to any actions taken or omitted to be taken by it while it was
Administrative Agent under the Loan Documents and the Other Related Documents.
Notwithstanding anything contained herein to the contrary, Administrative Agent
may assign its rights and duties under the Loan Documents and the Other Related
Documents to any of its Affiliates by giving Borrower and each Lender prior
written notice.
11.15 No Set-Offs. Each Lender hereby acknowledges that the exercise by any
Lender of offset, set-off, banker's lien or similar rights against any deposit
account or other property or asset of Borrower, whether or not located in
California, could result under certain laws in significant impairment of the
ability of all Lenders to recover any further amounts in respect of the Loan.
Therefore, each Lender agrees not to charge or offset any amount owed to it by
Borrower against any of the accounts, property or assets of Borrower or any of
its affiliates held by such Lender without the prior written approval of
Administrative Agent and Requisite Lenders.
ARTICLE 12
MISCELLANEOUS PROVISIONS
12.1 Indemnity. EACH BORROWER HEREBY AGREES, JOINTLY AND SEVERALLY, TO DEFEND,
INDEMNIFY AND HOLD HARMLESS ADMINISTRATIVE AGENT, LENDERS, AND THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (EACH AN "INDEMNITEE" AND,
COLLECTIVELY "INDEMNITEES") FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES,
LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS AND LEGAL OR OTHER EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND EXPENSES) WHICH
ANY SUCH INDEMNITEE MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF: (A) THE
PURPOSE TO WHICH EITHER BORROWER APPLIES THE LOAN PROCEEDS; (B) THE FAILURE OF
EITHER BORROWER TO PERFORM ANY OBLIGATIONS AS AND WHEN REQUIRED BY ANY
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FRANCHISE AGREEMENT, ANY MANAGEMENT AGREEMENT, THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS; (C) ANY FAILURE AT ANY TIME OF ANY OF BORROWER'S
REPRESENTATIONS OR WARRANTIES TO BE TRUE AND CORRECT; OR (D) ANY ACT OR OMISSION
BY BORROWER, CONSTITUENT PARTNER OR MEMBER OF BORROWER, ANY CONTRACTOR,
SUBCONTRACTOR OR MATERIAL SUPPLIER, ENGINEER, ARCHITECT OR OTHER PERSON OR
ENTITY WITH RESPECT TO ANY OF THE PROPERTY; PROVIDED, HOWEVER, BORROWER SHALL
NOT BE OBLIGATED TO INDEMNIFY ANY INDEMNITEE TO THE EXTENT THAT ANY LOSSES,
DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS AND LEGAL OR OTHER
EXPENSES INCURRED BY SUCH INDEMNITEE (1) ARISE FROM SUCH INDEMNITEE'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OR (2) ARISE FROM ACTS OR EVENTS THAT OCCUR AT
A PROPERTY AFTER FORECLOSURE OR OTHER TAKING OF TITLE TO SUCH PROPERTY BY AN
INDEMNITEE. BORROWER SHALL IMMEDIATELY PAY TO ADMINISTRATIVE AGENT UPON DEMAND
ANY AMOUNTS OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE THE
INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE
PRINCIPAL BALANCE OF THE NOTE. BORROWER'S DUTY AND OBLIGATIONS TO DEFEND,
INDEMNIFY AND HOLD HARMLESS INDEMNITEES SHALL SURVIVE CANCELLATION OF THE NOTE
AND THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF EACH SECURITY DOCUMENT.
12.2 Form of Documents. The form and substance of all documents, instruments,
and forms of evidence to be delivered