AND AGAINST ANY AND ALL LIABILITIES, LOSSES, DAMAGES, COSTS AND
EXPENSES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND
DISBURSEMENTS OF COUNSEL, WHICH MAY BE INCURRED BY SUCH INDEMNITEE IN CONNECTION
WITH ANY INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING THAT MAY AT ANY
TIME (INCLUDING, WITHOUT LIMITATION, AT ANY TIME FOLLOWING THE PAYMENT OF THE
OBLIGATIONS) BE ASSERTED AGAINST ANY INDEMNITEE, AS A RESULT OF, OR ARISING OUT
OF, OR IN ANY WAY RELATED TO OR BY REASON OF, (I) ANY OF THE TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS OR THE EXECUTION, DELIVERY OR PERFORMANCE OF
ANY LOAN DOCUMENT, (II) ANY VIOLATION BY THE BORROWER OR THE ENVIRONMENTAL
AFFILIATES OF ANY APPLICABLE ENVIRONMENTAL LAW, (III) ANY ENVIRONMENTAL CLAIM
ARISING OUT OF THE MANAGEMENT, USE, CONTROL, OWNERSHIP OR OPERATION OF PROPERTY
OR ASSETS BY THE BORROWER OR ANY OF THE ENVIRONMENTAL AFFILIATES, INCLUDING,
WITHOUT LIMITATION, ALL ON-SITE AND OFF-SITE ACTIVITIES OF BORROWER OR ANY
ENVIRONMENTAL AFFILIATE INVOLVING MATERIALS OF ENVIRONMENTAL CONCERN, (IV) THE
BREACH OF ANY ENVIRONMENTAL REPRESENTATION OR WARRANTY SET FORTH HEREIN, BUT
EXCLUDING THOSE LIABILITIES, LOSSES, DAMAGES, COSTS AND EXPENSES (A) FOR WHICH
SUCH INDEMNITEE HAS BEEN COMPENSATED PURSUANT TO THE TERMS OF THIS AGREEMENT OR
THAT ARE EXCLUDED UNDER SECTION 8.3, (B) INCURRED SOLELY BY REASON OF THE GROSS
NEGLIGENCE, WILLFUL MISCONDUCT, BAD FAITH OR FRAUD OF SUCH INDEMNITEE AS FINALLY
DETERMINED BY A COURT OF COMPETENT JURISDICTION, (C) ARISING FROM ANY VIOLATION
OF ENVIRONMENTAL LAW RELATING TO A PROPERTY, WHICH VIOLATION IS CAUSED BY THE
ACT OR OMISSION OF SUCH INDEMNITEE AFTER SUCH INDEMNITEE TAKES POSSESSION OF
SUCH PROPERTY OR (D) OWING BY SUCH INDEMNITEE TO ANY THIRD PARTY BASED UPON
CONTRACTUAL OBLIGATIONS OF SUCH INDEMNITEE OWING TO SUCH THIRD PARTY WHICH ARE
NOT EXPRESSLY SET FORTH IN THE LOAN DOCUMENTS. IN ADDITION, THE INDEMNIFICATION
SET FORTH IN THIS SECTION 9.3(B) IN FAVOR OF ANY DIRECTOR, OFFICER, AGENT OR
EMPLOYEE OF ADMINISTRATIVE AGENT OR ANY BANK SHALL BE SOLELY IN THEIR RESPECTIVE
CAPACITIES AS SUCH DIRECTOR, OFFICER, AGENT OR EMPLOYEE. THE BORROWER'S
OBLIGATIONS UNDER THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT
AND THE PAYMENT OF THE OBLIGATIONS. WITHOUT LIMITATION OF THE OTHER PROVISIONS
OF THIS SECTION 9.3, BORROWER SHALL INDEMNIFY AND HOLD EACH OF THE
ADMINISTRATIVE AGENT AND THE BANKS FREE AND HARMLESS FROM AND AGAINST ALL LOSS,
COSTS (INCLUDING REASONABLE AND DOCUMENTED ATTORNEYS' FEES AND EXPENSES),
EXPENSES, TAXES, AND DAMAGES (INCLUDING CONSEQUENTIAL DAMAGES) THAT THE
ADMINISTRATIVE AGENT AND THE BANKS MAY SUFFER OR INCUR BY REASON OF THE
INVESTIGATION, DEFENSE AND SETTLEMENT OF CLAIMS AND IN OBTAINING ANY PROHIBITED
TRANSACTION EXEMPTION UNDER ERISA OR THE CODE NECESSARY IN THE ADMINISTRATIVE
AGENT'S REASONABLE JUDGMENT BY REASON OF THE INACCURACY OF THE REPRESENTATIONS
AND WARRANTIES, OR A BREACH OF THE PROVISIONS, SET FORTH IN SECTION 4.6(B).
SECTION 9.4.
Sharing of Set-Offs. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event