PERSONS MAY INCUR OR WHICH MAY BE ASSERTED AGAINST THE AGENT AND LENDERS OR SUCH
OTHER PERSONS IN CONNECTION WITH OR ARISING OUT OF ANY INVESTIGATION, LITIGATION
OR PROCEEDING RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY INVOLVING THE
BORROWER OR ANY SHAREHOLDER OR ANY AFFILIATE OF THE BORROWER OR ANY SUCH
SHAREHOLDER (INCLUDING COMPLIANCE WITH OR CONTESTING OF ANY SUBPOENAS OR OTHER
PROCESS ISSUED AGAINST THE AGENT AND LENDERS, OR ANY DIRECTOR, OFFICER OR
EMPLOYEE OF THE AGENT AND LENDERS, OR ANY PERSON, IF ANY, WHO CONTROLS ANY
LENDER IN ANY PROCEEDING RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY
INVOLVING THE BORROWER OR ANY SHAREHOLDER OR ANY AFFILIATE OF THE BORROWER OR
ANY SUCH SHAREHOLDER), WHETHER OR NOT A LENDER IS PARTY THERETO, OTHER THAN
CLAIMS, DAMAGES, LOSSES, LIABILITIES OR JUDGMENTS WITH RESPECT TO ANY MATTER AS
TO WHICH THE AGENT OR A LENDER OR SUCH OTHER PERSON SEEKING INDEMNITY SHALL HAVE
BEEN FINALLY ADJUDICATED NOT TO HAVE ACTED IN GOOD FAITH OR TO HAVE BEEN GROSSLY
NEGLIGENT IN ITS ACTIONS OR INACTIONS.
PROMPTLY UPON RECEIPT BY ANY INDEMNIFIED
PARTY HEREUNDER OF NOTICE OF THE COMMENCEMENT OF ANY ACTION, SUCH INDEMNIFIED
PARTY SHALL, IF A CLAIM IN RESPECT THEREOF IS TO BE MADE AGAINST THE BORROWER
HEREUNDER, NOTIFY THE BORROWER IN WRITING OF THE COMMENCEMENT THEREOF.
(C)
THE BORROWER ACKNOWLEDGES AND AGREES THAT
ITS AGREEMENTS AND OBLIGATIONS UNDER THIS SECTION 11 SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT AND REPAYMENT IN FULL OF THE LOANS.
SECTION 12.
AMENDMENTS AND WAIVERS, ETC.
(A)
AMENDMENTS AND WAIVERS.
NO AMENDMENT OR
WAIVER OF ANY PROVISION OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, AND NO
CONSENT WITH RESPECT TO ANY DEPARTURE BY BORROWER THEREFROM, SHALL BE EFFECTIVE
UNLESS THE SAME SHALL BE IN WRITING AND SIGNED BY THE REQUIRED LENDERS (OR BY
AGENT AT THE WRITTEN REQUEST OF THE REQUIRED LENDERS) AND BORROWER AND THEN ANY
SUCH WAIVER OR CONSENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR
THE SPECIFIC PURPOSE FOR WHICH GIVEN; PROVIDED, HOWEVER, THAT NO SUCH WAIVER,
AMENDMENT, OR CONSENT SHALL, UNLESS IN WRITING AND SIGNED BY ALL OF THE LENDERS
AFFECTED THEREBY AND BORROWER AND ACKNOWLEDGED BY AGENT, DO ANY OF THE
FOLLOWING:
(I)
INCREASE OR EXTEND ANY COMMITMENT OF ANY
LENDER,
(II)
POSTPONE OR DELAY ANY DATE FIXED BY THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT FOR ANY PAYMENT OF PRINCIPAL, INTEREST,
FEES, OR OTHER AMOUNTS DUE HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT,
(III)
REDUCE THE PRINCIPAL OF, OR THE RATE OF
INTEREST ON, ANY LOAN OR OTHER EXTENSION OF CREDIT HEREUNDER, OR REDUCE ANY FEES
OR OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT,
47
(IV)
CHANGE THE PERCENTAGE OF THE COMMITMENTS THAT
IS REQUIRED TO TAKE ANY ACTION HEREUNDER,
(V)
AMEND THIS SECTION 12 OR ANY PROVISION OF
THE AGREEMENT PROVIDING FOR CONSENT OR OTHER ACTION BY ALL LENDERS,
(VI)
RESERVED,
(VII)
CHANGE THE DEFINITION OF "REQUIRED LENDERS",
(VIII)
CONTRACTUALLY SUBORDINATE ANY OF THE AGENT'S
LIENS,
(IX)
RELEASE ANY BORROWER OR SUBSIDIARY