SECTION 9.2 IS FINALLY JUDICIALLY DETERMINED TO BE
UNAVAILABLE FOR ANY REASON OR IS INSUFFICIENT TO HOLD ANY INDEMNIFIED PERSON
HARMLESS (WITH RESPECT ONLY TO THE LIABILITIES THAT ARE THE SUBJECT
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OF THIS SECTION 9.2), THEN BORROWER, ON THE ONE HAND, AND SUCH INDEMNIFIED
PERSON, ON THE OTHER HAND, SHALL CONTRIBUTE TO THE LIABILITIES FOR WHICH SUCH
INDEMNIFICATION OR REIMBURSEMENT IS HELD UNAVAILABLE OR IS INSUFFICIENT:
(X) IN
SUCH PROPORTION AS IS APPROPRIATE TO REFLECT THE RELATIVE BENEFITS TO BORROWER,
ON THE ONE HAND, AND SUCH INDEMNIFIED PERSON, ON THE OTHER HAND, FROM THE
TRANSACTIONS TO WHICH SUCH INDEMNIFICATION OR REIMBURSEMENT RELATES; OR (Y) IF
THE ALLOCATION PROVIDED BY CLAUSE (X) ABOVE IS NOT PERMITTED BY APPLICABLE LAW,
IN SUCH PROPORTION AS IS APPROPRIATE TO REFLECT NOT ONLY THE RELATIVE BENEFITS
REFERRED TO IN CLAUSE (X) BUT ALSO THE RELATIVE FAULTS OF BORROWER, ON THE ONE
HAND, AND ALL INDEMNIFIED PERSONS, ON THE OTHER HAND, AS WELL AS ANY OTHER
EQUITABLE CONSIDERATIONS.
NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 9.2,
(A) NO PARTY FOUND LIABLE FOR A FRAUDULENT MISREPRESENTATION SHALL BE ENTITLED
TO CONTRIBUTION FROM ANY OTHER PARTY WHO IS NOT ALSO FOUND LIABLE FOR SUCH
FRAUDULENT MISREPRESENTATION, AND (B) THE INDEMNIFYING PERSONS AGREE THAT IN NO
EVENT SHALL THE AMOUNT TO BE CONTRIBUTED BY THE INDEMNIFIED PERSONS COLLECTIVELY
PURSUANT TO THIS PARAGRAPH EXCEED THE AMOUNT OF THE FEES (BY UNDERWRITING
DISCOUNT OR OTHERWISE) ACTUALLY RECEIVED BY THE INDEMNIFIED PERSONS IN
CONNECTION WITH THE CLOSING OF THE LOAN OR THE SECURITIZATION.
(G)
BORROWER AGREES THAT THE INDEMNIFICATION, CONTRIBUTION AND
REIMBURSEMENT OBLIGATIONS SET FORTH IN THIS SECTION 9.2 SHALL APPLY WHETHER OR
NOT ANY INDEMNIFIED PERSON IS A FORMAL PARTY TO ANY LAWSUITS, CLAIMS OR OTHER
PROCEEDINGS.
BORROWER FURTHER AGREES THAT THE INDEMNIFIED PERSONS ARE INTENDED
THIRD PARTY BENEFICIARIES UNDER THIS SECTION 9.2.
(H)
THE LIABILITIES AND OBLIGATIONS OF THE INDEMNIFIED PERSONS AND
BORROWER UNDER THIS SECTION 9.2 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT
AND THE SATISFACTION AND DISCHARGE OF THE DEBT.
(I)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN,
BORROWER SHALL HAVE NO OBLIGATION TO ACT AS DEPOSITOR WITH RESPECT TO THE LOAN
OR AN ISSUER OR REGISTRANT WITH RESPECT TO THE SECURITIES ISSUED IN ANY
SECURITIZATION.
SECTION 9.3.
REAL PROPERTY INDEMNIFICATIONS.
(A)
BORROWER SHALL, AT ITS SOLE COST AND EXPENSE, PROTECT, DEFEND,
INDEMNIFY, RELEASE AND HOLD HARMLESS THE INDEMNIFIED PARTIES (HEREINAFTER
DEFINED) FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, LIABILITIES (INCLUDING,
WITHOUT LIMITATION, STRICT LIABILITIES), ACTIONS, PROCEEDINGS, OBLIGATIONS,
DEBTS, DAMAGES, LOSSES, COSTS, EXPENSES, DIMINUTIONS IN VALUE, FINES, PENALTIES,
CHARGES, FEES, EXPENSES, JUDGMENTS, AWARDS, AMOUNTS PAID IN SETTLEMENT, PUNITIVE
DAMAGES, FORESEEABLE DAMAGES, OF WHATEVER KIND OR NATURE (INCLUDING, BUT NOT
LIMITED, TO REASONABLE ATTORNEYS' FEES AND OTHER COSTS OF DEFENSE)
(COLLECTIVELY, THE "LOSSES") IMPOSED UPON OR INCURRED BY OR ASSERTED AGAINST ANY
INDEMNIFIED PARTIES AND ARISING OUT OF OR IN ANY WAY RELATING TO ANY ONE OR MORE
OF THE FOLLOWING (EXCEPT IN EACH CASE TO THE EXTENT SUCH LOSSES WERE CAUSED AS A
RESULT OF THE