OR LETTERS OF
CREDIT.
(B)
SYMMETRY AND THE BORROWERS SHALL INDEMNIFY THE ADMINISTRATIVE AGENT, THE
ARRANGERS, THE SYNDICATION AGENT, EACH ISSUING BANK AND EACH LENDER, AND EACH
RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH PERSON BEING CALLED AN
"INDEMNITEE") AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL
LOSSES, CLAIMS, DAMAGES, PENALTIES, LIABILITIES AND RELATED EXPENSES, INCLUDING
THE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE, INCURRED
BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN CONNECTION WITH OR AS A
RESULT OF (I) THE ARRANGEMENT AND THE SYNDICATION OF THE CREDIT FACILITIES
PROVIDED FOR HEREIN, THE PREPARATION, EXECUTION, DELIVERY AND ADMINISTRATION OF
THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE
PERFORMANCE BY THE PARTIES TO THE LOAN DOCUMENTS OF THEIR RESPECTIVE OBLIGATIONS
THEREUNDER OR THE CONSUMMATION OF THE TRANSACTIONS OR ANY OTHER TRANSACTIONS
CONTEMPLATED HEREBY, (II) ANY LOAN, BA OR LETTER OF CREDIT OR THE USE OF THE
PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY AN 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), (III) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS
ON OR FROM ANY MORTGAGED PROPERTY OR ANY OTHER PROPERTY CURRENTLY OR FORMERLY
OWNED OR OPERATED BY SYMMETRY, EITHER BORROWER OR ANY OTHER SUBSIDIARY, OR ANY
ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO SYMMETRY, EITHER BORROWERS OR ANY
OTHER SUBSIDIARY, OR (IV) ANY ACTUAL OR PROSPECTIVE
119
CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING,
WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND REGARDLESS OF WHETHER
ANY INDEMNITEE IS A PARTY THERETO AND REGARDLESS OF WHETHER SUCH MATTER IS
INITIATED BY A THIRD PARTY OR BY A BORROWER OR ANY AFFILIATE THEREOF; PROVIDED
THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT
THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE
DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE
JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SUCH
INDEMNITEE.
(C)
TO THE EXTENT THAT SYMMETRY OR A BORROWER FAILS TO PAY ANY AMOUNT REQUIRED
TO BE PAID BY IT TO THE ADMINISTRATIVE AGENT, AN ARRANGER, THE SYNDICATION
AGENT, ANY ISSUING BANK OR THE SWINGLINE LENDER UNDER PARAGRAPH (A) OR (B) OF
THIS SECTION, EACH LENDER SEVERALLY AGREES TO PAY TO THE ADMINISTRATIVE AGENT,
SUCH ARRANGER, THE SYNDICATION AGENT, SUCH ISSUING BANK OR THE SWINGLINE LENDER,
AS THE CASE MAY BE, SUCH LENDER'S PRO RATA SHARE (DETERMINED AS OF THE TIME THAT
THE APPLICABLE UNREIMBURSED EXPENSE OR INDEMNITY PAYMENT IS 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, SUCH ARRANGER, THE SYNDICATION
AGENT, SUCH ISSUING BANK OR THE SWINGLINE LENDER IN ITS CAPACITY AS SUCH.