PAYMENTS DUE
FROM BORROWER UNDER THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR WITH RESPECT TO
THE COLLATERAL OR IN CONNECTION WITH ANY REFINANCING OR RESTRUCTURING OF THE
CREDIT ARRANGEMENTS PROVIDED UNDER THIS AGREEMENT IN THE NATURE OF A "WORKOUT"
OR OF ANY INSOLVENCY OR BANKRUPTCY PROCEEDINGS; PROVIDED, HOWEVER, THAT BORROWER
SHALL NOT BE LIABLE FOR THE PAYMENT OR REIMBURSEMENT OF ANY SUCH COSTS AND
EXPENSES TO THE EXTENT THE SAME ARISE BY REASON OF THE GROSS NEGLIGENCE, ILLEGAL
ACTS, FRAUD OR WILLFUL MISCONDUCT OF LENDER.
(B)
BORROWER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LENDER FROM AND
AGAINST ANY AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND
OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE REASONABLE
OUT-OF-POCKET FEES AND DISBURSEMENTS OF COUNSEL FOR LENDER IN CONNECTION WITH
ANY INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING COMMENCED OR
THREATENED, WHETHER OR NOT LENDER SHALL BE DESIGNATED A PARTY THERETO), THAT MAY
BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST LENDER IN ANY MANNER RELATING TO
OR ARISING OUT OF (I) ANY BREACH BY BORROWER OF ITS OBLIGATIONS UNDER, OR ANY
MATERIAL MISREPRESENTATION BY BORROWER CONTAINED IN, THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS, OR (II) THE USE OR INTENDED USE OF THE PROCEEDS
148
OF THE LOAN (COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"); PROVIDED, HOWEVER,
THAT BORROWER SHALL NOT HAVE ANY OBLIGATION TO LENDER HEREUNDER TO THE EXTENT
THAT SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES OR DISBURSEMENTS, AS THE CASE MAY BE,
ARISE FROM THE GROSS NEGLIGENCE, ILLEGAL ACTS, FRAUD OR WILLFUL MISCONDUCT OF
LENDER. TO THE EXTENT THAT THE UNDERTAKING TO INDEMNIFY, DEFEND AND HOLD
HARMLESS SET FORTH IN THE PRECEDING SENTENCE MAY BE UNENFORCEABLE BECAUSE IT
VIOLATES ANY LAW OR PUBLIC POLICY, BORROWER SHALL PAY THE MAXIMUM PORTION THAT
IT IS PERMITTED TO PAY AND SATISFY UNDER APPLICABLE LAW TO THE PAYMENT AND
SATISFACTION OF ALL INDEMNIFIED LIABILITIES INCURRED BY LENDER.
(C)
BORROWER SHALL, AT ITS SOLE COST AND EXPENSE, PROTECT, DEFEND,
INDEMNIFY, RELEASE AND HOLD HARMLESS LENDER AND THE INDEMNIFIED PARTIES FROM AND
AGAINST ANY AND ALL LOSSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS'
FEES AND COSTS INCURRED IN THE INVESTIGATION, DEFENSE, AND SETTLEMENT OF LOSSES
INCURRED IN CORRECTING ANY PROHIBITED TRANSACTION OR IN THE SALE OF A PROHIBITED
LOAN, AND IN OBTAINING ANY INDIVIDUAL PROHIBITED TRANSACTION EXEMPTION UNDER
ERISA, THE CODE, ANY STATE STATUTE OR OTHER SIMILAR LAW THAT MAY BE REQUIRED, IN
LENDER'S SOLE DISCRETION) THAT LENDER MAY INCUR, DIRECTLY OR INDIRECTLY, AS A
RESULT OF A DEFAULT UNDER SECTIONS 4.1.8 OR 5.2.8 HEREOF.
(D)
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT,
BORROWER COVENANTS AND AGREES TO PAY FOR OR, IF BORROWER FAILS TO PAY, TO
REIMBURSE LENDER FOR ANY CUSTOMARY FEES OR EXPENSES PAYABLE TO ANY RATING AGENCY
IN CONNECTION WITH ANY CONSENT, APPROVAL, WAIVER OR CONFIRMATION OBTAINED FROM
SUCH RATING AGENCY PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT AND LENDER SHALL BE ENTITLED TO