DOCUMENT OR ANY
AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE
PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR, IN THE CASE
OF THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT (AND ANY SUB-AGENTS
THEREOF) AND THEIR RELATED PARTIES ONLY, THE ADMINISTRATION OF THIS CREDIT
AGREEMENT AND THE OTHER CREDIT DOCUMENTS, (II) ANY LOAN OR LETTER OF CREDIT OR
THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY THE
L/C ISSUER TO HONOR 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 ENVIRONMENTAL LIABILITY RELATED
TO THE BORROWER OR ANY OF ITS SUBSIDIARIES, OR (IV) ANY 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 THE
BORROWER OR ANY OTHER CREDIT PARTY, 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 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 THE BORROWER
OR ANY OTHER CREDIT PARTY AGAINST AN INDEMNITEE FOR BREACH IN BAD FAITH OF SUCH
INDEMNITEE'S OBLIGATIONS HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT, IF THE
BORROWER OR SUCH CREDIT PARTY HAS OBTAINED A FINAL AND NONAPPEALABLE JUDGMENT IN
ITS FAVOR ON SUCH CLAIM AS DETERMINED BY A COURT OF COMPETENT JURISDICTION.
(C)
REIMBURSEMENT BY LENDERS.
TO THE EXTENT THAT THE BORROWER FOR ANY
REASON FAILS TO INDEFEASIBLY PAY ANY AMOUNT REQUIRED UNDER SUBSECTIONS (A) OR
(B) OF THIS SECTION TO BE PAID BY IT TO THE ADMINISTRATIVE AGENT OR THE
COLLATERAL AGENT, AS THE CASE MAY BE, (OR ANY SUB-AGENT THEREOF) THE L/C ISSUER
OR ANY RELATED PARTY OF ANY OF THE FOREGOING, EACH LENDER SEVERALLY AGREES TO
PAY TO THE ADMINISTRATIVE AGENT OR THE COLLATERAL AGENT, AS THE CASE MAY BE, (OR
ANY SUCH SUB-AGENT) THE L/C ISSUER OR SUCH RELATED PARTY, AS THE CASE MAY BE,
(BUT, IN EACH CASE, WITHOUT AFFECTING THE BORROWER'S OBLIGATIONS WITH RESPECT
THERETO) SUCH LENDER'S AGGREGATE COMMITMENT PERCENTAGE OR, IN THE CASE OF L/C
OBLIGATIONS, DOLLAR REVOLVING COMMITMENT PERCENTAGE (AS OF THE TIME THAT THE
APPLICABLE UNREIMBURSED EXPENSE OR INDEMNITY PAYMENT IS
138
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 ADMINISTRATIVE AGENT OR THE
COLLATERAL AGENT, AS THE CASE