AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 10.11
SURVIVAL OF AGREEMENT. ALL REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENT MADE BY THE BORROWER HEREIN OR IN THE OTHER LOAN DOCUMENTS AND IN
THE CERTIFICATES OR OTHER INSTRUMENTS PREPARED OR DELIVERED IN CONNECTION WITH
OR PURSUANT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE DEEMED TO HAVE
BEEN RELIED UPON BY THE LENDERS AND SHALL SURVIVE THE MAKING OF THE LOANS BY THE
LENDERS AND THE EXECUTION AND DELIVERY TO THE LENDERS BY THE BORROWER OF THE
NOTES, REGARDLESS OF ANY INVESTIGATION MADE BY OR ON BEHALF OF THE LENDERS, AND
SHALL CONTINUE IN FULL FORCE AND EFFECT AS LONG AS ANY OBLIGATION IS OUTSTANDING
AND UNPAID AND SO LONG AS THE COMMITMENTS HAVE NOT BEEN TERMINATED; PROVIDED,
HOWEVER, THAT THE OBLIGATIONS OF THE BORROWER UNDER SECTIONS 10.2, 10.5 AND
10.12 SHALL SURVIVE PAYMENT IN FULL OF THE OBLIGATIONS AND THE TERMINATION OF
THE COMMITMENTS.
SECTION 10.12
INDEMNIFICATION. THE BORROWER AND EACH OF THE GUARANTORS HEREBY
AGREES TO DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS EACH OF THE SECURED
CREDITORS AND THEIR RESPECTIVE AFFILIATES AND THE DIRECTORS, OFFICERS,
EMPLOYEES, ATTORNEYS AND AGENTS OF EACH OF THE SECURED CREDITORS AND THEIR
RESPECTIVE AFFILIATES (EACH OF THE FOREGOING BEING AN "INDEMNITEE" AND ALL OF
THE FOREGOING BEING COLLECTIVELY THE "INDEMNITEES") FROM AND AGAINST ANY AND ALL
CLAIMS, ACTIONS, DAMAGES, LIABILITIES, JUDGMENTS, COSTS AND EXPENSES (INCLUDING
ALL REASONABLE FEES AND DISBURSEMENTS OF COUNSEL WHICH MAY BE INCURRED IN THE
INVESTIGATION OR DEFENSE OF ANY MATTER) IMPOSED UPON, INCURRED BY OR ASSERTED
AGAINST ANY INDEMNITEE, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL AND WHETHER
BASED ON ANY FEDERAL, STATE, LOCAL OR FOREIGN LAWS OR REGULATIONS (INCLUDING
SECURITIES LAWS, ENVIRONMENTAL LAWS, COMMERCIAL LAWS AND REGULATIONS), UNDER
COMMON LAW OR ON EQUITABLE CAUSE, OR ON CONTRACT OR OTHERWISE:
(A)
BY REASON OF, RELATING TO OR IN CONNECTION
WITH THE EXECUTION, DELIVERY, PERFORMANCE OR ENFORCEMENT OF ANY LOAN DOCUMENT,
ANY COMMITMENTS RELATING THERETO, OR ANY TRANSACTION CONTEMPLATED BY ANY LOAN
DOCUMENT; OR
(B)
BY REASON OF, RELATING TO OR IN CONNECTION
WITH ANY CREDIT EXTENDED OR USED UNDER THE LOAN DOCUMENTS OR ANY ACT DONE OR
OMITTED BY ANY PERSON, OR THE EXERCISE OF ANY RIGHTS OR REMEDIES THEREUNDER,
INCLUDING THE ACQUISITION OF ANY COLLATERAL BY THE SECURED CREDITORS BY WAY OF
FORECLOSURE OF THE LIEN THEREON, DEED OR BILL OF SALE IN LIEU OF SUCH
FORECLOSURE OR OTHERWISE;
provided, however, that the Borrower shall not be liable to any Indemnitee for
any portion of such claims, damages, liabilities and expenses resulting from
such Indemnitee's gross negligence or willful misconduct. In the event this
indemnity is unenforceable as a matter of law as to a particular matter or
consequence referred to herein, it shall be enforceable to the full extent
permitted by law.
This indemnification applies, without limitation, to any act, omission, event or
circumstance existing or occurring on or prior to the later of each of the
Applicable Termination Dates or the
87