LIABILITIES AND
DAMAGES, AND EXPENSES INCURRED IN CONNECTION THEREWITH (IRRESPECTIVE OF WHETHER
ANY SUCH INDEMNIFIED PARTY IS A PARTY TO THE ACTION FOR WHICH INDEMNIFICATION
HEREUNDER IS SOUGHT), INCLUDING REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS
(COLLECTIVELY, THE "INDEMNIFIED LIABILITIES") , INCURRED BY THE INDEMNIFIED
PARTIES OR ANY OF THEM AS A RESULT OF, OR ARISING OUT OF, OR RELATING TO
(A)
ANY TRANSACTION FINANCED OR TO BE FINANCED
IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, WITH THE PROCEEDS OF ANY LOAN;
(B)
THE ENTERING INTO AND PERFORMANCE OF THIS
AGREEMENT AND ANY OTHER LOAN DOCUMENT BY ANY OF THE INDEMNIFIED PARTIES;
(C)
ANY INVESTIGATION, LITIGATION OR PROCEEDING
RELATED TO ANY ACQUISITION OR PROPOSED ACQUISITION BY THE BORROWER OR ANY OF ITS
SUBSIDIARIES OF ALL OR ANY PORTION OF THE STOCK OR ASSETS OF ANY PERSON, WHETHER
OR NOT THE AGENTS, THE LEAD ARRANGERS OR SUCH LENDER IS PARTY THERETO;
58
(D)
ANY INVESTIGATION, LITIGATION OR PROCEEDING
RELATED TO ANY ENVIRONMENTAL CLEANUP, AUDIT, COMPLIANCE OR OTHER MATTER RELATING
TO THE PROTECTION OF THE ENVIRONMENT OR THE RELEASE BY THE BORROWER OR ANY OF
ITS SUBSIDIARIES OF ANY HAZARDOUS MATERIAL; OR
(E)
THE PRESENCE ON OR UNDER, OR THE ESCAPE,
SEEPAGE, LEAKAGE, SPILLAGE, DISCHARGE, EMISSION, DISCHARGING OR RELEASES FROM,
ANY REAL PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY SUBSIDIARY THEREOF OF
ANY HAZARDOUS MATERIAL (INCLUDING ANY LOSSES, LIABILITIES, DAMAGES, INJURIES,
COSTS, EXPENSES OR CLAIMS ASSERTED OR ARISING UNDER ANY ENVIRONMENTAL LAW),
REGARDLESS OF WHETHER CAUSED BY, OR WITHIN THE CONTROL OF, THE BORROWER OR SUCH
SUBSIDIARY,
except for any such Indemnified Liabilities arising by reason of the relevant
Indemnified Party's gross negligence or willful misconduct.
If and to the
extent that the foregoing undertaking may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 10.5.
SURVIVAL.
THE OBLIGATIONS OF THE BORROWER UNDER SECTIONS 4.3,
4.4, 4.5, 4.6, 10.3 AND 10.4, AND THE OBLIGATIONS OF THE LENDERS UNDER
SECTION 9.1, SHALL IN EACH CASE SURVIVE ANY TERMINATION OF THIS AGREEMENT AND
THE PAYMENT IN FULL OF ALL OBLIGATIONS AND THE TERMINATION OF ALL COMMITMENTS.
THE REPRESENTATIONS AND WARRANTIES MADE BY THE BORROWER IN THIS AGREEMENT AND IN
EACH OTHER LOAN DOCUMENT SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.6.
SEVERABILITY.
ANY PROVISION OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT WHICH IS PROHIBITED OR UNENFORCEABLE IN ANY JURISDICTION SHALL, AS TO
SUCH PROVISION AND SUCH JURISDICTION, BE INEFFECTIVE TO THE EXTENT OF SUCH
PROHIBITION OR UNENFORCEABILITY WITHOUT INVALIDATING THE REMAINING PROVISIONS OF
THIS AGREEMENT OR SUCH LOAN DOCUMENT OR AFFECTING THE VALIDITY OR ENFORCEABILITY
OF SUCH PROVISION IN ANY OTHER JURISDICTION.
SECTION 10.7.
HEADINGS.
THE VARIOUS HEADINGS OF THIS AGREEMENT AND OF EACH
OTHER LOAN DOCUMENT ARE INSERTED FOR CONVENIENCE ONLY AND SHALL NOT AFFECT THE
MEANING OR INTERPRETATION OF THIS AGREEMENT OR SUCH OTHER LOAN DOCUMENT OR