THEREBY (INCLUDING, WITHOUT LIMITATION, FOR ANY SUCH AMOUNTS INCURRED BY OR
ASSERTED AGAINST THE AGENT IN CONNECTION WITH ANY DISPUTE BETWEEN THE AGENT AND
ANY LENDER OR BETWEEN TWO OR MORE OF THE LENDERS), OR THE
61
ENFORCEMENT OF ANY OF THE TERMS OF THE FACILITY DOCUMENTS OR OF ANY SUCH OTHER
DOCUMENTS; PROVIDED THAT (I) NO LENDER SHALL BE LIABLE FOR ANY OF THE FOREGOING
TO THE EXTENT ANY OF THE FOREGOING IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT
BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF THE AGENT AND (II) ANY INDEMNIFICATION REQUIRED
PURSUANT TO SECTION 4.5(G) SHALL, NOTWITHSTANDING THE PROVISIONS OF THIS
SECTION 11.8, BE PAID BY THE RELEVANT LENDER IN ACCORDANCE WITH THE PROVISIONS
THEREOF.
THE OBLIGATIONS OF THE LENDERS UNDER THIS SECTION 11.8 SHALL SURVIVE
PAYMENT OF THE OBLIGATIONS AND TERMINATION OF THIS AGREEMENT.
11.9
NOTICE OF DEFAULT.
THE
AGENT SHALL NOT BE DEEMED TO HAVE KNOWLEDGE OR NOTICE OF THE OCCURRENCE OF ANY
DEFAULT OR UNMATURED DEFAULT HEREUNDER UNLESS THE AGENT HAS RECEIVED WRITTEN
NOTICE FROM A LENDER OR THE BORROWER REFERRING TO THIS AGREEMENT DESCRIBING SUCH
DEFAULT OR UNMATURED DEFAULT AND STATING THAT SUCH NOTICE IS A "NOTICE OF
DEFAULT".
IN THE EVENT THAT THE AGENT RECEIVES SUCH A NOTICE, THE AGENT SHALL
GIVE PROMPT NOTICE THEREOF TO THE LENDERS.
11.10
RIGHTS AS A LENDER.
IN THE
EVENT THE AGENT IS A LENDER, THE AGENT SHALL HAVE THE SAME RIGHTS AND POWERS
HEREUNDER AND UNDER ANY OTHER FACILITY DOCUMENT WITH RESPECT TO ITS REVOLVING
CREDIT COMMITMENT, ITS REVOLVING CREDIT LOANS, LETTER OF CREDIT PARTICIPATION
AMOUNT, AND ANY LETTERS OF CREDIT IN WHICH IT HAS AN INTEREST AS ANY LENDER AND
MAY EXERCISE THE SAME AS THOUGH IT WERE NOT THE AGENT, AND THE TERM "LENDER" OR
"LENDERS" SHALL, AT ANY TIME WHEN THE AGENT IS A LENDER, UNLESS THE CONTEXT
OTHERWISE INDICATES, INCLUDE THE AGENT IN ITS INDIVIDUAL CAPACITY.
THE AGENT
AND ITS AFFILIATES MAY ACCEPT DEPOSITS FROM, LEND MONEY TO, AND GENERALLY ENGAGE
IN ANY KIND OF TRUST, DEBT, EQUITY OR OTHER TRANSACTION, IN ADDITION TO THOSE
CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER FACILITY DOCUMENT, WITH THE BORROWER
OR ANY OF ITS SUBSIDIARIES IN WHICH THE BORROWER OR SUCH SUBSIDIARY IS NOT
RESTRICTED HEREBY FROM ENGAGING WITH ANY OTHER PERSON.
THE AGENT, IN ITS
INDIVIDUAL CAPACITY, IS NOT OBLIGATED TO REMAIN A LENDER.
11.11
LENDER CREDIT DECISION.
EACH
LENDER ACKNOWLEDGES THAT IT HAS, INDEPENDENTLY AND WITHOUT RELIANCE UPON THE
AGENT, THE ARRANGER OR ANY OTHER LENDER AND BASED ON THE FINANCIAL STATEMENTS
PREPARED BY THE BORROWER AND SUCH OTHER DOCUMENTS AND INFORMATION AS IT HAS
DEEMED APPROPRIATE, MADE ITS OWN CREDIT ANALYSIS AND DECISION TO ENTER INTO THIS
AGREEMENT AND THE OTHER FACILITY DOCUMENTS.
EACH LENDER ALSO ACKNOWLEDGES THAT
IT WILL, INDEPENDENTLY AND WITHOUT RELIANCE UPON THE AGENT, THE ARRANGER OR ANY
OTHER LENDER AND BASED ON SUCH DOCUMENTS AND INFORMATION AS IT SHALL DEEM
APPROPRIATE AT THE TIME, CONTINUE TO