SHALL HAVE BEEN FALSE,
INCORRECT OR MISLEADING IN ANY MATERIAL RESPECT WHEN MADE OR DEEMED MADE, (II)
THE FAILURE BY THE SERVICER TO COMPLY WITH ANY APPLICABLE LAW, (III) THE FAILURE
OF THE SERVICER TO COMPLY WITH ITS DUTIES OR OBLIGATIONS IN ACCORDANCE WITH THE
AGREEMENT, OR (IV) ANY LITIGATION, PROCEEDINGS OR INVESTIGATION AGAINST THE
SERVICER, EXCLUDING, HOWEVER, (A) INDEMNIFIED AMOUNTS TO THE EXTENT RESULTING
FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF SUCH INDEMNIFIED
PARTY, AND (B) UNDER ANY FEDERAL, STATE OR LOCAL INCOME OR FRANCHISE TAXES OR
ANY OTHER TAX IMPOSED ON OR MEASURED BY INCOME (OR ANY INTEREST OR PENALTIES
WITH RESPECT THERETO OR ARISING FROM A FAILURE TO COMPLY THEREWITH) REQUIRED TO
BE PAID BY SUCH INDEMNIFIED PARTY IN CONNECTION HEREWITH TO ANY TAXING
AUTHORITY.
THE PROVISIONS OF THIS INDEMNITY SHALL RUN DIRECTLY TO AND BE
ENFORCEABLE BY AN INJURED PARTY SUBJECT TO THE LIMITATIONS HEREOF.
IF THE
SERVICER HAS MADE ANY INDEMNITY PAYMENT PURSUANT TO THIS SECTION 9.2 AND SUCH
PAYMENT FULLY INDEMNIFIED THE RECIPIENT THEREOF AND THE RECIPIENT THEREAFTER
COLLECTS ANY PAYMENTS FROM OTHERS IN RESPECT OF SUCH INDEMNIFIED AMOUNTS, THE
RECIPIENT SHALL REPAY TO THE SERVICER AN AMOUNT EQUAL TO THE AMOUNT IT HAS
COLLECTED FROM OTHERS IN RESPECT OF SUCH INDEMNIFIED AMOUNTS.
(B)
IF FOR ANY REASON THE INDEMNIFICATION
PROVIDED ABOVE IN THIS SECTION 9.2 IS UNAVAILABLE TO THE INDEMNIFIED PARTY OR IS
INSUFFICIENT TO HOLD AN INDEMNIFIED PARTY HARMLESS, THEN SERVICER SHALL
CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE TO SUCH INDEMNIFIED PARTY AS A RESULT
OF SUCH LOSS, CLAIM, DAMAGE OR LIABILITY IN SUCH PROPORTION AS IS APPROPRIATE TO
REFLECT NOT ONLY THE RELATIVE BENEFITS RECEIVED BY SUCH INDEMNIFIED PARTY ON THE
ONE HAND AND SERVICER ON THE OTHER HAND BUT ALSO THE RELATIVE FAULT OF SUCH
INDEMNIFIED PARTY AS WELL AS ANY OTHER RELEVANT EQUITABLE CONSIDERATIONS.
(C)
THE OBLIGATIONS OF THE SERVICER UNDER THIS
SECTION 9.2 SHALL SURVIVE THE RESIGNATION OR REMOVAL OF THE ADMINISTRATIVE AGENT
OR ANY MANAGING AGENTS AND THE TERMINATION OF THIS AGREEMENT.
66
(D)
THE PARTIES HERETO AGREE THAT THE PROVISIONS
OF THIS SECTION 9.2 SHALL NOT BE INTERPRETED TO PROVIDE RECOURSE TO THE SERVICER
AGAINST LOSS BY REASON OF THE BANKRUPTCY OR INSOLVENCY (OR OTHER CREDIT
CONDITION) OF, OR DEFAULT BY, RELATED OBLIGOR ON, ANY TRANSFERRED LOAN.
(E)
ANY INDEMNIFICATION PURSUANT TO THIS
SECTION 9.2 SHALL NOT BE PAYABLE FROM THE COLLATERAL.
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE MANAGING AGENTS
SECTION 10.1
AUTHORIZATION AND ACTION.
(A)
EACH SECURED PARTY HEREBY DESIGNATES AND
APPOINTS CIBC AS ADMINISTRATIVE AGENT HEREUNDER, AND AUTHORIZES CIBC TO TAKE
SUCH ACTIONS AS AGENT ON ITS BEHALF AND TO EXERCISE SUCH POWERS AS ARE DELEGATED
TO THE ADMINISTRATIVE AGENT BY THE TERMS OF THIS AGREEMENT TOGETHER WITH SUCH
POWERS AS ARE REASONABLY INCIDENTAL THERETO.
THE ADMINISTRATIVE AGENT SHALL NOT
HAVE ANY DUTIES OR RESPONSIBILITIES, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN, OR
ANY FIDUCIARY RELATIONSHIP WITH ANY SECURED PARTY, AND NO IMPLIED COVENANTS,
FUNCTIONS, RESPONSIBILITIES, DUTIES, OBLIGATIONS OR