to legal fees and
expenses, to one counsel for all such Persons taken as a whole, and, if
reasonably necessary, of one local counsel to all such Persons taken as a whole
in any material jurisdiction) incurred by the Agents, any Issuing Bank, the
Swingline Lender or any Lender in connection with the enforcement or protection
of its rights or remedies in connection with this Agreement and the other Loan
Documents or in connection with the Loans made or Letters of Credit issued
hereunder.
(B)
THE BORROWER AGREES TO INDEMNIFY THE ADMINISTRATIVE AGENT, THE
LENDERS AND THEIR AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, TRUSTEES, ADVISORS, AGENTS AND CONTROLLING PERSONS INVOLVED IN THE
TRANSACTIONS (EACH SUCH PERSON BEING CALLED AN "INDEMNITEE") AGAINST, AND TO
HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL ACTUAL OUT-OF-POCKET COSTS,
OUT-OF-POCKET EXPENSES (INCLUDING REASONABLE FEES, DOCUMENTED OUT-OF-POCKET
DISBURSEMENTS AND OTHER CHARGES OF ONE COUNSEL TO THE INDEMNITEES, TAKEN AS A
WHOLE, AND ONE LOCAL COUNSEL TO THE INDEMNITEES TAKEN AS A WHOLE IN EACH
MATERIAL JURISDICTION; PROVIDED THAT IF (I) ONE OR MORE INDEMNITEES SHALL HAVE
REASONABLY CONCLUDED THAT THERE ARE LEGAL DEFENSES AVAILABLE TO IT THAT ARE
DIFFERENT FROM OR IN ADDITION TO THOSE AVAILABLE TO ONE OR MORE OTHER
INDEMNITEES OR (II) THE REPRESENTATION OF THE INDEMNITEES (OR ANY PORTION
THEREOF) BY THE SAME COUNSEL WOULD BE INAPPROPRIATE DUE TO ACTUAL DIFFERING
INTERESTS BETWEEN THEM, THEN SUCH EXPENSES SHALL INCLUDE THE REASONABLE FEES,
OUT-OF-POCKET DISBURSEMENTS AND OTHER CHARGES OF ONE SEPARATE COUNSEL TO SUCH
INDEMNITEES, TAKEN AS A WHOLE, IN EACH RELEVANT JURISDICTION), AND LIABILITIES
OF SUCH INDEMNITEE ARISING OUT OF OR IN CONNECTION WITH (W) THE EXECUTION OR
DELIVERY OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR
INSTRUMENT CONTEMPLATED THEREBY, THE PERFORMANCE BY THE PARTIES THERETO OF THEIR
RESPECTIVE OBLIGATIONS THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS AND
THE OTHER TRANSACTIONS CONTEMPLATED THEREBY (INCLUDING THE SYNDICATION OF THE
CREDIT FACILITIES), (X) THE USE OF THE PROCEEDS OF THE LOANS OR ISSUANCE OF
LETTERS OF CREDIT, (Y) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION,
INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER OR NOT ANY
INDEMNITEE IS A PARTY THERETO (AND REGARDLESS OF WHETHER SUCH MATTER IS
INITIATED BY A THIRD PARTY OR BY THE BORROWER, ANY OTHER LOAN PARTY OR ANY OF
THEIR RESPECTIVE AFFILIATES), OR (Z) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE
OF HAZARDOUS
148
MATERIALS ON ANY PROPERTY CURRENTLY OR FORMERLY OWNED OR OPERATED BY HOLDINGS,
THE BORROWER OR ANY OF THE SUBSIDIARIES, OR ANY LIABILITY UNDER ENVIRONMENTAL
LAWS RELATED IN ANY WAY TO HOLDINGS, THE BORROWER OR THE SUBSIDIARIES; PROVIDED
THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT
THAT SUCH COSTS, EXPENSES OR LIABILITIES (X) RESULTED FROM THE GROSS NEGLIGENCE,
BAD FAITH, FRAUD OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE (OR ITS AFFILIATES AND
THE RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF SUCH INDEMNITEE AND
SUCH INDEMNITEE'S AFFILIATES) (EACH, A "RELATED PARTY" OF SUCH INDEMNITEE) OR
BREACH