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This excerpt taken from the MRO 8-K filed Jun 29, 2005. Indemnified Party”) from and against
any and all claims, damages, losses, liabilities and expenses (including
without limitation, reasonable fees and disbursements of counsel), that may be
incurred by or asserted or awarded against any Indemnified Party (including
without limitation, in connection with any investigation, litigation or
proceeding, or the preparation of a defense in connection therewith), in each
case arising out of or in connection with this Agreement, any of the
transactions contemplated hereby or any actual or proposed use of the proceeds
of the Advances, 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 have resulted primarily from such Indemnified Party’s gross
negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section applies, such indemnity will be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, any of its
directors, security holders or creditors, an Indemnified Party or any other
person, or any Indemnified Party is otherwise a party thereto, and whether or
not the transactions contemplated hereby are consummated.
(c) No Indemnified Party will have any liability (whether in contract, tort or otherwise) to the Borrower or any of its security holders or creditors for or in connection with the transactions contemplated hereby, except for direct damages (as opposed to special, indirect, consequential or punitive damages (including without limitation, any loss of profits, business or anticipated savings)) determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct.
15. If the Borrower makes any payment of principal of any Advance on any day other than the last day of the Interest Period applicable thereto (as a result of a prepayment, demand, conversion of the interest rate for any Advance to the Base Rate pursuant to Section 6, or otherwise), or if the Borrower fails to borrow or prepay any Advance after the Borrower has given the Lender notice thereof and, in the case of a borrowing, the Lender has agreed to make such Advance, the Borrower will, upon demand by the Lender, pay the Lender any amounts required to compensate the Lender for any losses, costs or expenses that the Lender may reasonably incur as a result of such payment or failure to borrow or prepay.
16. This Agreement is binding upon and will inure to the benefit of the Borrower, the Lender and their respective successors. Either party may, with the written consent of the other party (which consent will not be unreasonably withheld), assign to one or more persons all or a portion of its rights and obligations under this Agreement, provided that the consent of the Borrower will not be required in connection with an assignment to an affiliate of the Lender. Notwithstanding any other provisions set forth in this Agreement, the Lender may at any time create a security interest in all or any portion of the Lender’s rights under this Agreement in favor of any Federal Reserve Bank.
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17. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement.
18. The Borrower hereby irrevocably (i) submits to the non-exclusive jurisdiction of any New York State or Federal court sitting in New York City in any action or proceeding arising out of or relating to this Agreement, (ii) agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State court or in such Federal court, (iii) waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding, and (iv) irrevocably consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to the Borrower at its address specified in Section 12. The Borrower agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing herein will affect the Lender’s right to serve legal process in any other manner permitted by law or affect the Lender’s right to bring any action or proceeding against the Borrower or its property in the courts of other jurisdictions.
19. If a payment has not been made by the Borrower when due hereunder, the Lender and each of its affiliates is authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by the Lender or any of its affiliates to or for the Borrower’s credit or account against any and all of the Borrower’s obligations now or hereafter existing under this Agreement, irrespective of whether the Lender has made demand under this Agreement and although such obligations may be unmatured. The Lender’s rights under this Section are in addition to other rights and remedies (including without limitation, other rights of set-off) which the Lender may have.
20. Each of the parties hereto hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement, the Advances or the Lender’s actions in the negotiation, administration, performance or enforcement hereof or thereof.
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