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 BORROWER, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY
THERETO, PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE
AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR
RELATED EXPENSES (X) ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY
FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR (Y) RESULT FROM A CLAIM BROUGHT BY
BORROWER AGAINST AN INDEMNITEE FOR BREACH IN BAD FAITH OF SUCH INDEMNITEE'S
OBLIGATIONS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, IF BORROWER OR
INDEMNITOR HAS OBTAINED A FINAL AND NONAPPEALABLE JUDGMENT IN ITS FAVOR ON SUCH
CLAIM AS DETERMINED BY A COURT OF COMPETENT JURISDICTION.
(C)
THE OBLIGATIONS ON THE PART OF BORROWER UNDER THIS SECTION 7.6
SHALL SURVIVE THE CLOSING OF THE LOAN AND THE REPAYMENT THEREOF.
8.7
NO THIRD PARTY RELIANCE.
NO THIRD PARTY SHALL BE ENTITLED TO RELY
UPON THIS AGREEMENT OR TO HAVE ANY OF THE BENEFITS OF LENDER'S INTEREST
HEREUNDER, UNLESS SUCH THIRD PARTY IS AN EXPRESS ASSIGNEE OF ALL OR A PORTION OF
LENDER'S INTEREST HEREUNDER.
8.8
SALE OF LOAN OR PARTICIPATIONS.
LENDER MAY AT ANY TIME SELL,
TRANSFER, SYNDICATE, GRANT PARTICIPATIONS IN OR OTHERWISE DISPOSE OF ANY PORTION
OF THE LOAN (EACH SUCH INTEREST SO
22
DISPOSED OF BEING HEREIN CALLED A "TRANSFERRED INTEREST") TO BANKS, INSURANCE
COMPANIES OR OTHER FINANCIAL INSTITUTIONS (HEREINAFTER CALLED "TRANSFEREES"),
PURSUANT TO SUCH TRANSFER AGREEMENTS, CO-LENDER AGREEMENTS, PARTICIPATIONS
AGREEMENTS AND/OR AGENCY AGREEMENTS INTO WHICH LENDER AND ITS TRANSFEREES MAY
ENTER AND BY WHICH BORROWER SHALL AGREE IN WRITING TO RECOGNIZE.
IN ADDITION,
LENDER MAY, AT ANY TIME AND FROM TIME TO TIME, IN ITS ORDINARY COURSE OF
BUSINESS AND IN ACCORDANCE WITH APPLICABLE LAW, (I) ASSIGN AN UNDIVIDED INTEREST
IN THE LOAN TO AN AFFILIATE OF LENDER OR TO A SUCCESSOR ENTITY BY REASON OF ANY
MERGER AFFECTING LENDER, OR (II) PLEDGE OR ASSIGN THE SAME TO ANY FEDERAL
RESERVE BANK IN ACCORDANCE WITH APPLICABLE LAW.
AT THE REQUEST OF LENDER, IN
THE EVENT OF ANY SUCH SALE, ASSIGNMENT, TRANSFER OR SYNDICATION, BORROWER SHALL
EXECUTE SEPARATE NEW NOTES TO THE ASSIGNOR AND ITS ASSIGNEE, IN THE AMOUNTS OF
THEIR RESPECTIVE INTERESTS IN THE LOAN AFTER SAID ASSIGNMENT, AND SHALL DELIVER
THE SAME TO THE ASSIGNOR AND THE ASSIGNEE, IN EXCHANGE FOR THE ASSIGNOR'S
EXISTING NOTE.
ALL SUCH SEPARATE NEW NOTES SHALL BE ENTITLED TO ALL THE RIGHTS
AND BENEFITS ACCORDED TO THE NOTE UNDER THE TERMS OF THE LOAN DOCUMENTS.
NO
SUCH ASSIGNMENT SHALL BE BINDING UPON BORROWER UNTIL LENDER GIVES WRITTEN NOTICE
THEREOF TO BORROWER.
LENDER MAY DIVULGE ALL INFORMATION RELATING TO BORROWER OR
THE PROPERTY WHICH LENDER HAS TO ANY ACTUAL OR POTENTIAL TRANSFEREE, AND
BORROWER SHALL COOPERATE WITH LENDER IN CONNECTION WITH THE TRANSFER.
BORROWER
AGREES THAT EACH TRANSFEREE SHALL BE ENTITLED TO