WAIVER OR CONSENT
WILL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE PURPOSE FOR WHICH
GIVEN. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE MAKING OF AN
ADVANCE WILL NOT BE CONSTRUED AS A WAIVER OF ANY DEFAULT OR EVENT OF DEFAULT,
REGARDLESS OF WHETHER LENDER HAD NOTICE OR KNOWLEDGE OF SUCH DEFAULT OR EVENT OF
DEFAULT AT THE TIME.
(B)
NO AMENDMENT OR WAIVER OF ANY PROVISION OF THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, NOR CONSENT TO ANY DEPARTURE BY BORROWER THEREFROM, WILL IN
ANY EVENT BE EFFECTIVE UNLESS THE SAME IS IN WRITING AND SIGNED BY BORROWER AND
LENDER AND THEN SUCH WAIVER OR CONSENT WILL BE EFFECTIVE ONLY IN THE SPECIFIC
INSTANCE AND FOR THE SPECIFIC PURPOSE FOR WHICH GIVEN.
Section 8.03
Expenses; Indemnification.
(A)
BORROWER INDEMNIFIES LENDER AND EACH PARTICIPANT AGAINST, AND
HOLDS LENDER AND EACH PARTICIPANT HARMLESS FROM, ANY AND ALL COSTS, LOSSES,
LIABILITIES, CLAIMS, DAMAGES AND RELATED EXPENSES, INCLUDING THE FEES, CHARGES
AND DISBURSEMENTS OF ANY ENGINEERS, CONSULTANTS, AGENTS AND COUNSEL FOR LENDER
AND/OR ANY PARTICIPANT, WHICH ARE INCURRED BY OR ASSERTED AGAINST LENDER AND/OR
ANY PARTICIPANT ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT OF (1) THE
EXECUTION, DELIVERY AND DOCUMENTATION OF THE CONDITIONAL COMMITMENT LETTER DATED
MAY 21, 2007, THE FEE LETTER DATED MAY 21, 2007, THIS MASTER AGREEMENT, ANY
SUPPLEMENT, ANY OTHER LOAN DOCUMENT, OR ANY OTHER AGREEMENT OR INSTRUMENT
CONTEMPLATED HEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE
OBLIGATIONS HEREUNDER OR THE CONSUMMATION OF ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, (2) ANY ADVANCES OR ANY ACTUAL OR PROPOSED USE
OF THE PROCEEDS THEREFROM, (3) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF
HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED BY BORROWER OR ANY SUBSIDIARY,
OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO BORROWER OR ANY SUBSIDIARY,
OR (4) 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 LENDER IS A PARTY THERETO, INCLUDING ATTORNEYS'
FEES AND ALL OTHER COSTS AND FEES (I) INCURRED BEFORE OR AFTER
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COMMENCEMENT OF LITIGATION OR AT TRIAL, ON APPEAL OR IN ANY OTHER PROCEEDING,
AND (II) INCURRED IN ANY BANKRUPTCY PROCEEDING; PROVIDED, THAT BORROWER IS NOT
OBLIGATED TO INDEMNIFY LENDER OR ANY PARTICIPANT FOR ANY OF THE FOREGOING
ARISING OUT OF LENDER'S OR SUCH PARTICIPANT'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND
NONAPPEALABLE JUDGMENT.
(B)
BORROWER WILL PAY, AND HOLD LENDER AND EACH PARTICIPANT HARMLESS
FROM AND AGAINST, ANY AND ALL TAXES WITH RESPECT TO THIS AGREEMENT AND ANY OTHER
LOAN DOCUMENT, ANY COLLATERAL DESCRIBED THEREIN, OR ANY PAYMENTS DUE THEREUNDER,
AND WILL SAVE LENDER AND EACH PARTICIPANT HARMLESS FROM AND AGAINST ANY AND ALL
LIABILITIES WITH RESPECT TO OR RESULTING FROM ANY DELAY OR OMISSION TO PAY SUCH
TAXES.
(C)
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER WILL NOT
ASSERT, AND BORROWER