THE CONTRARY, UNLESS AND UNTIL OTHERWISE
DIRECTED BY THE REQUIRED LENDERS, AGENT MAY, BUT SHALL HAVE NO OBLIGATION TO,
CONTINUE TO MAKE LOANS AND AN ISSUING BANK MAY, BUT SHALL HAVE NO OBLIGATION TO,
ISSUE OR CAUSE TO BE ISSUED ANY LETTER OF CREDIT FOR THE RATABLE ACCOUNT AND
RISK OF LENDERS FROM TIME TO TIME IF AGENT BELIEVES MAKING SUCH LOANS OR ISSUING
OR CAUSING TO BE ISSUED SUCH LETTER OF CREDIT IS IN THE BEST INTERESTS OF
LENDERS.
(B)
EXCEPT WITH THE PRIOR WRITTEN CONSENT OF AGENT, NO SECURED
PARTY MAY ASSERT OR EXERCISE ANY ENFORCEMENT RIGHT OR REMEDY IN RESPECT OF THE
LOANS, LETTER OF CREDIT OBLIGATIONS OR OTHER OBLIGATIONS, AS AGAINST ANY
BORROWER OR GUARANTOR OR ANY OF THE COLLATERAL OR OTHER PROPERTY OF ANY BORROWER
OR GUARANTOR.
12.4
WACHOVIA CAPITAL IN ITS INDIVIDUAL CAPACITY.
WITH RESPECT TO ITS
COMMITMENT AND THE LOANS MADE AND LETTERS OF CREDIT ISSUED OR CAUSED TO BE
ISSUED BY IT (AND ANY SUCCESSOR ACTING AS AGENT), SO LONG AS WACHOVIA CAPITAL
SHALL BE A LENDER HEREUNDER, IT SHALL HAVE THE SAME RIGHTS AND POWERS HEREUNDER
AS ANY OTHER LENDER AND MAY EXERCISE THE SAME AS THOUGH IT WERE NOT ACTING AS
AGENT, AND THE TERM "LENDER" OR "LENDERS" SHALL, UNLESS THE CONTEXT OTHERWISE
INDICATES, INCLUDE WACHOVIA CAPITAL IN ITS INDIVIDUAL CAPACITY AS LENDER
HEREUNDER.
WACHOVIA CAPITAL (AND ANY SUCCESSOR ACTING AS AGENT) AND ITS
AFFILIATES MAY (WITHOUT HAVING TO ACCOUNT THEREFOR TO ANY LENDER) LEND MONEY TO,
MAKE INVESTMENTS IN AND GENERALLY ENGAGE IN ANY KIND OF BUSINESS WITH BORROWERS
(AND ANY OF ITS SUBSIDIARIES OR AFFILIATES) AS IF IT WERE NOT ACTING AS AGENT,
AND WACHOVIA CAPITAL AND ITS AFFILIATES MAY ACCEPT FEES AND OTHER CONSIDERATION
FROM ANY BORROWER OR GUARANTOR AND ANY OF ITS SUBSIDIARIES AND AFFILIATES FOR
SERVICES IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE WITHOUT HAVING TO
ACCOUNT FOR THE SAME TO LENDERS.
12.5
INDEMNIFICATION.
LENDERS AGREE TO INDEMNIFY AGENT AND EACH ISSUING BANK
(TO THE EXTENT NOT REIMBURSED BY BORROWERS HEREUNDER AND WITHOUT LIMITING ANY
OBLIGATIONS OF BORROWERS HEREUNDER) RATABLY, IN ACCORDANCE WITH THEIR PRO RATA
SHARES, FOR ANY AND ALL CLAIMS OF ANY KIND AND NATURE WHATSOEVER THAT MAY BE
IMPOSED ON, INCURRED BY OR ASSERTED AGAINST AGENT (INCLUDING BY ANY LENDER)
ARISING OUT OF OR BY REASON OF ANY INVESTIGATION IN OR IN ANY WAY RELATING TO OR
ARISING OUT OF THIS AGREEMENT OR ANY OTHER FINANCING AGREEMENT OR ANY OTHER
DOCUMENTS CONTEMPLATED BY OR REFERRED TO HEREIN OR THEREIN OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (INCLUDING THE COSTS AND EXPENSES THAT AGENT IS
OBLIGATED TO PAY HEREUNDER) OR THE ENFORCEMENT OF ANY OF THE TERMS HEREOF OR
THEREOF OR OF ANY SUCH OTHER DOCUMENTS, PROVIDED, THAT, NO LENDER SHALL BE
LIABLE FOR ANY OF THE FOREGOING TO THE EXTENT IT ARISES FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY TO BE INDEMNIFIED AS DETERMINED BY
A FINAL NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION.
THE
FOREGOING INDEMNITY SHALL