AGREEMENT AND IN
PARTICULAR, THIS SECTION; HAS CONSULTED LEGAL COUNSEL; UNDERSTANDS THE RIGHT IT
IS GRANTING IN THIS AGREEMENT AND IS WAIVING IN THIS SECTION IN PARTICULAR, AND
MAKES THE ABOVE WAIVER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY.
9.10
VENUE.
THE BORROWER AND THE LENDER AGREE THAT ANY ACTION OR
PROCEEDING TO ENFORCE OR ARISING OUT OF THIS AGREEMENT SHALL BE COMMENCED IN ANY
COURT OF THE STATE OF ILLINOIS SITTING IN CHICAGO, OR IN THE DISTRICT COURT OF
THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND THE BORROWER WAIVES
PERSONAL SERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT COMMENCING
AN ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED AND CONFER
PERSONAL JURISDICTION IF SERVED BY REGISTERED OR CERTIFIED MAIL TO THE BORROWER
OR AS OTHERWISE PROVIDED BY THE LAWS OF THE STATE OF ILLINOIS OR THE UNITED
STATES OF AMERICA.
9.11
INDEMNIFICATION.
THE BORROWER AGREES TO DEFEND (WITH COUNSEL
SATISFACTORY TO THE LENDER), PROTECT, INDEMNIFY AND HOLD HARMLESS EACH
INDEMNIFIED PARTY (FOR THE PURPOSES HEREIN "INDEMNIFIED PARTY" AND "INDEMNIFIED
PARTIES" SHALL MEAN EACH OF THE LENDER AND ANY PARENT CORPORATION, AFFILIATED
CORPORATION OR SUBSIDIARIES OF THE LENDER, AND EACH OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEY AND AGENTS AND ALL OF SUCH PARTIES AND
ENTITIES) FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
10
CLAIMS, COSTS, EXPENSES AND DISTRIBUTIONS OF ANY KIND OR NATURE (INCLUDING,
WITHOUT LIMITATION, THE DISBURSEMENTS AND THE REASONABLE FEES OF COUNSEL FOR THE
LENDER, WHICH SHALL NOT INCLUDE, ATTORNEYS' FEES AND TIME CHARGES OF ATTORNEYS
WHO MAY BE EMPLOYEES OF THE LENDER, ANY PARENT CORPORATION OR AFFILIATED
CORPORATION OF THE LENDER), WHICH MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED
AGAINST THE LENDER (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL AND WHETHER BASED
ON ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING, WITHOUT
LIMITATION, SECURITIES, ENVIRONMENTAL LAWS AND COMMERCIAL LAWS AND REGULATIONS,
UNDER COMMON LAW OR IN EQUITY, OR BASED ON CONTRACT OR OTHERWISE) IN ANY MANNER
RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY RELATED AGREEMENT, OR ANY
ACT, EVENT OR TRANSACTION RELATED OR ATTENDANT THERETO, UNLESS AS TO ANY
INDEMNIFIED PARTY IT SHALL BE DETERMINED IN A FINAL, NONAPPEALABLE JUDGMENT BY A
COURT OF COMPETENT JURISDICTION THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES ,
OR EXPENSES RESULTED PRIMARILY FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF SUCH INDEMNIFIED PARTY.
ANY LIABILITY, OBLIGATION, LOSS, DAMAGE, PENALTY,
COST OR EXPENSE COVERED BY THIS INDEMNITY SHALL BE PAID TO THE LENDER ON DEMAND,
AND, FAILING PROMPT PAYMENT, SHALL, TOGETHER WITH INTEREST THEREON AT THE
DEFAULT RATE FROM THE DATE INCURRED BY THE LENDER UNTIL PAID BY THE BORROWER, BE
ADDED TO THE LIABILITIES OF THE BORROWER AND BE SECURED BY THE COLLATERAL.
THE
PROVISIONS OF THIS SECTION 9.11 SHALL SURVIVE THE SATISFACTION AND PAYMENT OF
THE OTHER LIABILITIES AND THE TERMINATION OF THIS AGREEMENT.
THE ABOVE
OBLIGATION TO INDEMNIFY AND HOLD HARMLESS APPLIES ONLY IN CONNECTION WITH
LENDER'S CAPACITY AS A LENDER UNDER THE