
Indemnitee 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, except to the extent that such damages are determined by a court of competent