FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND
RELATED COSTS AND EXPENSES, INCLUDING REASONABLE COUNSEL FEES, DISBURSEMENTS AND
OTHER CHARGES, INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN
ANY WAY CONNECTED WITH, OR AS A RESULT OF (I) THE MARKETING AND SYNDICATION OF
THE LOANS AND 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, (II) THE
USE OF THE PROCEEDS OF THE LOANS, (III) ANY CLAIM, LITIGATION, INVESTIGATION OR
PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER OR NOT ANY INDEMNITEE IS A
PARTY THERETO, OR (IV) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS
MATERIALS ON ANY PROPERTY OWNED OR OPERATED BY BORROWER OR ANY OF ITS
SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITIES RELATED IN ANY
56
WAY TO BORROWER OR ANY OF ITS SUBSIDIARIES; PROVIDED THAT SUCH INDEMNITY SHALL
NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS,
DAMAGES, LIABILITIES OR RELATED COSTS AND EXPENSES ARE DETERMINED BY A COURT OF
COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED
SOLELY FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE (AND,
UPON ANY SUCH DETERMINATION, ANY INDEMNIFICATION PAYMENTS WITH RESPECT TO SUCH
LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED COSTS AND EXPENSES PREVIOUSLY
RECEIVED BY SUCH INDEMNITEE SHALL BE SUBJECT TO REIMBURSEMENT BY SUCH
INDEMNITEE).
TO THE EXTENT THAT THE UNDERTAKINGS TO DEFEND, INDEMNIFY, PAY AND
HOLD HARMLESS SET FORTH IN THIS SECTION 9.5(B) MAY BE UNENFORCEABLE IN WHOLE OR
IN PART BECAUSE THEY ARE VIOLATIVE OF ANY LAW OR PUBLIC POLICY, BORROWER SHALL
CONTRIBUTE THE MAXIMUM PORTION THAT IT IS PERMITTED TO PAY AND SATISFY UNDER
APPLICABLE LAW TO THE PAYMENT AND SATISFACTION OF ALL INDEMNIFIED LIABILITIES
INCURRED BY INDEMNITEES OR ANY OF THEM.
(C)
TO THE EXTENT THAT BORROWER FAILS FOR ANY
REASON TO PAY ANY AMOUNT REQUIRED TO BE PAID BY THEM OR ANY OTHER CREDIT PARTY
TO THE AGENT OR THE LEAD ARRANGER UNDER PARAGRAPH (A) OR (B) OF THIS SECTION
9.5, EACH LENDER SEVERALLY AGREES TO PAY TO THE AGENT OR THE LEAD ARRANGER, 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) OF SUCH
UNPAID AMOUNT; PROVIDED THAT THE UNREIMBURSED EXPENSE OR INDEMNIFIED LOSS,
CLAIM, DAMAGE, LIABILITY OR RELATED EXPENSE, AS THE CASE MAY BE, WAS INCURRED BY
OR ASSERTED AGAINST THE AGENT OR THE LEAD ARRANGER IN ITS CAPACITY AS SUCH.
(D)
TO THE EXTENT PERMITTED BY APPLICABLE LAW,
BORROWER SHALL NOT ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE,
ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION
WITH, OR AS A RESULT OF, THIS AGREEMENT OR ANY AGREEMENT OR INSTRUMENT
CONTEMPLATED HEREBY, THE