ANY OF THEM, BY REASON OF, ARISING OUT OF, OR IN ANY
MANNER RELATED TO (DIRECTLY OR INDIRECTLY, CONSEQUENTIALLY, OR OTHERWISE), A
BORROWER'S BREACH OF ANY OF THE TERMS AND CONDITIONS OF ANY LOAN DOCUMENT AND/OR
A BORROWER'S NEGLIGENCE.
THE FOREGOING IS INTENDED TO INDEMNIFY, DEFEND,
PROTECT AND HOLD HARMLESS EACH OF THE INDEMNIFIED PARTIES AGAINST ALL RISKS,
FORESEEABLE OR UNFORESEEABLE, ARISING FROM A BORROWER'S BREACH OF THE TERMS AND
CONDITIONS OF ANY LOAN DOCUMENT AND/OR A BORROWER'S NEGLIGENCE, INCLUDING,
WITHOUT LIMITATION, THE NEGLIGENCE OR ALLEGED NEGLIGENCE (WHETHER SOLE,
COMPARATIVE, CONTRIBUTORY OR OTHERWISE) OF ANY OF THE INDEMNIFIED PARTIES,
ARISING OUT OF THEIR EFFORTS OR OMISSIONS TO CURE OR REMEDY A BORROWER'S BREACH
OF THE TERMS AND CONDITIONS OF ANY LOAN DOCUMENT AND/OR A BORROWER'S
NEGLIGENCE.
TO THE EXTENT THAT THE FOREGOING INDEMNIFICATION MAY BE DEEMED
UNENFORCEABLE, IN WHOLE OR IN PART, FOR ANY REASON WHATSOEVER, INCLUDING BECAUSE
IT IS VIOLATIVE OF LAW OR PUBLIC POLICY AS DETERMINED BY A FINAL, NON-APPEALABLE
JUDGMENT OR ORDER OF A COURT OF COMPETENT JURISDICTION, EACH BORROWER AGREES TO
CONTRIBUTE THE MAXIMUM PORTION THAT IT IS NOT PROHIBITED TO PAY UNDER APPLICABLE
LAW, TO THE PAYMENT AND SATISFACTION OF THE "SUBJECT TRANSACTIONS; PROVIDED,
HOWEVER AN INDEMNIFIED PARTY SHALL NOT BE ENTITLED TO INDEMNIFICATION FOR
INDEMNIFIED COSTS TO THE EXTENT SUCH INDEMNIFIED COSTS ARE DIRECTLY CAUSED BY A
BREACH OF ITS MATERIAL OBLIGATIONS UNDER ANY LOAN DOCUMENT OR ITS OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT AS DETERMINED BY A COURT OF COMPETENT
JURISDICTION.
SECTION 10.5
SHARING OF SET-OFFS.
EACH BORROWER HEREBY GRANTS TO AGENT
AND EACH BANK THE RIGHT OF SET-OFF, TO SECURE REPAYMENT OF THE OBLIGATIONS, UPON
ANY AND ALL MONIES, SECURITIES OR OTHER PROPERTY OF SUCH BORROWER AND THE
PROCEEDS THEREFROM, NOW OR HEREAFTER HELD OR RECEIVED BY OR IN TRANSIT TO AGENT
OR ANY BANK OR ANY OF THEIR RESPECTIVE AGENTS, FROM OR FOR THE ACCOUNT OF SUCH
BORROWER, WHETHER FOR SAFEKEEPING, CUSTODY, PLEDGE, TRANSMISSION, COLLECTION OR
OTHERWISE, AND ALSO UPON ANY AND ALL DEPOSITS (GENERAL OR SPECIAL) AND CREDITS
OF SUCH BORROWER, AND ANY AND ALL CLAIMS OF SUCH BORROWER AGAINST AGENT OR ANY
BANK AT ANY TIME EXISTING.
IN CONNECTION WITH ANY SET-OFF, COUNTERCLAIM OR
SIMILAR ACTION BY ANY BANK, SUCH BANK AGREES THAT IT SHALL COMPLY WITH, AND
OTHERWISE BE BOUND BY, THE PROVISIONS OF SECTION 2.13.
EACH BORROWER, THE AGENT
AND EACH BANK AGREE THAT ANY PERSON PURCHASING A PARTICIPATION FROM A BANK
PURSUANT TO SECTION 10.7(B) SHALL, TO THE FULLEST EXTENT PERMITTED BY LAW AND IF
PROVIDED IN THE PARTICIPATION AGREEMENT BETWEEN THE BANK AND THE PARTICIPANT,
HAVE ALL OF THE OBLIGATIONS OF A BANK PURSUANT TO THE TERMS OF THIS SECTION
10.5.
WITHOUT LIMITING ANY BANK'S RIGHT OF SET-OFF OR COUNTERCLAIM OR
OTHERWISE, THE AGENT SHALL HAVE THE RIGHT TO CHARGE ANY ACCOUNT OF ANY BORROWER
48
maintained with Agent for the amount of any payment due under any Loan Document
or under the Notes.
SECTION 10.6
AMENDMENTS AND WAIVERS.
ALL MODIFICATIONS, CONSENTS,
AMENDMENTS, WAIVERS