DECEMBER 31, 2003.
12.2
AMENDMENT AND WAIVER.
EXCEPT AS OTHERWISE PROVIDED, NO PROVISION
OF ANY OF THE LOAN DOCUMENTS MAY BE CHANGED, WAIVED, DISCHARGED OR TERMINATED
ORALLY, BUT ONLY BY AN INSTRUMENT IN WRITING SIGNED BY THE MAJORITY LENDERS (OR
AGENT ON THEIR BEHALF) AND, IF BORROWER IS A PARTY THERETO, BORROWER, EXCEPT
THAT WAIVERS OF PROVISIONS RELATING TO A LOAN PARTY'S PERFORMANCE OR
NON-PERFORMANCE OF ITS OBLIGATIONS HEREUNDER OR THEREUNDER NEED NOT BE SIGNED BY
SUCH LOAN PARTY OR ANY OTHER LOAN PARTY; PROVIDED HOWEVER THAT THE WRITTEN
CONSENT OF AGENT SHALL ALSO BE REQUIRED TO CHANGE, WAIVE, DISCHARGE OR TERMINATE
PROVISIONS OF SECTION 11 AND THE WRITTEN CONSENT OF THE ISSUING BANK SHALL ALSO
BE REQUIRED TO CHANGE, WAIVE, DISCHARGE OR TERMINATE PROVISIONS OF SECTION 2A;
AND PROVIDED FURTHER THAT WITHOUT THE CONSENT OF ALL OF LENDERS (OR AGENT ON
THEIR BEHALF) NO CHANGE, WAIVER, DISCHARGE OR TERMINATION MAY BE MADE THAT WOULD
INCREASE THE AMOUNT OF ANY COMMITMENT OF ANY LENDER, DECREASE THE PRINCIPAL OF
ANY LOAN; DECREASE THE INTEREST RATE PAYABLE ON ANY LOAN; DECREASE THE AMOUNT OF
ANY FEE OR
59
COMMITMENT COMMISSION; EXTEND THE MATURITY DATE OF ANY LOAN; CHANGE THE
DEFINITION OF "MAJORITY LENDERS" OR MODIFY THIS SECTION 12.2.
ANY SUCH CHANGE,
WAIVER, DISCHARGE OR TERMINATION SHALL BE EFFECTIVE ONLY IN THE SPECIFIC
INSTANCE AND FOR THE SPECIFIC PURPOSES FOR WHICH MADE OR GIVEN.
12.3
EXPENSES; INDEMNIFICATION.
(A)
WHETHER OR NOT THE TRANSACTIONS HEREBY CONTEMPLATED SHALL BE
CONSUMMATED, BORROWER SHALL PAY ALL OUT-OF-POCKET COSTS AND EXPENSES OF (X)
AGENT INCURRED IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY,
ADMINISTRATION, FILING AND RECORDING OF, AND (Y) AGENT AND LENDERS INCURRED IN
CONNECTION WITH THE AMENDMENT (INCLUDING ANY WAIVER OR CONSENT) OR MODIFICATION
OF (INCLUDING ANY AMENDMENT, WAIVER, CONSENT OR MODIFICATION AT ANY TIME
REQUESTED BY BORROWER, WHETHER OR NOT SAME IS FINALIZED OR EXECUTED), ANY
FAILURE OF BORROWER TO PERFORM OR OBSERVE ANY PROVISION OF, AND ENFORCEMENT OF
OR PRESERVATION OF ANY RIGHTS UNDER, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS,
THE MAKING AND REPAYMENT OF THE LOANS, AND THE PAYMENT OF ALL INTEREST AND FEES,
INCLUDING, WITHOUT LIMITATION, (A) THE FEES AND EXPENSES OF SULLIVAN & WORCESTER
LLP, COUNSEL FOR AGENT, AND ANY SPECIAL OR LOCAL COUNSEL RETAINED BY AGENT OR
LENDERS, AND WITH RESPECT TO ENFORCEMENT, THE REASONABLE FEES AND EXPENSES OF
COUNSEL FOR AGENT OR ANY LENDER, (B) THE REASONABLE FEES AND EXPENSES OF
ACCOUNTANTS, OTHER CONSULTANTS, APPRAISERS AND OTHER PROFESSIONALS RETAINED BY
AGENT IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREUNDER, AND (C)
PRINTING, TRAVEL, TITLE INSURANCE, MORTGAGE RECORDING, FILING, COMMUNICATION AND
SIGNING TAXES AND COSTS.
(B)
BORROWER AGREES TO PAY, AND TO SAVE AGENT AND LENDERS HARMLESS
FROM (X) ALL PRESENT AND FUTURE STAMP, FILING AND OTHER SIMILAR TAXES, FEES OR
CHARGES (INCLUDING INTEREST AND PENALTIES, IF ANY), WHICH MAY BE PAYABLE IN
CONNECTION WITH THE LOAN DOCUMENTS OR THE ISSUANCE OF THE NOTES OR ANY
MODIFICATION OF ANY OF THE FOREGOING, AND (Y) ALL FINDER'S AND BROKER'S FEES IN
CONNECTION