with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(B)
THE BORROWER AGREES TO INDEMNIFY AND HOLD HARMLESS THE AGENT, EACH ARRANGER
AND EACH LENDER AND EACH OF THEIR AFFILIATES AND THEIR OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS AND ADVISORS (EACH, AN "INDEMNIFIED PARTY") FROM AND AGAINST
ANY AND ALL LIABILITIES, OBLIGATIONS, CLAIMS, DAMAGES, LOSSES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, COSTS, DISBURSEMENTS AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, REASONABLE FEES AND EXPENSES OF COUNSEL) INCURRED BY OR ASSERTED OR
AWARDED AGAINST ANY INDEMNIFIED PARTY, IN EACH CASE ARISING OUT OF OR IN
CONNECTION WITH OR BY REASON OF (INCLUDING, WITHOUT LIMITATION, IN CONNECTION
WITH ANY INVESTIGATION, LITIGATION OR PROCEEDING OR PREPARATION OF A DEFENSE IN
CONNECTION THEREWITH) (I) THE NOTES, THIS AGREEMENT, ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN OR THE ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE
ADVANCES OR (II) THE ACTUAL OR ALLEGED PRESENCE OF HAZARDOUS MATERIALS ON ANY
PROPERTY OF THE BORROWER OR ANY OF ITS SUBSIDIARIES OR ANY ENVIRONMENTAL ACTION
RELATING IN ANY WAY TO THE BORROWER OR ANY OF ITS SUBSIDIARIES, EXCEPT TO THE
EXTENT SUCH LIABILITY, OBLIGATION, CLAIM, DAMAGE, LOSS, PENALTY, ACTION,
JUDGMENT, SUIT, COST, DISBURSEMENT OR EXPENSE IS FOUND IN A FINAL,
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
FROM SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN EACH
CASE REGARDLESS OF WHETHER THE EVENT GIVING RISE TO SUCH LIABILITY SHALL HAVE
OCCURRED PRIOR TO, ON OR AFTER THE DATE HEREOF.
IN THE CASE OF AN
INVESTIGATION, LITIGATION OR OTHER PROCEEDING TO WHICH THE INDEMNITY IN THIS
SECTION 8.04(B) APPLIES, SUCH INDEMNITY SHALL BE EFFECTIVE WHETHER OR NOT SUCH
INVESTIGATION, LITIGATION OR PROCEEDING IS BROUGHT BY THE BORROWER, ITS
DIRECTORS, EQUITYHOLDERS OR CREDITORS OR AN INDEMNIFIED PARTY OR ANY OTHER
PERSON, WHETHER OR NOT ANY INDEMNIFIED PARTY IS OTHERWISE A PARTY THERETO AND
WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED.
NOTWITHSTANDING ANY OTHER PROVISIONS TO THE CONTRARY HEREIN, NO OBLIGATION TO
INDEMNIFY AND HOLD HARMLESS ANY INDEMNIFIED PARTY UNDER THIS SECTION ARISES FROM
A FAILURE BY SUCH INDEMNIFIED PARTY TO COMPLY WITH ANY LAWS, REGULATIONS, RULES
OR ORDERS THAT MAY APPLY TO ITS BUSINESS, OR A FAILURE BY SUCH INDEMNIFIED PARTY
TO POSSESS THE CAPACITY TO PARTICIPATE IN THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR TO TAKE ALL ACTIONS NECESSARY TO AUTHORIZE ITS PARTICIPATION IN
SUCH TRANSACTIONS.
THE BORROWER ALSO AGREES NOT TO ASSERT ANY CLAIM FOR
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES AGAINST THE AGENT, ANY
LENDER, ANY OF THEIR AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, ATTORNEYS AND AGENTS, ON ANY THEORY OF LIABILITY ARISING OUT OF OR
OTHERWISE RELATING TO THE NOTES, THIS AGREEMENT, ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN OR THE ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE
ADVANCES.
(C)
IF