THEIR SUBSIDIARIES,
OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO SUCH BORROWER OR ANY SUCH
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, WHETHER BROUGHT BY A THIRD PARTY OR BY ANY OF THE
BORROWERS, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY
73
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 (Y) RESULT FROM A CLAIM BROUGHT BY ANY OF THE
BORROWERS AGAINST AN INDEMNITEE FOR BREACH IN BAD FAITH OF SUCH INDEMNITEE'S
OBLIGATIONS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, IF ANY BORROWER HAS
OBTAINED A FINAL AND NONAPPEALABLE JUDGMENT IN ITS FAVOR ON SUCH CLAIM AS
DETERMINED BY A COURT OF COMPETENT JURISDICTION.
UNLESS AN EVENT OF DEFAULT
SHALL HAVE OCCURRED AND BE CONTINUING, THE BORROWERS SHALL BE ENTITLED TO ASSUME
THE DEFENSE OF ANY ACTION FOR WHICH INDEMNIFICATION IS SOUGHT HEREUNDER WITH
COUNSEL OF ITS CHOICE AT ITS EXPENSE (IN WHICH CASE THE BORROWERS SHALL NOT
THEREAFTER BE RESPONSIBLE FOR THE FEES AND EXPENSES OF ANY SEPARATE COUNSEL
RETAINED BY AN INDEMNITEE EXCEPT AS SET FORTH BELOW); PROVIDED, HOWEVER, THAT
SUCH COUNSEL SHALL BE REASONABLY SATISFACTORY TO EACH SUCH INDEMNITEE.
NOTWITHSTANDING THE BORROWERS' ELECTION TO ASSUME THE DEFENSE OF SUCH ACTION,
EACH INDEMNITEE SHALL HAVE THE RIGHT TO EMPLOY SEPARATE COUNSEL AND TO
PARTICIPATE IN THE DEFENSE OF SUCH ACTION, AND THE BORROWERS SHALL BEAR THE
REASONABLE FEES, COSTS AND EXPENSES OF SUCH SEPARATE COUNSEL IF (I) THE USE OF
COUNSEL CHOSEN BY THE BORROWERS TO REPRESENT SUCH INDEMNITEE WOULD PRESENT SUCH
COUNSEL WITH A CONFLICT OF INTEREST; (II) THE ACTUAL OR POTENTIAL DEFENDANTS IN,
OR TARGETS OF, ANY SUCH ACTION INCLUDE THE BORROWERS AND SUCH INDEMNITEE AND
SUCH INDEMNITEE SHALL HAVE REASONABLY CONCLUDED THAT THERE MAY BE LEGAL DEFENSES
AVAILABLE TO IT THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE AVAILABLE TO THE
BORROWERS; (III) THE BORROWERS SHALL NOT HAVE EMPLOYED COUNSEL REASONABLY
SATISFACTORY TO SUCH INDEMNITEE TO REPRESENT IT WITHIN A REASONABLE TIME AFTER
NOTICE OF THE INSTITUTION OF SUCH ACTION; OR (IV) THE BORROWERS SHALL AUTHORIZE
SUCH INDEMNITEE TO EMPLOY SEPARATE COUNSEL AT THE BORROWERS' EXPENSE.
THE
BORROWERS WILL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY AMOUNT PAID BY AN
INDEMNITEE TO SETTLE ANY CLAIMS OR ACTIONS IF THE SETTLEMENT IS ENTERED INTO
WITHOUT THE BORROWERS' CONSENT, WHICH CONSENT MAY NOT BE UNREASONABLY WITHHELD
OR DELAYED.
(C)
REIMBURSEMENT BY LENDERS.
TO THE EXTENT THAT ANY BORROWER FOR ANY
REASON FAILS TO INDEFEASIBLY PAY ANY AMOUNT REQUIRED UNDER SUBSECTION (A)