WHICH SHALL HAVE BEEN INCURRED OR SUSTAINED BY THE AGENT ACTING
IN SUCH CAPACITY UNDER THIS AMENDMENT OR IN SUPPORT OF ANY PROVISION OF ADEQUATE
INDEMNITY TO THE AGENT AGAINST ANY TAXES OR LIENS WHICH BY LAW SHALL HAVE, OR
MAY HAVE, PRIORITY OVER THE RIGHTS OF THE AGENT TO SUCH MONIES, AND PAYMENT OF
ANY OTHER AMOUNTS DUE TO AGENT PURSUANT TO THE TERMS OF THIS AMENDMENT;
(B)
SECOND, TO THE PAYMENT OF DEFAULT INTEREST ON
THE REDUCED PRINCIPAL BALANCE, APPLIED AMONG THE BANKS PRO RATA;
(C)
THIRD, TO THE PAYMENT OF THE REDUCED
PRINCIPAL BALANCE, APPLIED AMONG THE BANKS PRO RATA;
(D)
FOURTH, TO ALL OTHER OBLIGATIONS IN SUCH ORDER
OR PREFERENCE AS THE MAJORITY BANKS SHALL DETERMINE; AND
(E)
LASTLY, THE EXCESS, IF ANY, SHALL BE
RETURNED TO THE BORROWER OR TO SUCH OTHER PERSONS AS ARE LEGALLY ENTITLED
THERETO.
12
9.
RELEASE OF AGENT AND BANKS.
EACH OF
THE AMENDMENT PARTIES HEREBY FOREVER RELEASES AND DISCHARGES THE AGENT, THE
BANKS, THEIR RESPECTIVE PARENT CORPORATIONS AND ALL OTHER CORPORATIONS AND
ENTITIES AFFILIATED WITH THE AGENT AND/OR BANKS, AND ITS AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS AND REPRESENTATIVES, AND THE
RESPECTIVE HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS OF EACH OF
THE FOREGOING, FROM ANY AND ALL LIABILITIES, CLAIMS, COUNTERCLAIMS, CAUSES OF
ACTION, DAMAGES, COSTS, EXPENSES OR DEMANDS OF ANY KIND WHATSOEVER IN LAW OR IN
EQUITY, INCLUDING WITHOUT LIMITATION, FROM ANY CLAIMS OR JOINDERS FOR SOLE
LIABILITY, CONTRIBUTION, INDEMNITY OR OTHERWISE, WHICH EXIST AGAINST THEM OR ANY
OF THEM WHICH EACH OF THE AMENDMENT PARTIES HAS, HAD OR MAY HAVE, WHETHER KNOWN
OR UNKNOWN, FORESEEN OR UNFORESEEN, BY REASON OF, RELATING TO, OR ARISING IN
CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY OR PERFORMANCE OF THE
CREDIT AGREEMENT OR THIS AMENDMENT OR ARISING WITH RESPECT TO ANY ACTIONS TAKEN
BY THE AGENT AND/OR BANK RELATED TO THE LOAN DOCUMENTS AND THIS AMENDMENT.
THIS
RELEASE RELATES TO ANY ACTIONS TAKEN BY THE AGENT, AND/OR BANKS ON OR PRIOR TO
THE DATE OF THIS AMENDMENT AND WILL SURVIVE IN PERPETUITY, PROVIDED, THAT IN THE
EVENT THAT THE RELEASES SET FORTH IN SECTION 5 HEREOF ARE LIMITED AS SET FORTH
THEREIN, THE RELEASES SET FORTH IN THIS SECTION 9 SHALL EQUALLY LIMITED.
10.
INDEMNITY.
THE OBLIGORS AGREE TO INDEMNIFY
EACH OF THE AGENT AND THE BANKS, THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS
AND ATTORNEYS, AND EACH LEGAL ENTITY, IF ANY WHO CONTROLS THE AGENT OR BANK
(COLLECTIVELY, THE "INDEMNIFIED PARTIES") AND TO HOLD EACH INDEMNIFIED PARTY
HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, ALL FEES OF COUNSEL WITH WHOM ANY
INDEMNIFIED PARTY MAY CONSULT AND ALL EXPENSES OF LITIGATION OR PREPARATION
THEREFORE) WHICH ANY INDEMNIFIED PARTY MAY INCUR OR WHICH MAY BE ASSERTED
AGAINST ANY INDEMNIFIED PARTY IN CONNECTION WITH OR ARISING OUT OF A WILLFUL
BREACH OF THIS AMENDMENT BY THE BORROWER OR THE OWNERS OF DEDICATED CDO
SECURITIES OR IN CONNECTION WITH A DISGORGEMENT AS SET FORTH IN SECTION