REQUEST OF THE ADMINISTRATIVE AGENT, PROMPTLY PAY ANY AMOUNT
EXPENDED BY THE ADMINISTRATIVE AGENT OR THE LENDERS IN CONNECTION WITH SUCH
PERFORMANCE OR ATTEMPTED PERFORMANCE TO THE ADMINISTRATIVE AGENT AT THE
PRINCIPAL OFFICE, TOGETHER WITH INTEREST THEREON AT THE APPLICABLE DEFAULT RATE
FROM AND INCLUDING THE DATE OF SUCH EXPENDITURE TO BUT EXCLUDING THE DATE SUCH
EXPENDITURE IS PAID IN FULL.
NOTWITHSTANDING THE FOREGOING, IT IS EXPRESSLY
AGREED THAT NEITHER THE ADMINISTRATIVE AGENT NOR ANY LENDER SHALL HAVE ANY
LIABILITY OR RESPONSIBILITY FOR THE PERFORMANCE OF ANY OBLIGATION OF F.Y.I. OR
ANY OF ITS SUBSIDIARIES OR ANY OTHER LOAN PARTY UNDER THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS.
ARTICLE 12
THE ADMINISTRATIVE AGENT
SECTION 12.1
APPOINTMENT, POWERS AND IMMUNITIES. EACH LENDER HEREBY
IRREVOCABLY APPOINTS AND AUTHORIZES BANK OF AMERICA TO ACT AS ITS AGENT UNDER
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS WITH SUCH POWERS AND DISCRETION AS
ARE SPECIFICALLY DELEGATED TO THE ADMINISTRATIVE AGENT BY THE TERMS OF THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, TOGETHER WITH SUCH OTHER POWERS AS ARE
REASONABLY INCIDENTAL THERETO.
THE ADMINISTRATIVE AGENT (WHICH TERM AS USED IN
THIS SENTENCE AND IN SECTION 12.5 SHALL INCLUDE ITS AFFILIATES (INCLUDING BANC
OF AMERICA SECURITIES LLC) AND ITS OWN AND ITS AFFILIATES' OFFICERS, DIRECTORS,
EMPLOYEES, AND AGENTS):
(A) SHALL NOT HAVE ANY DUTIES OR RESPONSIBILITIES
EXCEPT THOSE EXPRESSLY SET FORTH IN THE LOAN DOCUMENTS AND SHALL NOT BE A
TRUSTEE OR FIDUCIARY FOR ANY LENDER; (B) SHALL NOT BE RESPONSIBLE TO THE LENDERS
FOR ANY RECITAL, STATEMENT, REPRESENTATION, OR WARRANTY (WHETHER WRITTEN OR
ORAL) MADE IN OR IN CONNECTION WITH ANY LOAN DOCUMENT OR ANY CERTIFICATE OR
OTHER DOCUMENT REFERRED TO OR PROVIDED FOR IN, OR RECEIVED BY ANY OF THEM UNDER,
ANY LOAN DOCUMENT, OR FOR THE VALUE, VALIDITY, EFFECTIVENESS, GENUINENESS,
ENFORCEABILITY, OR SUFFICIENCY OF ANY LOAN DOCUMENT, OR ANY OTHER DOCUMENT
REFERRED TO OR PROVIDED FOR THEREIN OR FOR ANY FAILURE BY ANY LOAN PARTY OR ANY
OTHER PERSON TO PERFORM ANY OF ITS OBLIGATIONS THEREUNDER; (C) SHALL NOT BE
RESPONSIBLE FOR OR HAVE ANY DUTY TO ASCERTAIN, INQUIRE INTO, OR VERIFY THE
PERFORMANCE OR OBSERVANCE OF ANY COVENANTS OR AGREEMENTS BY ANY LOAN PARTY OR
THE SATISFACTION OF ANY CONDITION OR TO INSPECT THE PROPERTY (INCLUDING THE
BOOKS AND RECORDS) OF ANY LOAN PARTY OR ANY OF ITS AFFILIATES; (D) SHALL NOT BE
REQUIRED TO INITIATE OR CONDUCT ANY LITIGATION OR COLLECTION PROCEEDINGS UNDER
ANY LOAN DOCUMENT; AND (E) SHALL NOT BE RESPONSIBLE FOR ANY ACTION TAKEN OR
OMITTED TO BE TAKEN BY IT UNDER OR IN CONNECTION WITH ANY LOAN DOCUMENT, EXCEPT
FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
THE ADMINISTRATIVE AGENT
MAY EMPLOY AGENTS AND ATTORNEYS-IN-FACT AND SHALL NOT BE RESPONSIBLE FOR THE
NEGLIGENCE OR MISCONDUCT OF ANY SUCH AGENTS OR ATTORNEYS-IN-FACT SELECTED BY IT
WITH REASONABLE CARE.
SECTION 12.2
RELIANCE BY THE ADMINISTRATIVE AGENT.
THE ADMINISTRATIVE
AGENT SHALL BE ENTITLED TO RELY UPON ANY CERTIFICATION, NOTICE, INSTRUMENT,
WRITING, OR OTHER COMMUNICATION (INCLUDING, WITHOUT LIMITATION, ANY THEREOF BY