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 CREDIT PARTY OR ANY SUBSIDIARY THEREOF, OR ANY ENVIRONMENTAL
CLAIM RELATED IN ANY WAY TO ANY CREDIT PARTY OR ANY SUBSIDIARY, (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 CREDIT PARTY OR ANY SUBSIDIARY THEREOF, AND
REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY 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, OR (V) ANY CLAIM (INCLUDING,
WITHOUT LIMITATION, ANY ENVIRONMENTAL CLAIMS), INVESTIGATION, LITIGATION OR
OTHER PROCEEDING
(WHETHER OR NOT THE ADMINISTRATIVE AGENT OR ANY LENDER IS A PARTY THERETO) AND
THE PROSECUTION AND DEFENSE THEREOF, ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THE LOANS, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR ANY DOCUMENTS
CONTEMPLATED BY OR REFERRED TO HEREIN OR THEREIN OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, INCLUDING WITHOUT LIMITATION, REASONABLE
ATTORNEYS AND CONSULTANT'S FEES, PROVIDED THAT (X) SUCH INDEMNITY SHALL NOT, AS
TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES,
LIABILITIES OR RELATED EXPENSES (A) 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, (B) RESULT FROM A CLAIM
BROUGHT BY ANY CREDIT PARTY OR ANY SUBSIDIARY THEREOF AGAINST AN INDEMNITEE FOR
BREACH IN BAD FAITH OF SUCH INDEMNITEE'S OBLIGATIONS HEREUNDER OR UNDER ANY
OTHER LOAN DOCUMENT, OR (C) TO THE EXTENT SUCH LOSSES RELATED TO ANY PROCEEDING
SOLELY BETWEEN OR AMONG INDEMNITEES, IN EACH CASE IF SUCH CREDIT PARTY OR SUCH
SUBSIDIARY HAS OBTAINED A FINAL AND NONAPPEALABLE JUDGMENT IN ITS FAVOR ON SUCH
CLAIM AS DETERMINED BY A COURT OF COMPETENT JURISDICTION AND (Y) FOLLOWING THE
ENTRY OF ANY SUCH FINAL AND NONAPPEALABLE JUDGMENT REFERRED TO IN CLAUSE (X)
ABOVE, ANY FUNDS RECEIVED BY SUCH INDEMNITEE PURSUANT TO THIS SECTION 12.3(B)
SHALL BE PROMPTLY REFUNDED TO THE APPLICABLE CREDIT PARTIES. THIS
SECTION 12.3(B) SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT
REPRESENT LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM.
(c)Reimbursement by Lenders. To the extent that the Borrower for any reason
fails to indefeasibly pay any amount required under clause (a) or (b) of this
Section to be paid by it to the Administrative Agent (or any sub-agent thereof),
any Issuing Lender, the Swingline 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 Issuing Lender, the Swingline Lender or such Related
Party,