OR
PROPOSED USE OF THE PROCEEDS THEREFROM, (III) ANY ACTUAL OR ALLEGED PRESENCE OR
RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY
BORROWER OR ANY OF ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN
ANY WAY TO BORROWER OR ANY OF ITS SUBSIDIARIES, OR (IV) ANY ACTUAL OR
PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF
THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER
BROUGHT BY A THIRD PARTY OR BY BORROWER OR ANY OTHER LOAN PARTY,
AND REGARDLESS
OF WHETHER ANY INDEMNITEE IS A PARTY THERETO; 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 WILLFUL MISCONDUCT OF, OR BREACH OF THE LOAN DOCUMENTS BY, SUCH
INDEMNITEE; AND PROVIDED FURTHER THAT NO LOAN PARTY SHALL HAVE ANY OBLIGATION TO
ANY INDEMNITEE HEREUNDER WITH RESPECT TO SUCH INDEMNIFIED LIABILITIES ARISING
OUT OF LEGAL PROCEEDINGS COMMENCED AGAINST A LENDER BY THE ASSIGNEE OF SUCH
LENDER TO THE EXTENT SUCH PROCEEDINGS RELATES (A) SOLELY TO BREACHES OF
REPRESENTATIONS OR WARRANTIES OF SUCH ASSIGNING LENDER REGARDING OWNERSHIP OR
AUTHORITY TO ASSIGN ALL OR A PORTION OF ITS COMMITMENT OR LOANS OWING TO IT OR
OTHER OBLIGATION, OR (B) PRINCIPALLY TO STATEMENTS OR REPRESENTATIONS MADE BY AN
ASSIGNING LENDER TO SUCH ASSIGNEE THAT WERE NOT BASED UPON INFORMATION SUPPLIED
BY THE BORROWER.
(C)
REIMBURSEMENT BY LENDERS. TO THE EXTENT THAT BORROWER FAILS TO PAY
ANY AMOUNT REQUIRED UNDER PARAGRAPH (A) OR (B) OF THIS SECTION TO BE PAID BY IT
TO THE AGENTS (OR ANY SUB-AGENT THEREOF) OR ANY RELATED PARTY OF ANY OF THE
FOREGOING, EACH LENDER SEVERALLY AGREES TO PAY TO THE AGENTS (OR ANY SUCH
SUB-AGENT) OR SUCH RELATED PARTY, AS THE CASE MAY BE, SUCH LENDER'S APPLICABLE
PERCENTAGE
88
(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 AGENTS (OR ANY SUCH SUB-AGENT)
OR AGAINST ANY RELATED PARTY OF ANY OF THE FOREGOING ACTING FOR THE AGENTS (OR
ANY SUCH SUB-AGENT). THE OBLIGATIONS OF THE LENDERS UNDER THIS PARAGRAPH (C) ARE
SUBJECT TO THE PROVISIONS OF SECTION 10.11.
(D)
WAIVER OF CONSEQUENTIAL DAMAGES, ETC. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, BORROWER SHALL NOT ASSERT, AND HEREBY WAIVES, ANY
CLAIM AGAINST ANY INDEMNITEE, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES)
ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS AGREEMENT, ANY OTHER
LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR THE USE OF THE PROCEEDS
THEREOF. NO INDEMNITEE REFERRED TO