RIGHTS OR INTERESTS, UNDER THIS AGREEMENT, WITH RESPECT TO
NEGOTIATIONS WITH SELLER OR WITH OTHER CREDITORS OF SELLER OR ANY OF THEIR
SUBSIDIARIES ARISING OUT OF ANY DEFAULT OR ANY EVENTS OR CIRCUMSTANCES THAT MAY
GIVE RISE TO A DEFAULT AND WITH RESPECT TO PRESENTING CLAIMS IN OR OTHERWISE
PARTICIPATING IN OR MONITORING ANY BANKRUPTCY, INSOLVENCY OR OTHER SIMILAR
PROCEEDING INVOLVING CREDITORS' RIGHTS GENERALLY AND ANY PROCEEDING ANCILLARY
THERETO) AND (II) ALL COSTS AND EXPENSES OF BUYER IN CONNECTION WITH THE
ENFORCEMENT OF THIS AGREEMENT, WHETHER IN ANY ACTION, SUIT OR LITIGATION, ANY
BANKRUPTCY, INSOLVENCY OR OTHER SIMILAR PROCEEDING AFFECTING CREDITORS' RIGHTS
GENERALLY (INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND EXPENSES OF
COUNSEL FOR BUYER) WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE
CONSUMMATED.
B)
SELLER AGREES TO INDEMNIFY AND HOLD
HARMLESS BUYER AND EACH OF ITS RESPECTIVE AFFILIATES AND THEIR OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS AND ADVISORS (EACH, AN "INDEMNIFIED PARTY") FROM
AND AGAINST (AND WILL REIMBURSE EACH INDEMNIFIED PARTY AS THE SAME IS INCURRED)
ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF COUNSEL) THAT MAY BE
INCURRED BY OR ASSERTED OR AWARDED AGAINST ANY INDEMNIFIED PARTY, IN EACH CASE
ARISING OUT OF OR IN CONNECTION WITH OR BY REASON OF (INCLUDING, WITHOUT
LIMITATION, IN CONNECTION WITH ANY INVESTIGATION, LITIGATION OR OTHER PROCEEDING
(WHETHER OR NOT SUCH INDEMNIFIED PARTY IS A PARTY THERETO) RELATING TO,
RESULTING FROM OR ARISING OUT OF ANY OF THE PROGRAM DOCUMENTS AND ALL OTHER
DOCUMENTS RELATED THERETO, ANY BREACH OF A REPRESENTATION OR WARRANTY OF SELLER
OR SELLER'S OFFICER IN THIS AGREEMENT OR ANY OTHER PROGRAM DOCUMENT, AND ALL
ACTIONS TAKEN PURSUANT THERETO) (I) THE TRANSACTIONS, THE ACTUAL OR PROPOSED USE
OF THE PROCEEDS OF THE TRANSACTIONS, THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREBY, INCLUDING, WITHOUT LIMITATION, ANY ACQUISITION OR PROPOSED
ACQUISITION OR ANY INDEMNITY PAYABLE UNDER ANY SERVICING AGREEMENT OR OTHER
SERVICING ARRANGEMENT, (II) THE ACTUAL OR ALLEGED PRESENCE OF HAZARDOUS
MATERIALS ON ANY PROPERTY OR ANY ENVIRONMENTAL ACTION RELATING IN ANY WAY TO ANY
PROPERTY OR (III) THE ACTUAL OR ALLEGED VIOLATION OF ANY FEDERAL, STATE,
MUNICIPAL OR LOCAL PREDATORY LENDING LAWS, EXCEPT TO THE EXTENT SUCH CLAIM,
DAMAGE, LOSS, LIABILITY OR EXPENSE IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT
BY A COURT OF COMPETENT JURISDICTION TO
43
HAVE RESULTED FROM SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
SELLER ALSO AGREES NOT TO ASSERT ANY CLAIM AGAINST BUYER OR ANY OF
ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
ATTORNEYS AND AGENTS, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO THE
PROGRAM DOCUMENTS, THE ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE
TRANSACTIONS, THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY.
THE FOREGOING INDEMNITY AND AGREEMENT NOT TO ASSERT CLAIMS EXPRESSLY APPLIES,
WITHOUT LIMITATION, TO THE NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT) OF THE INDEMNIFIED PARTIES.
C)
IF SELLER FAILS TO PAY WHEN