DEFAULT OR EVENT
OF DEFAULT AS SHALL BE DIRECTED BY THE REQUIRED LENDERS, PROVIDED THAT, UNLESS
AND UNTIL THE AGENT SHALL HAVE RECEIVED SUCH DIRECTIONS, THE AGENT MAY (BUT
SHALL NOT BE OBLIGATED TO) TAKE SUCH ACTION, OR REFRAIN FROM TAKING SUCH ACTION,
WITH RESPECT TO SUCH DEFAULT OR EVENT OF DEFAULT AS IT SHALL DEEM ADVISABLE IN
THE BEST INTERESTS OF THE LENDERS.
SECTION 9.4.
RIGHTS OF AGENT AND ITS AFFILIATES AS A LENDER.
WITH RESPECT TO
ITS COMMITMENT AND THE LOANS MADE BY IT AND ANY OF ITS AFFILIATES, WACHOVIA
BANK, NATIONAL ASSOCIATION (AND ANY SUCCESSOR ACTING AS AGENT HEREUNDER) IN ITS
CAPACITY AS A LENDER HEREUNDER AND ANY AFFILIATE OF WACHOVIA BANK, NATIONAL
ASSOCIATION IN ITS CAPACITY AS A LENDER HEREUNDER SHALL HAVE THE SAME RIGHTS AND
POWERS HEREUNDER AS ANY OTHER LENDER AND MAY EXERCISE THE SAME AS THOUGH IT WERE
NOT ACTING AS THE AGENT, AND THE TERM "LENDER" OR "LENDERS" SHALL, UNLESS THE
CONTEXT OTHERWISE INDICATES, INCLUDE WACHOVIA BANK, NATIONAL ASSOCIATION IN ITS
INDIVIDUAL CAPACITY AND ANY AFFILIATE OF THE AGENT IN ITS INDIVIDUAL CAPACITY.
WACHOVIA BANK, NATIONAL ASSOCIATION (AND ANY SUCCESSOR ACTING AS AGENT
HEREUNDER) AND ANY AFFILIATE THEREOF MAY (WITHOUT HAVING TO ACCOUNT THEREFOR TO
ANY LENDER) ACCEPT DEPOSITS FROM, LEND MONEY TO AND GENERALLY ENGAGE IN ANY KIND
OF BANKING, TRUST OR OTHER BUSINESS WITH THE BORROWER (AND ANY OF
45
THE BORROWER'S AFFILIATES) AS IF IT WERE NOT ACTING AS THE AGENT, AND WACHOVIA
BANK, NATIONAL ASSOCIATION AND ANY AFFILIATE THEREOF MAY ACCEPT FEES AND OTHER
CONSIDERATION FROM THE BORROWER OR ANY SUBSIDIARY OR AFFILIATE THEREOF FOR
SERVICES IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
OTHERWISE WITHOUT HAVING TO ACCOUNT FOR THE SAME TO THE LENDERS.
SECTION 9.5.
INDEMNIFICATION.
EACH LENDER SEVERALLY AGREES TO INDEMNIFY THE
AGENT, TO THE EXTENT THE AGENT SHALL NOT HAVE BEEN REIMBURSED BY THE BORROWER,
RATABLY IN ACCORDANCE WITH ITS COMMITMENT, FOR ANY AND ALL LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES (INCLUDING, WITHOUT LIMITATION, COUNSEL FEES AND DISBURSEMENTS) OR
DISBURSEMENTS OF ANY KIND AND NATURE WHATSOEVER WHICH MAY BE IMPOSED ON,
INCURRED BY OR ASSERTED AGAINST THE AGENT IN ANY WAY RELATING TO OR ARISING OUT
OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OTHER DOCUMENTS CONTEMPLATED
BY OR REFERRED TO HEREIN OR THEREIN OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (INCLUDING, WITHOUT LIMITATION, THE COSTS AND EXPENSES THAT THE BORROWER
IS OBLIGATED TO PAY UNDER SECTION 10.3 OR ANY AMOUNT THE BORROWER IS OBLIGATED
TO PAY UNDER SECTION 10.4, BUT EXCLUDING THE NORMAL ADMINISTRATIVE COSTS AND
EXPENSES INCIDENT TO THE PERFORMANCE OF ITS AGENCY DUTIES HEREUNDER) OR THE
ENFORCEMENT OF ANY OF THE TERMS HEREOF OR THEREOF OR ANY SUCH OTHER DOCUMENTS;
PROVIDED THAT NO LENDER SHALL BE LIABLE FOR ANY OF THE FOREGOING TO THE EXTENT
THEY ARISE FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE AGENT.
IF ANY
INDEMNITY FURNISHED TO THE AGENT FOR ANY PURPOSE SHALL, IN THE OPINION