INDEMNITEE BY
ANY THIRD PARTY OR BY THE BORROWERS OR ANY OTHER LOAN PARTY ARISING OUT OF, IN
CONNECTION WITH, OR AS A RESULT OF (I) THE EXECUTION OR DELIVERY OF THIS
AGREEMENT, ANY
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OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR
THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS
HEREUNDER OR THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, OR, IN THE CASE OF THE AGENTS (AND ANY SUB-AGENTS THEREOF)
AND THEIR RELATED PARTIES ONLY, THE ADMINISTRATION OF THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS, (II) ANY LOAN OR LETTER OF CREDIT OR THE USE OR PROPOSED
USE OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY THE L/C ISSUER TO HONOR
A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN
CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER
OF CREDIT), (III) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS
MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY ANY LOAN PARTY OR ANY OF
ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO ANY LOAN
PARTY OR ANY OF ITS SUBSIDIARIES, (IV) ANY CLAIMS OF, OR AMOUNTS PAID BY ANY
CREDIT PARTY TO, A BLOCKED ACCOUNT BANK OR OTHER PERSON WHICH HAS ENTERED INTO A
CONTROL AGREEMENT WITH ANY CREDIT PARTY HEREUNDER, OR (V) ANY ACTUAL OR
PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF
THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER
BROUGHT BY A THIRD PARTY OR BY ANY BORROWER OR ANY OTHER LOAN PARTY OR ANY OF
THE LOAN PARTIES' DIRECTORS, SHAREHOLDERS OR CREDITORS, 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, 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 OR ANY OF ITS RELATED
PARTIES OR (Y) RESULT FROM A CLAIM BROUGHT BY A BORROWER OR ANY OTHER LOAN PARTY
AGAINST AN INDEMNITEE FOR BREACH IN BAD FAITH OF SUCH INDEMNITEE'S OBLIGATIONS
HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, IF THE BORROWERS OR SUCH LOAN PARTY
HAS OBTAINED A FINAL AND NONAPPEALABLE JUDGMENT IN ITS FAVOR ON SUCH CLAIM AS
DETERMINED BY A COURT OF COMPETENT JURISDICTION.
(C)
REIMBURSEMENT BY LENDERS.
TO THE EXTENT
THAT THE LOAN PARTIES FOR ANY REASON FAIL TO INDEFEASIBLY PAY ANY AMOUNT
REQUIRED UNDER SUBSECTION (A) OR (B) OF THIS SECTION TO BE PAID BY IT, EACH
LENDER SEVERALLY AGREES TO PAY TO THE AGENTS (OR ANY SUCH SUB-AGENT), THE L/C
ISSUER OR SUCH RELATED PARTY, AS THE CASE MAY BE, SUCH LENDER'S APPLICABLE
PERCENTAGE (DETERMINED AS