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 BORROWER OR ANY OF ITS SUBSIDIARIES, OR ANY
ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO ANY BORROWER OR ANY OF ITS
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 THE COMPANY OR ANY
OTHER LOAN PARTY, 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
(X) ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND
NONAPPEALABLE JUDGMENT (OR A SETTLEMENT THAT EXPRESSLY ADDRESSES
INDEMNIFICATION) TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH INDEMNITEE, (Y) RESULT FROM A CLAIM BROUGHT BY THE COMPANY OR
ANY OTHER LOAN PARTY AGAINST AN INDEMNITEE FOR MATERIAL BREACH OF SUCH
INDEMNITEE'S OBLIGATIONS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, IF THE
COMPANY OR SUCH OTHER LOAN PARTY HAS OBTAINED A FINAL AND NONAPPEALABLE JUDGMENT
IN ITS FAVOR ON SUCH CLAIM AS DETERMINED BY A COURT OF COMPETENT JURISDICTION
(OR A SETTLEMENT THAT EXPRESSLY ADDRESSES INDEMNIFICATION) OR (Z) ARISE FROM
CLAIMS OF ANY LENDERS SOLELY AGAINST ONE OR MORE LENDERS THAT HAVE NOT RESULTED
FROM ANY MISREPRESENTATION, DEFAULT OR MATERIAL BREACH OF ANY OF THE LOAN
DOCUMENTS BY THE LOAN PARTIES (EXCEPT ANY SUCH CLAIMS AGAINST THE ADMINISTRATIVE
AGENT (IN ITS CAPACITY AS THE ADMINISTRATIVE AGENT) AND THE L/C ISSUERS (IN
THEIR RESPECTIVE CAPACITIES AS L/C ISSUERS)).
FOR PURPOSES HEREOF, A "RELATED
PERSON" OF AN INDEMNIFIED PERSON MEANS (I) IF THE INDEMNIFIED PERSON IS THE
ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES, ANY OF THE ADMINISTRATIVE
AGENT AND ITS RELATED PARTIES, (II) IF THE INDEMNIFIED PERSON IS A LENDER OR ANY
OF ITS RELATED PARTIES, ANY OF SUCH LENDER AND ITS RELATED PARTIES.
(C)
REIMBURSEMENT BY LENDERS.
TO THE EXTENT THAT THE COMPANY
FOR ANY REASON FAILS TO INDEFEASIBLY PAY ANY AMOUNT REQUIRED UNDER SUBSECTION
(A) OR (B) OF THIS SECTION TO BE PAID BY IT TO THE ADMINISTRATIVE AGENT (OR ANY
SUB-AGENT THEREOF), ANY L/C ISSUER, THE SWING LINE LENDER OR ANY RELATED PARTY
OF ANY OF THE FOREGOING, EACH LENDER SEVERALLY AGREES TO PAY TO THE
ADMINISTRATIVE AGENT (OR ANY SUCH SUB-AGENT), SUCH L/C ISSUER, THE SWING LINE
LENDER OR SUCH RELATED PARTY, AS THE CASE MAY BE, SUCH LENDER'S PRO RATA SHARE
(DETERMINED AS OF THE TIME THAT THE APPLICABLE UNREIMBURSED EXPENSE OR INDEMNITY
PAYMENT IS SOUGHT BASED ON EACH LENDER'S SHARE OF THE TOTAL CREDIT EXPOSURE AT
SUCH TIME) OF SUCH UNPAID AMOUNT (INCLUDING ANY SUCH UNPAID AMOUNT IN