OR ANY CONTRACTUAL OBLIGATION, SYNDICATION OF THE CREDIT FACILITIES
PROVIDED BY THE CREDIT AGREEMENT, ANY ENFORCEMENT OF ANY LOAN DOCUMENTS
(INCLUDING ANY SALES OF, COLLECTION FROM, OR OTHER REALIZATION UPON ANY OF THE
COLLATERAL OR THE ENFORCEMENT OF ANY GUARANTY) ARRANGEMENT OR UNDERSTANDING WITH
ANY BROKER, FINDER OR CONSULTANT, IN EACH CASE ENTERED INTO BY OR ON BEHALF OF
ANY GROUP MEMBER OR ANY AFFILIATE OF ANY OF THEM IN CONNECTION WITH ANY OF THE
FOREGOING AND ANY CONTRACTUAL OBLIGATION ENTERED INTO IN CONNECTION WITH ANY
E-SYSTEMS OR OTHER ELECTRONIC TRANSMISSIONS, (III) ANY ACTUAL OR PROSPECTIVE
INVESTIGATION, LITIGATION OR OTHER PROCEEDING, WHETHER OR NOT BROUGHT BY ANY
SUCH INDEMNITEE OR ANY OF ITS RELATED PERSONS, ANY HOLDERS OF SECURITIES OR
CREDITORS (AND INCLUDING ATTORNEYS' FEES IN ANY CASE), WHETHER OR NOT ANY SUCH
INDEMNITEE, RELATED PERSON, HOLDER OR CREDITOR IS A PARTY THERETO, AND WHETHER
OR NOT BASED ON ANY SECURITIES OR COMMERCIAL LAW OR REGULATION OR ANY OTHER
REQUIREMENT OF LAW OR THEORY THEREOF, INCLUDING COMMON LAW, EQUITY, CONTRACT,
TORT OR OTHERWISE, OR (IV) ANY OTHER ACT, EVENT OR TRANSACTION RELATED,
CONTEMPLATED IN OR ATTENDANT TO ANY OF THE FOREGOING (COLLECTIVELY, THE
"INDEMNIFIED MATTERS"); PROVIDED, THAT THE BORROWER SHALL NOT HAVE ANY LIABILITY
UNDER THIS SECTION 8.13 TO AN INDEMNITEE WITH RESPECT TO, AND NO INDEMNITEE
SHALL HAVE ANY LIABILITY HEREUNDER OTHER THAN (TO THE EXTENT OTHERWISE LIABLE)
FOR, ANY INDEMNIFIED MATTER TO THE EXTENT SUCH LIABILITY HAS RESULTED FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE, AS DETERMINED BY A
COURT OF COMPETENT JURISDICTION IN A FINAL NON-APPEALABLE JUDGMENT OR ORDER. THE
FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH INDEMNIFIED
LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY
CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED, IN WHOLE OR IN PART, OUT OF
THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF ANY INDEMNITEE. FURTHERMORE,
EACH OF PARENT AND THE BORROWER WAIVES AND AGREES NOT TO ASSERT AGAINST ANY
INDEMNITEE, AND SHALL CAUSE EACH OTHER LOAN PARTY TO WAIVE AND NOT ASSERT
AGAINST ANY INDEMNITEE, ANY RIGHT OF CONTRIBUTION WITH RESPECT TO ANY
LIABILITIES THAT MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST ANY RELATED
PERSON.
27
(b)
Without limiting the foregoing, "Indemnified Matters" includes all
Environmental Liabilities, including those arising from, or otherwise involving,
any property of any Group Member or any actual, alleged or prospective damage to
property or natural resources or harm or injury alleged to have resulted from
any Release of Hazardous Materials on, upon or into such property or natural
resource or any property on or contiguous to any real property of any Group
Member, whether or not, with respect to any such Environmental Liabilities, any
Indemnitee is a mortgagee in possession, the successor-in-interest to any Group
Member or the owner, lessee or operator of any property or facility of any Group
Member through any foreclosure action, in each case except to the extent such
Environmental Liabilities (i) are incurred solely