GROWING OUT OF, RESULTING FROM OR IN ANY
OTHER WAY ASSOCIATED WITH ANY OF THE COLLATERAL, THE LOAN DOCUMENTS AND THE
TRANSACTIONS AND EVENTS (INCLUDING THE ENFORCEMENT THEREOF) AT ANY TIME
ASSOCIATED THEREWITH OR CONTEMPLATED THEREIN (WHETHER ARISING IN CONTRACT OR IN
TORT AND OTHERWISE AND INCLUDING ANY VIOLATION OR NONCOMPLIANCE WITH ANY
ENVIRONMENTAL LAWS BY ANY PERSON OR ANY LIABILITIES OR DUTIES OF ANY PERSON WITH
RESPECT TO HAZARDOUS MATERIALS FOUND IN OR RELEASED INTO THE ENVIRONMENT).
THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND
COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM
OR THEORY OF STRICT LIABILITY, OR ARE CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND BY AGENT,
provided only that no Lender shall be obligated under this section to indemnify
Agent for that portion, if any, of any liabilities and costs which is
proximately caused by Agent's own individual gross negligence or willful
misconduct, as determined in a final judgment.
Cumulative of the foregoing,
each Lender agrees to reimburse Agent promptly upon demand for such Lender's
Percentage Share of any costs and expenses to be paid to Agent by Borrower under
Section 10.4(a) to the extent that Agent is not timely reimbursed for such
expenses by Borrower as provided in such section.
As used in this section the
term "Agent" shall refer not only to the Person designated as such in
Section 1.1 but also to each director, officer, Agent, attorney, employee,
representative and Affiliate of such Person.
SECTION 9.5.
RIGHTS AS LENDER.
IN ITS
CAPACITY AS A LENDER, AGENT SHALL HAVE THE SAME RIGHTS AND OBLIGATIONS AS ANY
LENDER AND MAY EXERCISE SUCH RIGHTS AS THOUGH IT WERE NOT AGENT.
AGENT MAY
ACCEPT DEPOSITS FROM, LEND MONEY TO, ACT AS TRUSTEE UNDER INDENTURES OF, AND
GENERALLY ENGAGE IN ANY KIND OF BUSINESS WITH ANY RESTRICTED PERSON OR THEIR
AFFILIATES, ALL AS IF IT WERE NOT AGENT HEREUNDER AND WITHOUT ANY DUTY TO
ACCOUNT THEREFOR TO ANY OTHER LENDER.
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SECTION 9.6.
SHARING OF SET-OFFS AND OTHER
PAYMENTS.
EACH LENDER PARTY AGREES THAT IF IT SHALL, WHETHER THROUGH THE
EXERCISE OF RIGHTS UNDER SECURITY DOCUMENTS OR RIGHTS OF BANKER'S LIEN, SET OFF,
OR COUNTERCLAIM AGAINST BORROWER OR OTHERWISE, OBTAIN PAYMENT OF A PORTION OF
THE AGGREGATE OBLIGATIONS OWED TO IT WHICH, TAKING INTO ACCOUNT ALL
DISTRIBUTIONS MADE BY AGENT UNDER SECTION 3.1, CAUSES SUCH LENDER PARTY TO HAVE
RECEIVED MORE THAN IT WOULD HAVE RECEIVED HAD SUCH PAYMENT BEEN RECEIVED BY
AGENT AND DISTRIBUTED PURSUANT TO SECTION 3.1, THEN (A) IT SHALL BE DEEMED TO
HAVE SIMULTANEOUSLY PURCHASED AND SHALL BE OBLIGATED TO PURCHASE INTERESTS IN
THE OBLIGATIONS AS NECESSARY TO CAUSE ALL LENDER PARTIES TO SHARE ALL PAYMENTS
AS PROVIDED FOR IN SECTION 3.1, AND (B) SUCH OTHER ADJUSTMENTS SHALL BE MADE
FROM TIME TO TIME AS SHALL BE EQUITABLE TO ENSURE THAT AGENT AND ALL LENDER
PARTIES SHARE ALL PAYMENTS OF OBLIGATIONS AS