BY OR ASSERTED AGAINST ANY INDEMNITEE
ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF ANY ACTUAL OR PROSPECTIVE
CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO)
RELATING TO (A) THE EXECUTION OR DELIVERY OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE
PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR
THE CONSUMMATION OF THE TRANSACTIONS OR ANY OTHER TRANSACTIONS CONTEMPLATED
HEREBY, (B) ANY LOAN OR THE USE OF THE PROCEEDS THEREFROM, (C) ANY ACTUAL OR
ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED
OR OPERATED BY THE GUARANTOR OR ANY OF ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL
LIABILITY RELATED IN ANY WAY TO THE GUARANTOR OR ANY OF ITS SUBSIDIARIES;
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) HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
INDEMNITEE, AS DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND
NONAPPEALABLE JUDGMENT (Y) RESULTED FROM A BREACH OF THE CONFIDENTIALITY
PROVISIONS CONTAINED IN SECTION 10.14 BY SUCH INDEMNITEE OR (Z) RESULTED FROM A
DISPUTE SOLELY AMONG THE LENDERS THAT DOES NOT ARISE FROM ANY OBLIGOR'S OR
SUBSIDIARY GUARANTOR'S BREACH OF ITS OBLIGATIONS UNDER ANY LOAN DOCUMENT OR
APPLICABLE LAW.
IF ANY CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING IS
ASSERTED AGAINST ANY INDEMNITEE, SUCH INDEMNITEE SHALL, TO THE EXTENT PERMITTED
BY APPLICABLE LAW OR REGULATION IN THE OPINION OF ITS COUNSEL, NOTIFY THE
BORROWER AS SOON AS REASONABLY PRACTICABLE, BUT THE FAILURE TO SO PROMPTLY
NOTIFY THE BORROWER SHALL NOT AFFECT THE BORROWER'S OBLIGATIONS UNDER THIS
SECTION UNLESS SUCH FAILURE MATERIALLY PREJUDICES THE BORROWER'S RIGHT TO
PARTICIPATE IN THE CONTEST OF SUCH CLAIM, LITIGATION, INVESTIGATION OR
PROCEEDING, AS HEREINAFTER PROVIDED.
IF REQUESTED BY THE BORROWER IN WRITING,
SUCH INDEMNITEE SHALL MAKE REASONABLE GOOD FAITH EFFORTS TO CONTEST THE
VALIDITY, APPLICABILITY AND AMOUNT OF SUCH CLAIM, LITIGATION, INVESTIGATION OR
PROCEEDING AND, EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW OR REGULATIONS
OR AS WOULD OTHERWISE BE UNREASONABLE IN THE CIRCUMSTANCES OR CONTRARY TO THE
INTERNAL POLICIES OF THE INDEMNITEE AS GENERALLY APPLIED, SHALL PERMIT THE
BORROWER TO PARTICIPATE IN SUCH CONTEST.
ANY INDEMNITEE THAT PROPOSES TO SETTLE
OR COMPROMISE ANY CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING FOR WHICH THE
BORROWER MAY BE LIABLE FOR PAYMENT OF INDEMNITY HEREUNDER SHALL GIVE THE
BORROWER WRITTEN NOTICE OF THE TERMS OF SUCH PROPOSED SETTLEMENT OR COMPROMISE
REASONABLY IN ADVANCE OF SETTLING OR COMPROMISING SUCH CLAIM OR
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PROCEEDING AND SHALL OBTAIN THE BORROWER'S PRIOR WRITTEN CONSENT (NOT TO BE
UNREASONABLY WITHHELD).
(C)
TO THE EXTENT THAT THE BORROWER FAILS TO PAY ANY AMOUNT REQUIRED
TO BE PAID BY IT TO THE ADMINISTRATIVE AGENT OR ANY RELATED PARTY THEREOF UNDER
PARAGRAPH (A) OR (B) OF THIS SECTION, EACH LENDER SEVERALLY AGREES TO PAY TO