DOCUMENTS, AND TO MAKE SUCH INVESTIGATIONS AS
IT DEEMS NECESSARY TO INFORM ITSELF AS TO THE BUSINESS, PROSPECTS, OPERATIONS,
PROPERTY, FINANCIAL AND OTHER CONDITION AND CREDITWORTHINESS OF THE BORROWER.
EXCEPT FOR NOTICES, REPORTS AND OTHER DOCUMENTS EXPRESSLY REQUIRED TO BE
FURNISHED TO THE LENDERS BY THE ADMINISTRATIVE AGENT HEREIN, THE ADMINISTRATIVE
AGENT SHALL NOT HAVE ANY DUTY OR RESPONSIBILITY TO PROVIDE ANY LENDER WITH ANY
CREDIT OR OTHER INFORMATION CONCERNING THE BUSINESS, PROSPECTS, OPERATIONS,
PROPERTY, FINANCIAL AND OTHER CONDITION OR CREDITWORTHINESS OF ANY OF THE
BORROWER OR ANY OF ITS AFFILIATES WHICH MAY COME INTO THE POSSESSION OF ANY
AGENT-RELATED PERSON.
9.07
INDEMNIFICATION OF ADMINISTRATIVE AGENT.
WHETHER OR
NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED, THE LENDERS SHALL
INDEMNIFY UPON DEMAND EACH AGENT-RELATED PERSON (TO THE EXTENT NOT REIMBURSED BY
OR ON BEHALF OF BORROWER AND WITHOUT LIMITING THE OBLIGATION OF BORROWER TO DO
SO), PRO RATA, AND HOLD HARMLESS EACH AGENT-RELATED PERSON FROM AND AGAINST ANY
AND ALL INDEMNIFIED LIABILITIES INCURRED BY IT; PROVIDED, HOWEVER, THAT (A) NO
LENDER SHALL BE LIABLE FOR THE PAYMENT TO ANY AGENT-RELATED PERSON OF ANY
PORTION OF SUCH INDEMNIFIED LIABILITIES TO THE EXTENT DETERMINED IN A FINAL,
NONAPPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
FROM SUCH AGENT-RELATED PERSON'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND
(B) NO LENDER SHALL BE LIABLE FOR THE PAYMENT OF ANY PORTION OF AN INDEMNIFIED
LIABILITY PURSUANT TO THIS SECTION UNLESS SUCH INDEMNIFIED LIABILITY WAS
INCURRED BY THE ADMINISTRATIVE AGENT IN ITS CAPACITY AS SUCH OR BY ANOTHER
AGENT-RELATED PERSON ACTING FOR THE ADMINISTRATIVE AGENT IN SUCH CAPACITY;
PROVIDED, HOWEVER, THAT NO ACTION TAKEN IN ACCORDANCE WITH THE DIRECTIONS OF THE
REQUIRED LENDERS SHALL BE DEEMED TO CONSTITUTE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT FOR PURPOSES OF THIS SECTION.
WITHOUT LIMITATION OF THE FOREGOING,
EACH LENDER SHALL REIMBURSE THE ADMINISTRATIVE AGENT UPON DEMAND FOR ITS RATABLE
SHARE OF ANY COSTS OR OUT-OF-POCKET EXPENSES (INCLUDING ATTORNEY COSTS) INCURRED
BY THE
39
ADMINISTRATIVE AGENT IN CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY,
ADMINISTRATION, MODIFICATION, AMENDMENT OR ENFORCEMENT (WHETHER THROUGH
NEGOTIATIONS, LEGAL PROCEEDINGS OR OTHERWISE) OF, OR LEGAL ADVICE IN RESPECT OF
RIGHTS OR RESPONSIBILITIES UNDER, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR
ANY DOCUMENT CONTEMPLATED BY OR REFERRED TO HEREIN, TO THE EXTENT THAT THE
ADMINISTRATIVE AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY OR ON BEHALF OF THE
BORROWER.
THE UNDERTAKING IN THIS SECTION SHALL SURVIVE TERMINATION OF THE
AGGREGATE COMMITMENTS, THE PAYMENT OF ALL OBLIGATIONS AND THE RESIGNATION OF THE
ADMINISTRATIVE AGENT.
9.08
ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
BANK OF AMERICA AND ITS AFFILIATES MAY MAKE LOANS TO, ISSUE LETTERS OF CREDIT
FOR THE ACCOUNT OF, ACCEPT DEPOSITS FROM, ACQUIRE EQUITY INTERESTS IN AND
GENERALLY ENGAGE IN ANY KIND OF BANKING, TRUST, FINANCIAL ADVISORY, UNDERWRITING
OR OTHER BUSINESS WITH THE BORROWER AND ITS AFFILIATES AS THOUGH BANK OF AMERICA
WERE NOT THE ADMINISTRATIVE AGENT OR THE L/C ISSUER HEREUNDER AND WITHOUT NOTICE
TO OR CONSENT OF THE LENDERS.
THE LENDERS ACKNOWLEDGE THAT, PURSUANT TO