other documents prepared in connection herewith, and the consummation of the
transaction contemplated hereby and thereby, and (iii) to pay or reimburse each
Bank and each Agent for all its out-of-pocket costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement and any such other documents, including, without limitation, fees and
disbursements of counsel to each Agent and one counsel representing the Banks.
(B)
THE BORROWERS AGREE JOINTLY AND SEVERALLY TO INDEMNIFY AND HOLD
HARMLESS EACH AGENT AND EACH BANK AND EACH DIRECTOR, OFFICER, EMPLOYEE,
AFFILIATE AND AGENT THEREOF (EACH, AN "INDEMNIFIED PERSON") AGAINST, AND TO
REIMBURSE EACH INDEMNIFIED PERSON, UPON ITS DEMAND, FOR, ANY LOSSES, CLAIMS,
DAMAGES, LIABILITIES OR OTHER EXPENSES ("LOSSES") TO WHICH SUCH INDEMNIFIED
PERSON MAY BECOME SUBJECT INSOFAR AS SUCH LOSSES ARISE OUT OF OR IN ANY WAY
RELATE TO OR RESULT FROM THIS AGREEMENT OR THE EXTENSIONS OF CREDIT MADE
HEREUNDER (INCLUDING THE RESPONSIBILITIES, DUTIES AND OBLIGATIONS OF THE BANKS
HEREUNDER AND THEIR AGREEMENT TO MAKE LOANS HEREUNDER), INCLUDING, WITHOUT
LIMITATION, LOSSES CONSISTING OF LEGAL OR OTHER EXPENSES INCURRED IN CONNECTION
WITH INVESTIGATING, DEFENDING OR PARTICIPATING IN ANY LEGAL PROCEEDING RELATING
TO THE FOREGOING (WHETHER OR NOT SUCH INDEMNIFIED PERSON IS A PARTY THERETO);
PROVIDED, THAT THE FOREGOING WILL NOT APPLY TO ANY LOSSES TO THE EXTENT THEY
RESULT FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PERSON.
THIS INDEMNITY AGREEMENT SHALL BE IN ADDITION TO ANY LIABILITY WHICH EITHER
BORROWER MAY OTHERWISE HAVE AND SHALL BE SUBJECT TO THE FOLLOWING PARAGRAPH.
(C)
PROMPTLY AFTER RECEIPT BY AN INDEMNIFIED PARTY UNDER SUBSECTION
10.4(B) OF WRITTEN NOTICE OF ANY LOSS, CLAIM, DAMAGE OR LIABILITY IN RESPECT OF
WHICH INDEMNITY MAY BE SOUGHT BY IT HEREUNDER, SUCH INDEMNIFIED PARTY WILL, IF A
CLAIM IS TO BE MADE AGAINST THE BORROWERS, NOTIFY THE BORROWERS THEREOF IN
WRITING; BUT THE OMISSION SO TO NOTIFY THE BORROWERS WILL NOT RELIEVE THE
BORROWERS FROM ANY LIABILITY (OTHERWISE THAN UNDER THIS SUBSECTION 10.4) WHICH
THEY MAY HAVE TO ANY INDEMNIFIED PARTY EXCEPT AS MAY BE REQUIRED OR PROVIDED
OTHERWISE THAN UNDER THIS SUBSECTION 10.4.
THEREAFTER, THE INDEMNIFIED PARTY
AND THE BORROWERS SHALL CONSULT, TO THE EXTENT APPROPRIATE, WITH A VIEW TO
MINIMIZING THE COST TO THE BORROWERS OF THEIR OBLIGATIONS HEREUNDER.
IN CASE
ANY INDEMNIFIED PARTY RECEIVES WRITTEN NOTICE OF ANY LOSS, CLAIM, DAMAGE OR
LIABILITY IN RESPECT OF WHICH INDEMNITY MAY BE SOUGHT HEREUNDER BY IT AND IT
NOTIFIES THE BORROWERS THEREOF, THE BORROWERS WILL BE ENTITLED TO PARTICIPATE
THEREIN AND, TO THE EXTENT THAT THEY MAY ELECT BY WRITTEN NOTICE DELIVERED TO
THE INDEMNIFIED PARTY PROMPTLY AFTER RECEIVING THE AFORESAID NOTICE FROM SUCH
INDEMNIFIED PARTY, TO ASSUME THE DEFENSE THEREOF, WITH COUNSEL
63
REASONABLY SATISFACTORY AT ALL TIMES TO SUCH INDEMNIFIED PARTY; PROVIDED,
HOWEVER, THAT (I) IF THE PARTIES AGAINST WHOM ANY LOSS, CLAIM, DAMAGE OR
LIABILITY ARISES INCLUDE BOTH THE INDEMNIFIED PARTY AND A BORROWER OR ANY
SUBSIDIARY OF A BORROWER AND THE INDEMNIFIED PARTY SHALL HAVE REASONABLY
CONCLUDED THAT