The Borrower undertakes to the Lender, that if the Lender, each director, officer, employee or agent of the Lender and each person controlling the Lender within the meaning of the United States securities laws (each an “indemnified party”) incurs any loss, liability, cost, claim, charge, expense (including without limitation taxes, legal fees, costs and expenses), demand or damage (a “Loss”) as a result of or in connection with the Senior Loan, the Senior Loan Agreement (or enforcement thereof), and/or the issue, constitution, sale, listing and/or enforcement of the Notes and/or the Notes corresponding to such Senior Loan or Senior Loan Agreement being outstanding, the Borrower shall pay to the Lender on demand an amount equal to such Loss and all costs, charges and expenses which it or any indemnified party may pay or incur in connection with investigating, disputing or defending any such action or claim as such costs, charges and expenses are incurred unless such Loss was either caused by such indemnified party’s negligence or wilful misconduct or arises out of a breach of the representations and warranties of the Lender contained herein or in the Dealer Agreement. The Lender shall not have any duty or obligation whether as fiduciary or trustee for any indemnified party or otherwise, to recover any such payment or to account to any other person for any amounts paid to it under this Clause.
11.2 Independent Obligation
Clause 11.1 (Indemnification) constitutes a separate and independent obligation of the Borrower from its other obligations under or in connection with each Senior Loan Agreement or any other obligations of the
Borrower in connection with the issue of the Notes by the Lender and shall not affect, or be construed to affect, any other provision of any Senior Loan Agreement or any such other obligations.
11.3 Evidence of Loss
If requested by the Borrower, the Lender shall use its reasonable endeavours to provide the Borrower with a certificate of the Lender setting forth the amount of losses, expenses and liabilities described in Clause 11.1 (Indemnification) and specifying in full detail the basis therefore. Any such certificate shall, in the absence of manifest error, be conclusive evidence of the amount of such losses, expenses and liabilities. 11.4 Currency Indemnity
To the fullest extent permitted by law, the obligation of the Borrower under this Agreement, each Senior Loan Supplement or any other obligations of the Borrower in connection with the issue of the Notes by the Lender, in respect of any amount due in the currency (the “first currency”) in which the same is payable shall, notwithstanding any payment in any other currency (the “second currency”) (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the first currency that the Lender may, acting reasonably and in accordance with normal banking procedures, purchase with the sum paid in the second currency (after any premium and costs of exchange) on the Business Day immediately following the day on which the Lender receives such payment. If the amount in the first currency that may be so purchased for any reason falls short of the amount originally due the Borrower hereby agrees to indemnify and hold harmless the Lender against any deficiency in the first currency. Any obligation of the Borrower not discharged by payment in the first currency shall, to the fullest extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided in this Agreement and any Senior Loan Supplement, shall continue in full force and effect.
12. SURVIVAL
The obligations of the Borrower pursuant to Clauses 6.2 (No Set-Off, Counterclaim or Withholding;
Gross-Up), 6.3 (Withholding on Notes), 11 (Indemnity), 14.2 (Stamp Duties) and 24 (Limited Recourse and Non-Petition) shall survive the execution and delivery of each Senior Loan Agreement and the drawdown
and repayment of the relevant Senior Loan, in each case by the Borrower. 13. EXPENSES
13.1 Reimbursement of Front-end Expenses for the Extension of the Senior Loan by the Lender
The Borrower shall reimburse the Lender in the Specified Currency for all reasonable costs and expenses incurred by the Lender in connection with the negotiation, preparation and execution of each Senior Loan Agreement and all related documents and other expenses connected with the extension of each Senior Loan, including, without limitation, the reasonable fees and expense of its counsel.
13.2 Payment of Ongoing Expenses
In addition, the Borrower hereby agrees to pay to or to the order of the Lender on demand in the Specified Currency the upfront acceptance fee of the Trustee and all ongoing commissions, costs, fees and expenses and taxes (including, without limitation, enforcement costs), payable by the Lender under or in respect of the Lender Agreements and the letter entered into between the Borrower, the Lender, the Trustee, the Account Bank and the Agents dated 31 July 2008 in respect of the Programme (as amended, modified, supplemented and/or restated from time to time, the “Fee Side Letter”). The Borrower shall also pay the Lender for, or pay to the order of the Lender for, any indemnification or other payment obligations of the Lender under or in respect of the Agency Agreement, the Account Bank Agreement, Trust Deed and/or the Fee Side Letter (other than the obligation of the Lender to make payments of principal, interest or additional amounts in respect of the corresponding Series of Notes). Payments to the Lender or to the order of the Lender referred to in this Clause 13.2 (Payment of Ongoing Expenses) shall be made by the Borrower at least one Business Day before the relevant payment is to be made or expense incurred. 13.3 Invoices
All payments, costs, commissions, fees and expenses to be paid or reimbursed by the Borrower or agreed to be paid by, or to the order of, the Lender, shall be paid or reimbursed upon receipt of an appropriate invoice (including value added taxes if applicable) submitted to the Borrower or to the Lender (as applicable).
14. GENERAL