LIMITATION, CLAIMS ARISING OR IMPOSED UNDER THE DOCTRINE OF STRICT
LIABILITY, OR FOR OR ON ACCOUNT OF INJURY TO OR THE DEATH OF ANY PERSON
(INCLUDING ANY INDEMNITEE), OR PROPERTY DAMAGE); PROVIDED THAT NO INDEMNITEE
SHALL BE INDEMNIFIED PURSUANT TO THIS SECTION 9.1(A) FOR ANY EXPENSE TO THE
EXTENT IT ARISES OR RESULTS FROM THE BAD FAITH, GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH INDEMNITEE AS DETERMINED BY A COURT OF COMPETENT
JURISDICTION.
EACH ASSIGNOR AGREES THAT UPON WRITTEN NOTICE BY ANY INDEMNITEE
OF THE ASSERTION OF SUCH A LIABILITY, OBLIGATION, DAMAGE, INJURY, PENALTY,
CLAIM, DEMAND, ACTION, SUIT OR JUDGMENT, THE RELEVANT ASSIGNOR SHALL ASSUME FULL
RESPONSIBILITY FOR THE DEFENSE THEREOF.
EACH INDEMNITEE AGREES TO USE ITS BEST
EFFORTS TO PROMPTLY NOTIFY THE RELEVANT ASSIGNOR OF ANY SUCH ASSERTION OF WHICH
SUCH INDEMNITEE HAS KNOWLEDGE.
24
(B)
IN ANY SUIT, PROCEEDING OR ACTION BROUGHT BY THE COLLATERAL AGENT
UNDER OR WITH RESPECT TO THE COLLATERAL FOR ANY SUM OWING THEREUNDER, OR TO
ENFORCE ANY PROVISIONS HEREOF OR OF ANY LOAN DOCUMENT, EACH ASSIGNOR WILL SAVE,
INDEMNIFY AND KEEP THE COLLATERAL AGENT AND EACH SECURED PARTY HARMLESS FROM AND
AGAINST ALL EXPENSE, LOSS OR DAMAGE SUFFERED BY REASON OF ANY DEFENSE, SET OFF,
COUNTERCLAIM, RECOUPMENT OR REDUCTION OF LIABILITY WHATSOEVER OF THE OBLIGEE
THEREUNDER, ARISING OUT OF ANY OTHER AGREEMENT, INDEBTEDNESS OR LIABILITY AT ANY
TIME OWING TO OR IN FAVOR OF SUCH OBLIGEE OR ITS SUCCESSORS FROM SUCH ASSIGNOR
EXCEPT TO THE EXTENT THAT ANY SUCH EXPENSE, LOSS OR DAMAGE ARISES OUT OF SUCH
OBLIGEE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND ALL SUCH OBLIGATIONS OF
SUCH ASSIGNOR SHALL BE AND REMAIN ENFORCEABLE AGAINST SUCH ASSIGNOR AND SHALL
NOT BE ENFORCEABLE AGAINST THE COLLATERAL AGENT OR ANY SECURED PARTY.
(C)
IF THE COLLATERAL AGENT HAS BEEN REQUESTED OR INSTRUCTED PURSUANT
TO THIS AGREEMENT OR ANY LOAN DOCUMENT TO TAKE, OR TO REFRAIN FROM TAKING, ANY
ACTION PURSUANT TO THIS AGREEMENT OR ANY LOAN DOCUMENT, (I) EACH ASSIGNOR AGREES
TO, AND (II) THE SECURED PARTIES RATABLY IN ACCORDANCE WITH THE AMOUNT OF THE
SECURED OBLIGATIONS OWING TO THEM AND WITH RESPECT TO WHICH THEY HAVE A SECURITY
INTEREST, IF THE INSTRUCTING GROUP HAS MADE SUCH REQUEST OR GIVEN SUCH
INSTRUCTION, AGREE TO, AND HEREBY DO INDEMNIFY AND HOLD HARMLESS THE COLLATERAL
AGENT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FROM AND AGAINST ANY
AND ALL LIABILITY, LOSS, COSTS, DAMAGES, ATTORNEYS' FEES, FINES, CLAIMS,
JUDGMENTS, AMOUNTS PAID IN SETTLEMENT IN CONNECTION WITH ANY THREATENED, PENDING
OR COMPLETED CLAIM, ACTION, SUIT, PROCEEDING OR INVESTIGATION, WHETHER CRIMINAL,
CIVIL OR ADMINISTRATIVE, AND EXPENSES OF WHATEVER KIND OR NATURE WHICH THE
COLLATERAL AGENT MAY SUSTAIN OR INCUR BY REASON OF OR IN CONNECTION WITH THE
COLLATERAL AGENT'S ACTING OR REFRAINING TO ACT IN ACCORDANCE WITH SUCH REQUEST
OR INSTRUCTION OTHER THAN SUSTAINED OR INCURRED BY REASON OF THE COLLATERAL
AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED THAT THE OBLIGATIONS OF
THE SECURED PARTIES UNDER THIS SECTION 9.1(C) SHALL BECOME ENFORCEABLE AGAINST
THEM IF AND ONLY