PROJECT OR ANY
PROPERTY OWNED, LEASED OR OPERATED BY THE BORROWER, OR ANY LIABILITY OR COSTS
PURSUANT TO AN ENVIRONMENTAL LAW RELATED IN ANY WAY TO THE PROJECT, THE SITES OR
THE BORROWER;
(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, THE GP
PLEDGOR OR ANY OF ITS SHAREHOLDERS, DIRECTORS OR CREDITORS, THE BORROWER OR ANY
OF ITS PARTNERS OR CREDITORS, AND IN EACH CASE REGARDLESS OF WHETHER ANY
INDEMNITEE IS A PARTY THERETO AND WHETHER OR NOT ANY OF THE TRANSACTIONS
CONTEMPLATED HEREUNDER OR UNDER ANY OF THE OTHER FINANCING DOCUMENTS IS
CONSUMMATED, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN
PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE;
AND/OR
(V)
ANY CLAIM, DEMAND OR LIABILITY FOR BROKER'S OR
FINDER'S OR PLACEMENT FEES OR SIMILAR COMMISSIONS, WHETHER OR NOT PAYABLE BY THE
BORROWER, ALLEGED TO HAVE BEEN INCURRED IN CONNECTION WITH SUCH TRANSACTIONS,
OTHER THAN ANY BROKER'S OR FINDER'S FEES PAYABLE TO PERSONS ENGAGED BY THE
LENDERS OR THE AGENTS WITHOUT THE KNOWLEDGE OF THE BORROWER;
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 Non-Appealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
115
(B)
TO THE EXTENT THAT THE BORROWER FOR ANY REASON FAILS TO INDEFEASIBLY
PAY ANY AMOUNT REQUIRED UNDER SECTION 10.08(A) TO BE PAID BY IT TO ANY AGENT (OR
ANY SUB-AGENT THEREOF) OR ANY RELATED PARTY OF ANY OF THE FOREGOING, EACH LENDER
SEVERALLY AGREES TO PAY TO SUCH AGENT (OR ANY SUCH SUB-AGENT), OR SUCH RELATED
PARTY, AS THE CASE MAY BE, SUCH LENDER'S RATABLE SHARE (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 SUCH AGENT (OR ANY SUB-AGENT THEREOF) IN ITS CAPACITY AS
SUCH, OR AGAINST ANY RELATED PARTY OF ANY OF THE FOREGOING ACTING FOR SUCH AGENT
(OR ANY SUB-AGENT THEREOF) IN CONNECTION WITH SUCH CAPACITY. THE OBLIGATIONS OF
THE LENDERS TO MAKE PAYMENTS PURSUANT TO THIS SECTION 10.08(B) ARE SEVERAL AND
NOT JOINT AND SHALL SURVIVE THE PAYMENT IN FULL OF THE OBLIGATIONS AND THE
TERMINATION OF THIS AGREEMENT. THE FAILURE OF ANY LENDER TO MAKE PAYMENTS ON ANY
DATE REQUIRED HEREUNDER SHALL NOT RELIEVE ANY OTHER LENDER OF ITS CORRESPONDING
OBLIGATION TO DO SO ON SUCH DATE, AND NO LENDER SHALL BE RESPONSIBLE FOR THE
FAILURE OF ANY OTHER LENDER TO DO SO. THE LENDERS AGREE AND ACKNOWLEDGE THAT THE
ACCOUNTS BANK IS AN INTENDED THIRD PARTY BENEFICIARY OF THIS SECTION 10.08(B).
(C)
EXCEPT AS OTHERWISE PROVIDED