INDEMNITY BY THE BORROWER SET FORTH IN
SECTION 10.11(F) (NOTICES AND OTHER COMMUNICATIONS) AND EXCEPT FOR TAXES (WHICH
ARE ADDRESSED IN SECTION 4.07 (TAXES)), THE BORROWER HEREBY AGREES TO INDEMNIFY
EACH AGENT (AND ANY SUB-AGENT THEREOF), 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 ALL REASONABLE FEES, COSTS
AND EXPENSES OF COUNSEL FOR ANY INDEMNITEE), INCURRED BY ANY INDEMNITEE OR
ASSERTED AGAINST ANY INDEMNITEE BY ANY THIRD PARTY OR BY THE BORROWER ARISING
OUT OF, IN CONNECTION WITH, OR AS A RESULT OF:
(I)
THE EXECUTION OR DELIVERY OF THIS AGREEMENT,
ANY OTHER TRANSACTION DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED
HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OR THERETO OF THEIR
RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY;
(II)
ANY LOAN OR THE USE OR PROPOSED USE OF THE
PROCEEDS THEREFROM;
(III)
ANY ACTUAL OR ALLEGED PRESENCE, RELEASE OR
THREATENED RELEASE OF MATERIALS OF ENVIRONMENTAL CONCERN ON OR FROM THE PROJECT
OR ANY PROPERTY OWNED, LEASED OR OPERATED BY THE BORROWER, OR ANY LIABILITY
PURSUANT TO AN ENVIRONMENTAL LAW RELATED IN ANY WAY TO THE PROJECT, THE SITE 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 OR BY THE
BORROWER OR ANY OF THE BORROWER'S MEMBERS, MANAGERS, OR CREDITORS, AND
REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO AND WHETHER OR NOT ANY
OF THE TRANSACTIONS CONTEMPLATED
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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.
(B)
TO THE EXTENT THAT THE BORROWER FOR
ANY REASON FAILS TO INDEFEASIBLY PAY ANY AMOUNT REQUIRED UNDER
SECTION 11.08(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