AND COSTS AS HEREIN PROVIDED UNTIL SUCH
FAILURE HAS BEEN CURED, AND AGENT BANK SHALL BE ENTITLED TO (A) WITHHOLD OR
SETOFF, AND TO APPLY TO THE PAYMENT OF THE DEFAULTED AMOUNT AND ANY RELATED
INTEREST, ANY AMOUNTS TO BE PAID TO SUCH DEFAULTING LENDER UNDER THIS CREDIT
AGREEMENT, AND (B) BRING AN ACTION OR SUIT AGAINST SUCH DEFAULTING LENDER IN A
COURT OF COMPETENT JURISDICTION TO RECOVER THE DEFAULTED AMOUNT AND ANY RELATED
INTEREST.
IN ADDITION, THE DEFAULTING LENDER SHALL INDEMNIFY, DEFEND AND HOLD
AGENT BANK AND EACH OF THE OTHER LENDERS HARMLESS FROM AND AGAINST ANY AND ALL
LIABILITIES AND COSTS, PLUS INTEREST THEREON AT THE DEFAULT RATE, WHICH THEY MAY
SUSTAIN OR INCUR BY REASON OF OR AS A DIRECT CONSEQUENCE OF THE DEFAULTING
LENDER'S FAILURE OR REFUSAL TO ABIDE BY ITS OBLIGATIONS UNDER THIS CREDIT
AGREEMENT.
SECTION 9.05.
RIGHTS, EXCULPATION, ETC.
NEITHER AGENT BANK, ANY
AFFILIATE OF AGENT BANK, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ATTORNEYS OR CONSULTANTS, SHALL BE LIABLE TO ANY LENDER FOR
ANY ACTION TAKEN OR OMITTED BY THEM HEREUNDER OR UNDER ANY OF THE LOAN
DOCUMENTS, OR IN CONNECTION HEREWITH OR THEREWITH, EXCEPT THAT AGENT BANK SHALL
BE LIABLE FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IN THE ABSENCE OF
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AGENT BANK SHALL NOT BE LIABLE FOR ANY
APPORTIONMENT OR DISTRIBUTION OF PAYMENTS MADE BY IT IN GOOD FAITH PURSUANT TO
SECTION 9.04, AND IF ANY SUCH APPORTIONMENT OR DISTRIBUTION IS SUBSEQUENTLY
DETERMINED TO HAVE BEEN MADE IN ERROR THE SOLE RECOURSE OF ANY PERSON TO WHOM
PAYMENT WAS DUE, BUT NOT MADE, SHALL BE TO RECOVER FROM THE RECIPIENTS OF SUCH
PAYMENTS ANY PAYMENT IN EXCESS OF THE AMOUNT TO WHICH THEY ARE DETERMINED TO
HAVE BEEN ENTITLED.
AGENT BANK SHALL NOT BE RESPONSIBLE TO ANY LENDER FOR ANY
RECITALS, STATEMENTS, REPRESENTATIONS OR WARRANTIES HEREIN OR FOR THE EXECUTION,
EFFECTIVENESS, GENUINENESS, VALIDITY, ENFORCEABILITY, COLLECTIBILITY OR
SUFFICIENCY OF THIS CREDIT AGREEMENT, ANY OF THE SECURITY DOCUMENTATION OR ANY
OF THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY; OR FOR THE FINANCIAL CONDITION OF THE BORROWERS OR ANY OF THEIR
AFFILIATES.
AGENT BANK SHALL NOT BE REQUIRED TO MAKE ANY INQUIRY CONCERNING
EITHER THE PERFORMANCE OR OBSERVANCE OF ANY OF THE TERMS, PROVISIONS OR
CONDITIONS OF THIS CREDIT AGREEMENT OR ANY OF THE LOAN DOCUMENTS OR THE
FINANCIAL CONDITION OF THE BORROWERS OR ANY OF THEIR AFFILIATES, OR THE
EXISTENCE OR POSSIBLE EXISTENCE OF ANY DEFAULT OR EVENT OF DEFAULT.
120
SECTION 9.06.
RELIANCE.
AGENT BANK SHALL BE ENTITLED TO RELY UPON ANY
WRITTEN NOTICES, STATEMENTS, CERTIFICATES, ORDERS OR OTHER DOCUMENTS, TELECOPIES
OR ANY TELEPHONE MESSAGE BELIEVED BY IT IN GOOD FAITH TO BE GENUINE AND CORRECT
AND TO HAVE BEEN SIGNED, SENT OR MADE BY THE PROPER PERSON, AND WITH RESPECT TO
ALL MATTERS PERTAINING TO THIS CREDIT AGREEMENT OR ANY OF THE LOAN DOCUMENTS AND
ITS DUTIES HEREUNDER OR THEREUNDER, UPON ADVICE OF LEGAL COUNSEL (INCLUDING
COUNSEL