UNDER COMMON COUNSEL), IN CONNECTION WITH THE ENFORCEMENT OR
PROTECTION OF ITS RIGHTS IN CONNECTION WITH THIS AGREEMENT, INCLUDING ITS RIGHTS
UNDER THIS SECTION, OR IN CONNECTION WITH THE LOANS MADE HEREUNDER, INCLUDING IN
CONNECTION WITH ANY WORKOUT, RESTRUCTURING OR NEGOTIATIONS IN RESPECT THEREOF.
(B)
BORROWER SHALL INDEMNIFY THE ADMINISTRATIVE AGENT, THE COLLATERAL
TRUSTEE 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, LIABILITIES AND
RELATED EXPENSES, INCLUDING THE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL
FOR ANY INDEMNITEE (BUT EXCLUDING TAXES, IT BEING UNDERSTOOD AND AGREED THAT
SECTION 2.11 HEREOF SETS FORTH BORROWER'S INDEMNITY OBLIGATIONS WITH RESPECT TO
TAXES), INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN
CONNECTION WITH, OR AS A RESULT OF (I) THE EXECUTION OR DELIVERY OF THIS
AGREEMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE PERFORMANCE BY
THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THE CONSUMMATION
OF THIS AGREEMENT OR ANY OTHER TRANSACTIONS CONTEMPLATED HEREBY, (II) ANY LOAN
OR THE USE OF THE PROCEEDS THEREFROM, (III) THE FAILURE OF THE ADMINISTRATIVE
AGENT OTHER THAN TO THE EXTENT SOLELY AS A RESULT OF THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE ADMINISTRATIVE AGENT (AS FINALLY DETERMINED BY A COURT
OF COMPETENT JURISDICTION), (IV) 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 (V) ANY ACTUAL OR PROSPECTIVE 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; 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 SUCH INDEMNITEE.
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(C)
TO THE EXTENT THAT BORROWER FAILS TO PAY ANY AMOUNT REQUIRED TO BE
PAID BY IT TO THE ADMINISTRATIVE AGENT, THE COLLATERAL TRUSTEE UNDER PARAGRAPH
(A) OR (B) OF THIS SECTION, EACH LENDER SEVERALLY AGREES TO PAY TO THE
ADMINISTRATIVE AGENT OR THE COLLATERAL TRUSTEE, SUCH LENDER'S APPLICABLE
PERCENTAGE (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 OR THE COLLATERAL TRUSTEE, IN ITS CAPACITY AS SUCH.
(D)
TO THE 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)