A FINAL JUDGMENT OF A COURT OF COMPETENT
JURISDICTION.
AS USED HEREIN, "INDEMNIFIED LIABILITIES" MEANS, COLLECTIVELY,
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES (INCLUDING NATURAL
RESOURCE DAMAGES), PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS (INCLUDING
ENVIRONMENTAL CLAIMS), COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE
WHATSOEVER (INCLUDING THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL FOR
INDEMNITEES IN CONNECTION WITH ANY INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL
PROCEEDING COMMENCED OR THREATENED BY THE BORROWER OR ANY OTHER PERSON, WHETHER
OR NOT ANY SUCH INDEMNITEE SHALL BE DESIGNATED AS A PARTY OR A POTENTIAL PARTY
THERETO, AND ANY FEES OR EXPENSES INCURRED BY INDEMNITEES IN ENFORCING THIS
INDEMNITY), WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL AND WHETHER BASED ON ANY
FEDERAL, STATE OR FOREIGN LAWS, STATUTES, RULES OR REGULATIONS (INCLUDING
SECURITIES AND COMMERCIAL LAWS, STATUTES, RULES OR REGULATIONS AND ENVIRONMENTAL
LAWS), ON COMMON LAW OR EQUITABLE CAUSE OR ON CONTRACT OR OTHERWISE, THAT MAY BE
IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST ANY SUCH INDEMNITEE, IN ANY MANNER
RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (INCLUDING THE LENDERS' AGREEMENTS
TO MAKE THE LOANS HEREUNDER OR THE USE OR INTENDED USE OF THE PROCEEDS THEREOF,
OR ANY ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS).
B.
TO THE EXTENT THAT THE UNDERTAKINGS TO
DEFEND, INDEMNIFY, PAY AND HOLD HARMLESS SET FORTH IN THIS SECTION 8.3 MAY BE
UNENFORCEABLE IN WHOLE OR IN PART BECAUSE THEY ARE VIOLATIVE OF ANY LAW OR
PUBLIC POLICY, THE BORROWER SHALL CONTRIBUTE THE MAXIMUM PORTION THAT IT IS
PERMITTED TO PAY AND SATISFY UNDER APPLICABLE LAW TO THE PAYMENT AND
SATISFACTION OF ALL INDEMNIFIED LIABILITIES INCURRED BY INDEMNITEES OR ANY OF
THEM.
C.
TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE BORROWER AND EACH OF ITS SUBSIDIARIES SHALL NOT ASSERT, AND EACH HEREBY
WAIVES, ANY CLAIM AGAINST THE LENDERS, THE AGENTS, THE LEAD ARRANGERS AND THEIR
RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS, ON
ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) (WHETHER OR NOT THE CLAIM
THEREFOR IS BASED ON CONTRACT, TORT OR DUTY IMPOSED BY ANY APPLICABLE LEGAL
REQUIREMENT) ARISING OUT OF, IN CONNECTION WITH, ARISING OUT OF, AS A RESULT OF,
OR IN ANY WAY RELATED TO, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY OR REFERRED TO HEREIN OR
THEREIN, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR THE USE OF
THE PROCEEDS THEREOF OR ANY ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION
THEREWITH, AND THE BORROWER AND EACH OF ITS SUBSIDIARIES HEREBY WAIVES, RELEASES
AND AGREES NOT TO SUE UPON ANY SUCH CLAIM OR ANY SUCH DAMAGES, WHETHER OR NOT
ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
8.4
Set-Off.
In addition to any rights now or hereafter granted under applicable law and not
by way of limitation of any such rights, upon the occurrence and during the
continuance of