ANY, THE AGENT OR ANY BANK MAY
THEN PERFORM OR ATTEMPT TO PERFORM SUCH COVENANT OR AGREEMENT ON BEHALF OF SUCH
BORROWER.
SUCH PERSON WILL ENDEAVOR TO GIVE SUCH BORROWER NOTICE OF SUCH
PERFORMANCE OR ATTEMPTED PERFORMANCE.
SUCH BORROWER SHALL, AT THE REQUEST OF
SUCH PERSON, PROMPTLY PAY ANY AMOUNT EXPENDED IN SUCH PERFORMANCE OR ATTEMPTED
PERFORMANCE TO SUCH PERSON AT THE PRINCIPAL OFFICE OF THE AGENT, TOGETHER WITH
INTEREST ON THE PORTION THEREOF FROM TIME TO TIME REMAINING UNPAID AT THE
DEFAULT RATE.
NOTWITHSTANDING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND
AGREED THAT (I) NEITHER THE AGENT NOR ANY BANK ASSUMES ANY LIABILITY OR
RESPONSIBILITY FOR THE PERFORMANCE OF ANY COVENANTS OR AGREEMENTS OF ANY
BORROWER HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS, OR ANY OTHER
DOCUMENTS, OR OTHER CONTROL OVER THE MANAGEMENT AND AFFAIRS OF ANY BORROWER; AND
(II) SUCH BORROWER'S FAILURE TO PERFORM ANY COVENANT OR AGREEMENT THAT IS CURED,
IN WHOLE OR PART, BY ANY OF THEIR ACTION SHALL BE AND CONTINUE A DEFAULT UNLESS
AND UNTIL (A) ALL OF SUCH PERSON'S ATTENDANT COSTS AND EXPENSES HAVE BEEN
REIMBURSED AS HEREIN PROVIDED; AND (B) SUCH BORROWER HAS SUBMITTED, AND THE
AGENT HAS RECEIVED AND APPROVED WITH THE CONSENT OF THE REQUIRED BANKS, SUCH
OBJECTIVE EVIDENCE THAT SUPPORTS THE DETERMINATION THAT SUCH DEFAULT WILL NOT
REOCCUR.
(C)
EACH BORROWER ACKNOWLEDGES AND AGREES THAT ALL ATTORNEYS,
ACCOUNTANTS, AUDITORS, AND OTHER PROFESSIONAL PERSONS AND CONSULTANTS WHO ARE
FROM TIME TO TIME ENGAGED OR EMPLOYED BY THE AGENT (INCLUDING, WITHOUT
LIMITATION, COX & SMITH INCORPORATED) OR BY ANY BANK (INCLUDING, WITHOUT
LIMITATION, MAYER, BROWN, ROWE & MAW, LLP ENGAGED BY HARRIS) AND WHOSE FEES AND
EXPENSES ARE OR MAY BE PAID OR REIMBURSED, AS APPLICABLE, BY BORROWERS, PURSUANT
TO THE TERMS OF ANY LOAN DOCUMENT, ARE THE PROFESSIONALS OF THE AGENT OR SUCH
BANK, RESPECTIVELY, AND NOT OF ANY BORROWER, AND EACH OF THEM (I) SHALL HAVE THE
RIGHT TO ACT EXCLUSIVELY IN THE INTEREST OF THE AGENT OR SUCH BANK,
RESPECTIVELY; AND (II) SHALL HAVE NO DUTY OF DISCLOSURE, DUTY OF LOYALTY, DUTY
OF CARE OR ANY OTHER DUTY OF ANY TYPE OR NATURE WHATSOEVER, OR DEEMED TO HAVE
ANY ATTORNEY-CLIENT OR OTHER SIMILAR PROFESSIONAL RELATIONSHIP WHATSOEVER, TO
ANY BORROWER.
SECTION 10.4
INDEMNIFICATION.
SUBJECT TO SECTION 10.8, EACH BORROWER
SHALL INDEMNIFY, DEFEND, PROTECT AND HOLD HARMLESS EACH BANK AND THE AGENT, AND
THEIR RESPECTIVE AFFILIATES, SUBSIDIARIES, PARENT COMPANIES AND OTHER RELATED
ENTITIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS
AND OTHER PROFESSIONALS AND CONSULTANTS, INSURERS AND STOCKHOLDERS, AND EACH OF
THEM (AND TOGETHER WITH EACH AND ALL OF THEIR RESPECTIVE SUCCESSORS, ASSIGNS,
HEIRS AND LEGAL REPRESENTATIVES, THE "INDEMNIFIED PARTIES") FROM AND AGAINST
LIABILITIES, OBLIGATIONS, LOSSES, CLAIMS, ACTIONS, SUITS AND OTHER LEGAL
PROCEEDINGS, JUDGMENTS, PENALTIES, DAMAGES, COSTS,
47
INTEREST, CHARGES, ATTORNEYS' AND OTHER PROFESSIONALS' AND CONSULTANTS' FEES AND
OTHER EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER ("INDEMNIFIED
COSTS"), WHICH MAY BE IMPOSED ON, INCURRED OR SUSTAINED BY, OR ASSERTED AGAINST,
THE INDEMNIFIED PARTIES, OR