A SINGLE
COUNSEL FOR THE OTHER CREDIT PARTIES, IN CONNECTION WITH THE ENFORCEMENT OR
PROTECTION OF ITS RIGHTS IN CONNECTION WITH THE LOAN DOCUMENTS, INCLUDING ITS
RIGHTS UNDER THIS SECTION, OR IN CONNECTION WITH AND DURING ANY WORKOUT,
RESTRUCTURING OR NEGOTIATIONS IN RESPECT OF THE REVOLVING LOANS AND THE LETTERS
OF CREDIT.
54
(B)
THE BORROWER SHALL INDEMNIFY EACH CREDIT
PARTY AND EACH RELATED PARTY THEREOF (EACH SUCH PERSON BEING CALLED AN
"INDEMNITEE") AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL
LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE
REASONABLE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE,
INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN CONNECTION
WITH, OR AS A RESULT OF (I) THE EXECUTION OR DELIVERY OF ANY LOAN DOCUMENT OR
ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY
THE PARTIES TO THE LOAN DOCUMENTS OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER AND
THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS OR ANY OTHER TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, (II) ANY REVOLVING LOAN OR THE USE OF THE
PROCEEDS THEREOF, (III) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS
MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY OF
THE SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE
BORROWER OR ANY OF THE SUBSIDIARIES, OR (IV) ANY ACTUAL OR PROSPECTIVE CLAIM,
LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING,
WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND REGARDLESS OF WHETHER
ANY INDEMNITEE IS A PARTY THERETO, PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO
ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES,
LIABILITIES OR RELATED EXPENSES (A) ARE DETERMINED BY A COURT OF COMPETENT
JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF (OR A BREACH IN BAD FAITH BY SUCH INDEMNITEE
OF ITS EXPRESS OBLIGATIONS UNDER ANY LOAN DOCUMENT) SUCH INDEMNITEE, (B) ARISE
OUT OF A CLAIM BROUGHT BY THE BORROWER AGAINST AN INDEMNITEE FOR A BREACH WHICH
IS FINALLY DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT TO HAVE CONSTITUTED
A BAD FAITH BREACH OF SUCH INDEMNITEE'S OBLIGATIONS UNDER THIS AGREEMENT OR
(C) RELATE TO TAXES, EXCEPT AS PROVIDED IN SECTION 3.07.
(C)
TO THE EXTENT THAT THE BORROWER FAILS TO
PAY ANY AMOUNT REQUIRED TO BE PAID BY IT TO THE ADMINISTRATIVE AGENT UNDER
PARAGRAPH (A) OR (B) OF THIS SECTION, EACH LENDER SEVERALLY AGREES TO PAY TO THE
ADMINISTRATIVE AGENT 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 APPLICABLE, WAS INCURRED BY OR
ASSERTED AGAINST THE ADMINISTRATIVE AGENT IN ITS CAPACITY AS SUCH.
(D)
TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH PARTY HERETO AGREES THAT IT WILL NOT ASSERT, AND HEREBY WAIVES, ANY CLAIM
AGAINST ANY INDEMNITEE OR THE BORROWER,