ANY CONTRACTUAL OBLIGATION ENTERED INTO
IN CONNECTION WITH ANY E-SYSTEMS OR OTHER ELECTRONIC TRANSMISSIONS, (III) ANY
ACTUAL OR PROSPECTIVE INVESTIGATION, LITIGATION OR OTHER PROCEEDING, WHETHER OR
NOT BROUGHT BY ANY SUCH INDEMNITEE OR ANY OF ITS RELATED PERSONS, ANY HOLDERS OF
SECURITIES OR CREDITORS (AND INCLUDING ATTORNEYS' FEES IN ANY CASE), WHETHER OR
NOT ANY SUCH INDEMNITEE, RELATED PERSON, HOLDER OR CREDITOR IS A PARTY THERETO,
AND WHETHER OR NOT BASED ON ANY SECURITIES OR COMMERCIAL LAW OR REGULATION OR
ANY OTHER REQUIREMENT OF LAW OR THEORY THEREOF, INCLUDING COMMON LAW, EQUITY,
CONTRACT, TORT OR OTHERWISE, OR (IV) ANY OTHER ACT, EVENT OR TRANSACTION
RELATED, CONTEMPLATED IN OR ATTENDANT TO ANY OF THE FOREGOING (COLLECTIVELY, THE
"INDEMNIFIED MATTERS"); PROVIDED, HOWEVER, THAT THE BORROWER SHALL NOT HAVE ANY
LIABILITY UNDER THIS SECTION 11.4 TO ANY INDEMNITEE WITH RESPECT TO ANY
INDEMNIFIED MATTERS, AND NO INDEMNITEE SHALL HAVE ANY LIABILITY WITH RESPECT TO
ANY INDEMNIFIED MATTERS OTHER THAN (TO THE EXTENT OTHERWISE LIABLE), TO THE
EXTENT SUCH LIABILITY HAS RESULTED PRIMARILY FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF SUCH INDEMNITEE, AS DETERMINED BY A COURT OF COMPETENT
JURISDICTION IN A FINAL NON-APPEALABLE JUDGMENT OR ORDER.
FURTHERMORE, EACH OF
HOLDINGS AND THE BORROWER WAIVES AND AGREES NOT TO ASSERT AGAINST ANY
INDEMNITEE, AND SHALL CAUSE EACH OTHER LOAN PARTY TO WAIVE AND NOT ASSERT
AGAINST ANY INDEMNITEE, ANY RIGHT OF CONTRIBUTION WITH RESPECT TO ANY
LIABILITIES THAT MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY RELATED
PERSON.
ANY AMOUNTS PAYABLE UNDER THIS SECTION SHALL BE WITHOUT DUPLICATION OF
ANY AMOUNTS PAYABLE IN RESPECT OF TAXES UNDER SECTION 2.17.
112
(B)
WITHOUT LIMITING THE FOREGOING, "INDEMNIFIED MATTERS" INCLUDES
ALL ENVIRONMENTAL LIABILITIES, INCLUDING THOSE ARISING FROM, OR OTHERWISE
INVOLVING, ANY PROPERTY OF ANY RELATED PERSON OR ANY ACTUAL, ALLEGED OR
PROSPECTIVE DAMAGE TO PROPERTY OR NATURAL RESOURCES OR HARM OR INJURY ALLEGED TO
HAVE RESULTED FROM ANY RELEASE OF HAZARDOUS MATERIALS ON, UPON OR INTO SUCH
PROPERTY OR NATURAL RESOURCE OR ANY PROPERTY ON OR CONTIGUOUS TO ANY REAL
PROPERTY OF ANY RELATED PERSON, WHETHER OR NOT, WITH RESPECT TO ANY SUCH
ENVIRONMENTAL LIABILITIES, ANY INDEMNITEE IS A MORTGAGEE PURSUANT TO ANY
LEASEHOLD MORTGAGE, A MORTGAGEE IN POSSESSION, THE SUCCESSOR-IN-INTEREST TO ANY
RELATED PERSON OR THE OWNER, LESSEE OR OPERATOR OF ANY PROPERTY OF ANY RELATED
PERSON THROUGH ANY FORECLOSURE ACTION, IN EACH CASE EXCEPT TO THE EXTENT SUCH
ENVIRONMENTAL LIABILITIES (I) ARE INCURRED SOLELY FOLLOWING FORECLOSURE BY ANY
SECURED PARTY OR FOLLOWING ANY SECURED PARTY HAVING BECOME THE
SUCCESSOR-IN-INTEREST TO ANY LOAN PARTY AND (II) ARE ATTRIBUTABLE SOLELY TO ACTS
OF SUCH INDEMNITEE.
SECTION 11.5
SURVIVAL.
ANY INDEMNIFICATION OR OTHER PROTECTION PROVIDED
TO ANY INDEMNITEE PURSUANT TO ANY LOAN DOCUMENT (INCLUDING PURSUANT TO
SECTION 2.17 (TAXES), SECTION 2.16 (BREAKAGE COSTS; INCREASED COSTS; CAPITAL
REQUIREMENTS), ARTICLE 10 (THE ADMINISTRATIVE AGENT), SECTION 11.3 (COSTS AND
EXPENSES), SECTION 11.4 (INDEMNITIES) OR THIS SECTION 11.5) SHALL (A) SURVIVE
THE TERMINATION OF THE REVOLVING CREDIT COMMITMENTS AND THE PAYMENT IN FULL OF
OTHER OBLIGATIONS AND