ANY SUCH PERSON HEREAFTER TAKEN, INCLUDING ANY REVIEW OF THE AFFAIRS OF
BORROWER OR ANY OF ITS SUBSIDIARIES, SHALL BE DEEMED TO CONSTITUTE ANY
REPRESENTATION OR WARRANTY BY ADMINISTRATIVE AGENT TO ANY LENDER.
EACH LENDER
REPRESENTS TO ADMINISTRATIVE AGENT THAT (I) IT HAS, INDEPENDENTLY AND WITHOUT
RELIANCE UPON ADMINISTRATIVE AGENT OR ANY OTHER LENDER AND BASED ON SUCH
DOCUMENTS AND INFORMATION AS IT HAS DEEMED APPROPRIATE, MADE ITS OWN APPRAISAL
OF AND INVESTIGATION INTO THE BUSINESS, PROSPECTS, OPERATIONS, PROPERTIES,
FINANCIAL AND OTHER CONDITION AND CREDITWORTHINESS OF BORROWER AND ITS
SUBSIDIARIES AND MADE ITS OWN DECISION TO ENTER INTO THIS AGREEMENT AND EXTEND
CREDIT TO BORROWER HEREUNDER, AND (II) IT WILL, INDEPENDENTLY AND WITHOUT
RELIANCE UPON ADMINISTRATIVE AGENT OR ANY OTHER LENDER AND BASED ON SUCH
DOCUMENTS AND INFORMATION AS IT SHALL DEEM APPROPRIATE AT THE TIME, CONTINUE TO
MAKE ITS OWN CREDIT ANALYSIS, APPRAISALS AND DECISIONS IN TAKING OR NOT TAKING
ACTION HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS AND TO MAKE SUCH
INVESTIGATION AS IT DEEMS NECESSARY TO INFORM ITSELF AS TO THE BUSINESS,
PROSPECTS, OPERATIONS, PROPERTIES, FINANCIAL AND OTHER CONDITION AND
CREDITWORTHINESS OF LOAN PARTIES.
ADMINISTRATIVE AGENT SHALL HAVE NO DUTY OR
RESPONSIBILITY, EITHER INITIALLY OR ON A CONTINUING BASIS, TO PROVIDE ANY LENDER
WITH ANY CREDIT OR OTHER INFORMATION WITH RESPECT THERETO (OTHER THAN AS
EXPRESSLY REQUIRED HEREIN).
IF ADMINISTRATIVE AGENT SEEKS THE CONSENT OR
APPROVAL OF ANY LENDERS TO THE TAKING OR REFRAINING FROM TAKING OF ANY ACTION
HEREUNDER, THEN ADMINISTRATIVE AGENT SHALL SEND NOTICE THEREOF TO EACH LENDER.
ADMINISTRATIVE AGENT SHALL PROMPTLY NOTIFY EACH LENDER ANY TIME THAT REQUISITE
LENDERS HAVE INSTRUCTED ADMINISTRATIVE AGENT TO ACT OR REFRAIN FROM ACTING
PURSUANT HERETO.
(C)
RIGHTS, EXCULPATION, ETC.
ADMINISTRATIVE
AGENT, ITS AFFILIATES AND ANY OF THEIR OR THEIR AFFILIATES' RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS OR ATTORNEYS-IN-FACT SHALL NOT BE LIABLE TO ANY
LENDER FOR ANY ACTION TAKEN OR OMITTED BY THEM HEREUNDER OR UNDER ANY OF THE
LOAN DOCUMENTS, OR IN CONNECTION HEREWITH OR THEREWITH, EXCEPT THAT EACH SUCH
ENTITY SHALL BE LIABLE WITH RESPECT TO ITS OWN GROSS NEGLIGENCE, BAD FAITH OR
WILLFUL MISCONDUCT.
ADMINISTRATIVE AGENT SHALL NOT BE LIABLE FOR ANY
APPORTIONMENT OR DISTRIBUTION OF PAYMENTS MADE BY IT IN GOOD FAITH AND IF ANY
SUCH APPORTIONMENT OR DISTRIBUTION IS SUBSEQUENTLY DETERMINED TO HAVE BEEN MADE
IN ERROR, THE SOLE RECOURSE OF ANY LENDER TO WHOM PAYMENT WAS DUE BUT NOT MADE
SHALL BE TO RECOVER FROM OTHER
48
LENDERS ANY PAYMENT IN EXCESS OF THE AMOUNT TO WHICH THEY ARE DETERMINED TO BE
ENTITLED (AND SUCH OTHER LENDERS HEREBY AGREE TO RETURN TO SUCH LENDER ANY SUCH
ERRONEOUS PAYMENTS RECEIVED BY THEM).
IN PERFORMING ITS FUNCTIONS AND DUTIES
HEREUNDER, ADMINISTRATIVE AGENT SHALL EXERCISE THE SAME CARE WHICH IT WOULD IN
DEALING WITH LOANS FOR ITS OWN ACCOUNT, BUT ADMINISTRATIVE AGENT SHALL NOT BE
RESPONSIBLE TO ANY LENDER FOR ANY RECITALS, STATEMENTS, REPRESENTATIONS OR
WARRANTIES HEREIN OR FOR THE EXECUTION, EFFECTIVENESS, GENUINENESS, VALIDITY,
ENFORCEABILITY, COLLECTIBILITY OR SUFFICIENCY OF THIS AGREEMENT OR ANY OF THE