(INCLUDING, WITHOUT LIMITATION, ALL DOCUMENTARY OR OTHER STAMP
TAXES OR DUTIES), LIABILITIES AND DAMAGES, AND EXPENSES IN CONNECTION THEREWITH,
BUT EXCLUDING ANY ACTION, SUITS, LOSSES, COSTS, LIABILITIES AND DAMAGES, AND
EXPENSES ARISING FROM THE BANKS' OR ANY HOLDER OF A NOTE'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT (IRRESPECTIVE OF WHETHER SUCH BANK PARTY IS A PARTY TO THE
ACTION FOR WHICH INDEMNIFICATION HEREUNDER IS SOUGHT) (THE "INDEMNIFIED
LIABILITIES"), INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND
DISBURSEMENTS, INCURRED BY THE BANK PARTIES OR ANY OF THEM AS A RESULT OF, OR
ARISING OUT OF, OR RELATING TO:
(A)
ANY TRANSACTION FINANCED OR TO BE FINANCED
IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, WITH THE PROCEEDS OF THE LOANS;
33
(B)
THE EXECUTION, DELIVERY, PERFORMANCE,
ADMINISTRATION OR ENFORCEMENT OF THIS AGREEMENT AND THE RELATED DOCUMENTS IN
ACCORDANCE WITH THEIR RESPECTIVE TERMS BY ANY OF THE BANK PARTIES, PROVIDED THAT
NOTHING CONTAINED IN THIS CLAUSE (B) SHALL REQUIRE THE BORROWER TO INDEMNIFY,
EXONERATE OR HOLD HARMLESS ANY OF THE BANK PARTIES WITH RESPECT TO ANY ACT OR
FAILURE TO ACT BY SUCH BANK PARTY IN BREACH OF THE UNDERTAKINGS OF THE BANK
UNDER THIS AGREEMENT AND THE RELATED DOCUMENTS;
(C)
THE PRESENCE (PRIOR TO THE DATE THAT THE
BANK ACQUIRES POSSESSION OF THE COLLATERAL) ON OR UNDER THE COLLATERAL OF ANY
HAZARDOUS MATERIAL OR UNDERGROUND STORAGE TANK, OR ANY RELEASES OR DISCHARGES OF
ANY HAZARDOUS MATERIAL (PRIOR TO THE DATE THAT THE BANK ACQUIRES POSSESSION OF
THE COLLATERAL), ON, UNDER OR FROM THE COLLATERAL (INCLUDING RESIDUAL
CONTAMINATION THEREON OR THEREUNDER), OR AFFECTING NATURAL RESOURCES; OR THE
PERFORMANCE OF ANY ACTIVITY UNDERTAKEN ON OR OFF THE COLLATERAL (PRIOR TO THE
DATE THAT THE BANK ACQUIRES POSSESSION OF THE COLLATERAL) OR RELATING TO THE
GENERATION, USE, HANDLING, TREATMENT, REMOVAL, STORAGE, DECONTAMINATION, CLEAN
UP, TRANSPORT OR DISPOSAL OF ANY HAZARDOUS MATERIAL LOCATED ON OR UNDER THE
COLLATERAL (PRIOR TO THE DATE THAT THE BANK ACQUIRES POSSESSION OF THE
COLLATERAL), IRRESPECTIVE WHETHER (I) THE BORROWER OR ANY OF ITS EMPLOYEES,
AGENTS, CONTRACTORS OR SUBCONTRACTORS, (II) ANY PREDECESSOR IN TITLE, OR ANY
EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS OF THE PREDECESSOR IN TITLE, OR
(III) ANY THIRD PERSONS OCCUPYING OR PRESENT ON THE COLLATERAL WHO ENGAGED IN
SUCH ACTIVITY PRIOR TO, DURING OR SUBSEQUENT TO THE TERM OF THIS AGREEMENT OR
WHETHER SUCH ACTIVITIES WERE OR WILL BE TAKEN IN ACCORDANCE WITH APPLICABLE
LAWS, REGULATIONS, CODES AND ORDINANCES, EXCEPT FOR ANY SUCH INDEMNIFIED
LIABILITIES ARISING SOLELY ON ACCOUNT OF SUCH BANK PARTY'S GROSS NEGLIGENCE,
WILLFUL MISCONDUCT, OR NEGLIGENCE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE;
OR
(D)
ANY MISREPRESENTATION IN THIS AGREEMENT OR
IN ANY RELATED DOCUMENT OR IN ANY STATEMENT OR WRITING CONTEMPLATED BY OR MADE
OR DELIVERED PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT OR ANY RELATED
DOCUMENT OR ANY BREACH OF ANY WARRANTY OR COVENANT HEREIN OR IN ANY RELATED
DOCUMENT
If and to the extent that the foregoing agreements described in this
Section 11.7 may be unenforceable for any reason, the Borrower hereby agrees