THEREOF) AND ITS RELATED PARTIES
ONLY, THE ADMINISTRATION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
(II) ANY LOAN OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM, (III) ANY
ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY
PROPERTY OWNED OR OPERATED BY ANY OF THE BORROWERS OR ANY OF THEIR SUBSIDIARIES,
OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO SUCH BORROWER OR ANY SUCH
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 ANY OF THE
BORROWERS, 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; 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 TO HAVE
RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR
(Y) RESULT FROM A CLAIM BROUGHT BY ANY OF THE BORROWERS AGAINST AN INDEMNITEE
FOR BREACH IN BAD FAITH OF SUCH INDEMNITEE'S OBLIGATIONS HEREUNDER OR UNDER ANY
OTHER LOAN DOCUMENT, IF ANY BORROWER HAS OBTAINED A FINAL AND NONAPPEALABLE
JUDGMENT IN ITS FAVOR ON SUCH CLAIM AS DETERMINED BY A COURT OF COMPETENT
JURISDICTION.
UNLESS AN EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING,
THE BORROWERS SHALL BE ENTITLED TO ASSUME THE DEFENSE OF ANY ACTION FOR WHICH
INDEMNIFICATION IS SOUGHT HEREUNDER WITH COUNSEL OF ITS CHOICE AT ITS EXPENSE
(IN WHICH CASE THE BORROWERS SHALL NOT THEREAFTER BE RESPONSIBLE FOR THE FEES
AND EXPENSES OF ANY SEPARATE COUNSEL RETAINED BY AN INDEMNITEE EXCEPT AS SET
FORTH BELOW); PROVIDED, HOWEVER, THAT SUCH COUNSEL SHALL BE REASONABLY
SATISFACTORY TO EACH SUCH INDEMNITEE.
NOTWITHSTANDING THE BORROWERS' ELECTION
TO ASSUME THE DEFENSE OF SUCH ACTION, EACH INDEMNITEE SHALL HAVE THE RIGHT TO
EMPLOY SEPARATE COUNSEL AND TO PARTICIPATE IN THE DEFENSE OF SUCH ACTION, AND
THE BORROWERS SHALL BEAR THE REASONABLE FEES, COSTS AND EXPENSES OF SUCH
SEPARATE COUNSEL IF (I) THE USE OF COUNSEL CHOSEN BY THE BORROWERS TO REPRESENT
SUCH INDEMNITEE WOULD PRESENT SUCH COUNSEL WITH A CONFLICT OF INTEREST; (II) THE
ACTUAL OR POTENTIAL DEFENDANTS IN, OR TARGETS OF, ANY SUCH ACTION INCLUDE THE
BORROWERS AND SUCH INDEMNITEE AND SUCH INDEMNITEE SHALL HAVE REASONABLY
CONCLUDED THAT THERE MAY BE LEGAL DEFENSES AVAILABLE TO IT THAT ARE DIFFERENT
FROM OR ADDITIONAL TO THOSE AVAILABLE TO THE BORROWERS; (III) THE BORROWERS
SHALL NOT HAVE
89
EMPLOYED COUNSEL REASONABLY SATISFACTORY TO SUCH INDEMNITEE TO REPRESENT IT
WITHIN A REASONABLE TIME AFTER NOTICE OF THE INSTITUTION OF SUCH ACTION; OR
(IV) THE BORROWERS SHALL AUTHORIZE SUCH INDEMNITEE TO EMPLOY SEPARATE COUNSEL AT
THE BORROWERS' EXPENSE.
THE BORROWERS WILL NOT BE LIABLE UNDER THIS