of its
powers set forth therein or herein, together with such other powers that are
reasonably incidental thereto, shall be binding upon all of the Lenders.
16.16
Field Audits and Examination Reports; Confidentiality; Disclaimers
by Lenders; Other Reports and Information.
By becoming a party to this
Agreement, each Lender:
(A)
IS DEEMED TO HAVE REQUESTED THAT AGENT FURNISH SUCH LENDER,
PROMPTLY AFTER IT BECOMES AVAILABLE, A COPY OF EACH FIELD AUDIT OR EXAMINATION
REPORT RESPECTING BORROWER OR ITS SUBSIDIARIES (EACH A "REPORT" AND
COLLECTIVELY, "REPORTS") PREPARED BY OR AT THE REQUEST OF AGENT, AND AGENT SHALL
SO FURNISH EACH LENDER WITH SUCH REPORTS,
(B)
EXPRESSLY AGREES AND ACKNOWLEDGES THAT AGENT DOES NOT (I) MAKE ANY
REPRESENTATION OR WARRANTY AS TO THE ACCURACY OF ANY REPORT, AND (II) SHALL NOT
BE LIABLE FOR ANY INFORMATION CONTAINED IN ANY REPORT,
(C)
EXPRESSLY AGREES AND ACKNOWLEDGES THAT THE REPORTS ARE NOT
COMPREHENSIVE AUDITS OR EXAMINATIONS, THAT AGENT OR OTHER PARTY PERFORMING ANY
AUDIT OR EXAMINATION WILL INSPECT ONLY SPECIFIC INFORMATION REGARDING BORROWER
AND ITS SUBSIDIARIES AND WILL RELY SIGNIFICANTLY UPON BORROWER'S AND ITS
SUBSIDIARIES' BOOKS AND RECORDS, AS WELL AS ON REPRESENTATIONS OF BORROWER'S
PERSONNEL,
(D)
AGREES TO KEEP ALL REPORTS AND OTHER MATERIAL, NON-PUBLIC
INFORMATION REGARDING BORROWER AND ITS SUBSIDIARIES AND THEIR OPERATIONS,
ASSETS, AND EXISTING AND CONTEMPLATED BUSINESS PLANS IN A CONFIDENTIAL MANNER IN
ACCORDANCE WITH SECTION 18.9, AND
(E)
WITHOUT LIMITING THE GENERALITY OF ANY OTHER INDEMNIFICATION
PROVISION CONTAINED IN THIS AGREEMENT, AGREES: (I) TO HOLD AGENT AND ANY OTHER
LENDER PREPARING A REPORT HARMLESS FROM ANY ACTION THE INDEMNIFYING LENDER MAY
TAKE OR FAIL TO TAKE OR ANY CONCLUSION THE INDEMNIFYING LENDER MAY REACH OR DRAW
FROM ANY REPORT IN CONNECTION WITH ANY LOANS OR OTHER CREDIT ACCOMMODATIONS THAT
THE INDEMNIFYING LENDER HAS MADE OR MAY MAKE TO BORROWER, OR THE INDEMNIFYING
LENDER'S PARTICIPATION IN, OR THE INDEMNIFYING LENDER'S PURCHASE OF, A LOAN OR
LOANS OF BORROWER, AND (II) TO PAY AND PROTECT, AND INDEMNIFY, DEFEND AND HOLD
AGENT, AND ANY SUCH OTHER LENDER PREPARING A REPORT HARMLESS FROM AND AGAINST,
THE CLAIMS, ACTIONS, PROCEEDINGS, DAMAGES, COSTS, EXPENSES, AND OTHER AMOUNTS
(INCLUDING, ATTORNEYS FEES AND COSTS) INCURRED BY AGENT AND ANY SUCH OTHER
LENDER PREPARING A REPORT AS THE DIRECT OR INDIRECT RESULT OF ANY THIRD PARTIES
WHO MIGHT OBTAIN ALL OR PART OF ANY REPORT THROUGH THE INDEMNIFYING LENDER.
64
In addition to the foregoing: (A) any Lender may from time to time request of
Agent in writing that Agent provide to such Lender a copy of any report or
document provided by Borrower or its Subsidiaries to Agent that has not been
contemporaneously provided by Borrower or such Subsidiary to such Lender, and,
upon receipt of such request, Agent promptly shall provide a copy of same to
such Lender, (B) to the extent that Agent is entitled, under any provision of
the Loan Documents, to request additional reports or information from Borrower
or its Subsidiaries, any Lender may, from time to time, reasonably request Agent
to