UNDER THE TERMS OF ANY CREDIT AGREEMENT OR
OTHER FINANCING AGREEMENT TO WHICH ANY MEMBER OF THE COMPANY GROUP IS A PARTY,
SUCH OBLIGATIONS SHALL ACCRUE AS PROVIDED HEREIN, BUT PAYMENT OR REIMBURSEMENT
THEREOF SHALL BE DEFERRED UNTIL SUCH TIME AS (I) SUCH PAYMENTS ARE NO LONGER
PROHIBITED UNDER THE TERMS OF THE APPLICABLE AGREEMENT, OR (II) THE LOAN AMOUNT
DUE THEREUNDER IS REPAID IN FULL.
IN THE EVENT OF THE LIQUIDATION OF THE
COMPANY, ALL AMOUNTS DUE MANAGER UNDER THIS AGREEMENT SHALL BE PAID TO MANAGER
BEFORE ANY LIQUIDATING DISTRIBUTIONS OR SIMILAR PAYMENTS ARE MADE TO
STOCKHOLDERS OF THE COMPANY.
5.
INFORMATION.
THE COMPANY WILL, AND WILL CAUSE EACH MEMBER OF THE
COMPANY GROUP TO, USE ITS REASONABLE BEST EFFORTS TO FURNISH, OR TO CAUSE THEIR
RESPECTIVE SUBSIDIARIES, EMPLOYEES AND AGENTS TO FURNISH, MANAGER WITH SUCH
INFORMATION (THE "INFORMATION") AS MANAGER REASONABLY BELIEVES APPROPRIATE TO
ITS ENGAGEMENT HEREUNDER.
THE COMPANY ACKNOWLEDGES AND AGREES THAT (A) MANAGER
WILL RELY ON THE INFORMATION AND ON INFORMATION AVAILABLE FROM GENERALLY
RECOGNIZED PUBLIC SOURCES IN PERFORMING THE CONSULTING SERVICES AND THE
TRANSACTION SERVICES AND (B) MANAGER DOES NOT ASSUME RESPONSIBILITY FOR THE
ACCURACY OR COMPLETENESS OF THE INFORMATION AND SUCH OTHER INFORMATION.
6.
INDEPENDENT CONTRACTOR STATUS.
THE PARTIES ACKNOWLEDGE AND AGREE
THAT MANAGER SHALL PERFORM THE CONSULTING SERVICES AND THE TRANSACTION SERVICES
AS AN INDEPENDENT CONTRACTOR, RETAINING CONTROL OVER AND RESPONSIBILITY FOR ITS
OWN OPERATIONS AND PERSONNEL AND THOSE OF ITS CONTROLLED AFFILIATES.
THE
COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT MANAGER MAY, IN ITS SOLE
DISCRETION, REMOVE OR SUBSTITUTE ANY OF THE MEMBERS OF, OR ADD MEMBERS TO, THE
TEAM OF PROFESSIONAL EMPLOYEES OF MANAGER AND ITS AFFILIATES THAT WILL BE
PROVIDING SERVICES PURSUANT TO THIS AGREEMENT, AND THAT ANY SUCH REMOVAL,
SUBSTITUTION OR ADDITION SHALL NOT IN ANY WAY MODIFY OR AFFECT ANY OF THE
OBLIGATIONS OF THE COMPANY HEREUNDER, INCLUDING, WITHOUT LIMITATION, ITS
OBLIGATION TO PAY THE ANY FEE OR REIMBURSE ANY EXPENSES.
NONE OF MANAGER AND
ITS AFFILIATES AND THEIR RESPECTIVE EMPLOYEES AND AGENTS SHALL, SOLELY BY VIRTUE
OF THIS AGREEMENT OR THE ARRANGEMENTS HEREUNDER, BE CONSIDERED EMPLOYEES OR
AGENTS OF ANY MEMBER OF THE COMPANY GROUP, NOR SHALL ANY OF THEM HAVE AUTHORITY
HEREUNDER TO CONTRACT IN THE NAME OF OR BIND ANY MEMBER OF THE COMPANY GROUP,
EXCEPT (I) TO THE EXTENT THAT ANY PROFESSIONAL EMPLOYEE OF MANAGER OR ANY OF ITS
SUBSIDIARIES MAY BE SERVING AS A DIRECTOR OR AN OFFICER OF ANY MEMBER OF THE
COMPANY GROUP OR (II) AS EXPRESSLY AGREED TO IN WRITING BY SUCH MEMBER OF THE
COMPANY GROUP.
ANY DUTIES OF MANAGER ARISING OUT OF ITS ENGAGEMENT TO PERFORM
SERVICES HEREUNDER SHALL BE OWED SOLELY TO THE MEMBERS OF THE COMPANY GROUP.
5
7.
LIMITATION ON LIABILITY.
EXCEPT IN CASES OF GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT, MANAGER, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE
EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS, CONSULTANTS, MEMBERS, STOCKHOLDERS OR
AFFILIATES SHALL HAVE NO LIABILITY OF ANY KIND WHATSOEVER TO ANY MEMBER OF THE
COMPANY GROUP FOR ANY DAMAGES,