ISSUANCE,
EXECUTION AND DELIVERY OR TRANSFER OF ANY LETTER OF CREDIT, (G) ANY REFUSAL BY
ANY ISSUING BANK 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, (H) THE PAYMENT OF A DRAWING UNDER ANY
LETTER OF CREDIT NOTWITHSTANDING THE NON-COMPLIANCE, NON-DELIVERY OR OTHER
IMPROPER PRESENTATION OF THE MANUALLY EXECUTED DRAFT(S) AND CERTIFICATION(S),
(I) ANY ASSERTION THAT THE LENDERS WERE NOT ENTITLED TO RECEIVE THE PROCEEDS OF
COLLATERAL RECEIVED PURSUANT TO THE SECURITY INSTRUMENTS AND OTHER LOAN
DOCUMENTS OR (J) ANY OTHER ASPECT OF THE LOAN DOCUMENTS, INCLUDING, WITHOUT
LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL AND ALL OTHER
EXPENSES INCURRED IN CONNECTION WITH INVESTIGATING, DEFENDING OR PREPARING TO
DEFEND ANY ACTION, SUIT, PROCEEDING (INCLUDING ANY INVESTIGATIONS, LITIGATION OR
INQUIRIES) OR CLAIM RELATING TO ANY OF THE FOREGOING, AND INCLUDING ANY SUCH
LOSSES, CLAIMS, LIABILITIES, DAMAGES AND REASONABLE COSTS AND EXPENSES ARISING
BY REASON OF THE ORDINARY NEGLIGENCE OF ANY INDEMNIFIED PARTY; PROVIDED THAT THE
FOREGOING INDEMNITY SHALL NOT, AS TO ANY INDEMNIFIED PARTY, BE AVAILABLE TO THE
EXTENT THAT SUCH LOSSES, CLAIMS, LIABILITIES, DAMAGES AND REASONABLE COSTS AND
EXPENSES (X) ARISE SOLELY BY REASON OF CLAIMS BETWEEN THE LENDERS OR ANY LENDER
AND THE ADMINISTRATIVE AGENT OR A LENDER'S SHAREHOLDERS AGAINST THE
ADMINISTRATIVE AGENT OR ANY LENDER OR (Y) BY REASON OF THE GROSS NEGLIGENCE,
WILLFUL MISCONDUCT OR BAD FAITH ON THE PART OF SUCH INDEMNIFIED PARTY OR THE
MATERIAL BREACH OF SUCH INDEMNIFIED PARTY'S OBLIGATIONS UNDER THE LOAN
DOCUMENTS, IN EACH CASE, AS DETERMINED IN A FINAL NONAPPEALABLE DECISION OF A
COURT OF COMPETENT JURISDICTION; AND
(iii)
TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO
TIME THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS,
LIABILITIES, DAMAGES AND REASONABLE COSTS AND EXPENSES TO WHICH ANY SUCH PERSON
MAY BECOME SUBJECT (A) UNDER ANY ENVIRONMENTAL LAW APPLICABLE TO EXLP, THE
BORROWER OR ANY SUBSIDIARY OR ANY OF THEIR PROPERTIES, INCLUDING WITHOUT
LIMITATION, THE TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON ANY OF THEIR
PROPERTIES, (B) AS A RESULT OF THE BREACH OR NON-
90
COMPLIANCE BY EXLP, THE BORROWER OR ANY SUBSIDIARY WITH ANY ENVIRONMENTAL LAW
APPLICABLE TO EXLP, THE BORROWER OR ANY SUBSIDIARY, (C) DUE TO PAST OWNERSHIP BY
EXLP, THE BORROWER OR ANY SUBSIDIARY OF ANY OF THEIR PROPERTIES OR PAST ACTIVITY
ON ANY OF THEIR PROPERTIES WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE
TIME, COULD RESULT IN PRESENT LIABILITY, (D) THE PRESENCE, USE, RELEASE,
STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON OR AT ANY OF THE
PROPERTIES OWNED OR OPERATED BY EXLP, THE BORROWER OR ANY SUBSIDIARY, OR (E) ANY
OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN CONNECTION WITH THE LOAN
DOCUMENTS; PROVIDED, HOWEVER, NO INDEMNITY SHALL BE AFFORDED UNDER THIS
SECTION 12.03(A)(III) IN RESPECT OF ANY PROPERTY FOR ANY OCCURRENCE ARISING FROM
THE ACTS OR OMISSIONS OF ANY INDEMNIFIED PARTY AFTER THE DATE ON WHICH EXLP,