OTHERWISE) THIS AGREEMENT, THE LETTERS
OF CREDIT AND ANY NOTE OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY AGAINST SUCH BORROWER, INCLUDING BUT NOT LIMITED TO THE
REASONABLE FEES AND EXPENSES OF COUNSEL TO THE ADMINISTRATIVE AGENT, EACH LENDER
AND THE LC BANK (PROVIDED THAT THE BORROWERS SHALL NOT BE OBLIGATED TO REIMBURSE
FOR MORE THAN ONE LAW FIRM (AND IN ADDITION TO SUCH LAW FIRM, ANY LOCAL COUNSEL
ENGAGED IN EACH RELEVANT JURISDICTION BY SUCH LAW FIRM) AS COUNSEL FOR THE
ADMINISTRATIVE AGENT AND THE LENDERS, EXCEPT TO THE EXTENT THAT MULTIPLE LAW
FIRMS ARE REASONABLY REQUIRED TO AND, IN FACT DO REPRESENT THE ADMINISTRATIVE
AGENT AND THE LENDERS, OR IF AN ACTUAL CONFLICT BETWEEN REPRESENTED PARTIES
SHALL EXIST) AND ALL STAMP TAXES, RECORDING TAXES AND FEES AND FILING TAXES AND
FEES WHICH MAY BE PAYABLE IN RESPECT THEREOF; PROVIDED THAT THE BORROWERS SHALL
NOT BE REQUIRED TO REIMBURSE THE COSTS AND EXPENSES OF ANY LENDER THAT ARISE OUT
OF ANY ASSIGNMENT OR PARTICIPATION BY SUCH LENDER HEREUNDER (OTHER THAN ANY
ASSIGNMENT PURSUANT TO SECTION 2.16).
(B)
EACH BORROWER SHALL FURTHER INDEMNIFY, REIMBURSE AND HOLD HARMLESS THE
LENDERS, THE LC BANK, THE ADMINISTRATIVE AGENT AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS AND CONTROLLING PERSONS (EACH, AN
"INDEMNIFIED PARTY") FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, COSTS
AND LIABILITIES (INCLUDING BUT NOT LIMITED TO THE REASONABLE FEES AND EXPENSES
OF COUNSEL TO EACH SUCH INDEMNIFIED PARTY) WHICH ANY OF THEM MAY INCUR OR WHICH
MAY BE CLAIMED AGAINST ANY OF THEM BY ANY PERSON OR ENTITY OR IN ANY
INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING (WHETHER OR NOT SUCH
INDEMNIFIED PARTY SHALL BE DESIGNATED A PARTY THERETO) AS A RESULT OF, IN
CONNECTION WITH, OR OTHERWISE ARISING FROM THE COMMITMENTS, THE ADVANCES, THE
LETTERS OF CREDIT OR ANY ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE
EXTENSIONS OF CREDIT HEREUNDER RELATING TO THE PERFORMANCE OF SUCH BORROWER
UNDER THIS AGREEMENT; PROVIDED, THAT, NO INDEMNIFIED PARTY SHALL HAVE THE RIGHT
TO BE INDEMNIFIED HEREUNDER FOR SUCH INDEMNIFIED PARTY'S OWN GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
(C)
ANY REQUEST FOR REIMBURSEMENT OF ANY OUT-OF-POCKET EXPENSES SHALL BE
ACCOMPANIED BY REASONABLE DOCUMENTATION IN RESPECT THEREOF, INCLUDING COPIES OF
INVOICES FROM THIRD PARTIES, AND IN THE CASE OF CHARGES FOR COUNSEL, THE INVOICE
SHALL INCLUDE A BREAKDOWN OF THE HOURLY TIME AND A SHORT SUMMARY OF SERVICES
RENDERED BY DATE AND SERVICE PROVIDER, A SUMMARY OF THE CHARGES, HOURLY RATE AND
TOTAL HOURS PROVIDED BY EACH SERVICE PROVIDER AND A BREAKDOWN OF REASONABLE
OUT-OF-POCKET EXPENSES OF COUNSEL.
(D)
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE OBLIGATIONS OF EACH
BORROWER UNDER THIS SECTION 9.4 SHALL BE THE JOINT AND SEVERAL OBLIGATION OF
CINERGY;
PROVIDED THAT THE FOREGOING SHALL NOT BE CONSTRUED AS A GUARANTEE OF
PAYMENT BY CINERGY OF ANY OBLIGATION OF ANOTHER BORROWER HEREUNDER.
47
(E)
EACH BORROWER'S OBLIGATIONS UNDER THIS SECTION (INCLUDING CINERGY'S JOINT
AND SEVERAL OBLIGATION WITH RESPECT TO THE RESPECT TO EACH OTHER BORROWER) SHALL
SURVIVE