BY THE RELEVANT GOVERNMENTAL BODY)
TO THE ADMINISTRATIVE AGENT OR SUCH LENDER IN THE EVENT ADMINISTRATIVE AGENT OR
SUCH LENDER IS REQUIRED TO REPAY SUCH REFUND TO SUCH GOVERNMENTAL AUTHORITY.
THIS PARAGRAPH SHALL NOT BE CONSTRUED TO REQUIRE ADMINISTRATIVE AGENT OR ANY
LENDER TO MAKE AVAILABLE ITS TAX RETURNS (OR ANY OTHER INFORMATION RELATING TO
ITS TAXES THAT IT DEEMS CONFIDENTIAL) TO THE BORROWER OR ANY OTHER PERSON.
(F)
INDEMNIFICATION BY THE BORROWER.
THE
BORROWER SHALL INDEMNIFY ADMINISTRATIVE AGENT AND EACH LENDER FOR ANY TAX
REFERRED TO IN SECTION 7.2(A) (OTHER THAN A TAX ON THE OVERALL INCOME OF
ADMINISTRATIVE AGENT AND LENDER OR A TAX REFERRED TO IN THE PROVISO TO
SECTION 7.2(A)) PAID BY ADMINISTRATIVE AGENT OR SUCH
LENDER AND ANY PENALTIES,
INTEREST AND REASONABLE EXPENSES ARISING THEREFROM OR WITH RESPECT THERETO.
SECTION 7.3.
INDEMNIFICATION.
(A)
INDEMNIFICATION BY THE CREDIT PARTIES.
THE
CREDIT PARTIES WILL INDEMNIFY AND DEFEND ADMINISTRATIVE AGENT, THE LENDERS AND
EACH OF THEIR RESPECTIVE SHAREHOLDERS, PARTNERS, MEMBERS, MANAGERS, DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS AND AFFILIATES (COLLECTIVELY, THE
"INDEMNIFIED PERSONS") AGAINST AND HOLD EACH INDEMNIFIED PERSON HARMLESS FROM
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, COSTS, EXPENSES, CLAIMS,
PENALTIES, ACTIONS, JUDGMENTS, DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER,
INTEREST, FINES, CLEANUP COSTS, SETTLEMENTS, COSTS OF PREPARATION AND
INVESTIGATION, COSTS INCURRED IN ENFORCING THIS INDEMNITY AND REASONABLE AND
REASONABLY DOCUMENTED ATTORNEYS' FEES AND EXPENSES (COLLECTIVELY, "LOSSES"),
70
THAT ANY OF THE INDEMNIFIED PERSONS MAY INCUR, SUFFER, SUSTAIN OR BECOME SUBJECT
TO ARISING OUT OF, RELATING TO, OR DUE TO (I) THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,
(II) ANY MATERIAL
INACCURACY OR BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES OF ANY CREDIT
PARTY CONTAINED IN ANY CREDIT
DOCUMENT OR IN ANY CERTIFICATE DELIVERED
THEREUNDER, (III) THE NON-FULFILLMENT OR BREACH OF ANY COVENANT, UNDERTAKING,
AGREEMENT OR OTHER OBLIGATION OF ANY CREDIT PARTY CONTAINED IN ANY LOAN DOCUMENT
OR IN ANY CERTIFICATE DELIVERED THEREUNDER, (IV) ANY ENVIRONMENTAL LIABILITY,
AND/OR (V) ANY USE OF PROCEEDS OF ANY TERM LOAN; PROVIDED THAT SUCH INDEMNITY
SHALL NOT, AS TO ANY INDEMNIFIED PERSON, BE AVAILABLE TO THE EXTENT SUCH LOSSES
ARISE OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS DETERMINED BY A
COURT OF COMPETENT JURISDICTION IN A FINAL, NON-APPEALABLE ORDER, OF SUCH
INDEMNIFIED PERSON.
UPON REQUEST OF AN INDEMNIFIED PERSON, THE BORROWER SHALL
RETAIN COUNSEL REASONABLY SATISFACTORY TO THE INDEMNIFIED PERSON TO REPRESENT
THE INDEMNIFIED PERSON(S) IN CONNECTION WITH ANY LOSSES OR THREATENED LOSSES AND
SHALL PAY THE REASONABLE AND REASONABLY DOCUMENTED FEES AND DISBURSEMENTS OF
SUCH COUNSEL.
EACH INDEMNIFIED PERSON SHALL HAVE THE RIGHT TO EMPLOY ITS OWN
COUNSEL AT THE EXPENSE OF THE BORROWER IF (I) THE EMPLOYMENT OF COUNSEL BY THE
INDEMNIFIED PERSON AT THE EXPENSE OF THE BORROWER HAS BEEN AUTHORIZED IN WRITING
BY THE BORROWER, (II) THE BORROWER HAS NOT EMPLOYED COUNSEL TO REPRESENT THE
INDEMNIFIED PERSON WITHIN A REASONABLE TIME AFTER RECEIVING NOTICE OF A REQUEST
FOR THE RETENTION OF COUNSEL OR (III) BOTH THE INDEMNIFIED