ARTICLE 10 ("INTERCREDITOR PROVISIONS RELATING TO CREDIT
AGREEMENT") OF THE SENIOR SECURED NOTE INDENTURE AND TO TAKE SUCH ACTION OR TO
REFRAIN FROM TAKING SUCH ACTION ON ITS BEHALF UNDER THE PROVISIONS OF ARTICLE 10
("INTERCREDITOR PROVISIONS RELATING TO CREDIT AGREEMENT") OF THE SENIOR SECURED
NOTE INDENTURE AND TO EXERCISE SUCH POWERS AS ARE SET FORTH HEREIN OR THEREIN,
TOGETHER WITH SUCH OTHER POWERS AS ARE REASONABLY INCIDENTAL THERETO.
(C)
NATURE OF DUTIES.
THE DUTIES OF AGENT
SHALL BE MECHANICAL AND ADMINISTRATIVE IN NATURE.
AGENT SHALL NOT HAVE BY
REASON OF THIS AGREEMENT A FIDUCIARY RELATIONSHIP IN RESPECT OF ANY LENDER.
NOTHING IN THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS, EXPRESS OR IMPLIED, IS
INTENDED TO OR SHALL BE CONSTRUED TO IMPOSE UPON AGENT ANY OBLIGATIONS IN
RESPECT OF THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS EXCEPT AS EXPRESSLY SET
FORTH HEREIN OR THEREIN.
EACH LENDER SHALL MAKE ITS OWN INDEPENDENT
INVESTIGATION OF THE FINANCIAL CONDITION AND AFFAIRS OF EACH CREDIT PARTY IN
CONNECTION WITH THE EXTENSION OF CREDIT HEREUNDER AND SHALL MAKE ITS OWN
APPRAISAL OF THE CREDITWORTHINESS OF EACH CREDIT PARTY, AND 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 AGENT SEEKS THE CONSENT OR APPROVAL OF ANY
LENDERS TO THE TAKING OR REFRAINING FROM TAKING ANY ACTION HEREUNDER, THEN AGENT
SHALL SEND NOTICE THEREOF TO EACH LENDER.
AGENT SHALL PROMPTLY NOTIFY EACH
LENDER ANY TIME THAT THE REQUISITE LENDERS OR REQUISITE REVOLVING LENDERS HAVE
INSTRUCTED AGENT TO ACT OR REFRAIN FROM ACTING PURSUANT HERETO.
(D)
RIGHTS, EXCULPATION, ETC.
NEITHER AGENT NOR
ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS SHALL 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 AGENT SHALL
BE LIABLE TO THE EXTENT OF ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS
DETERMINED BY A FINAL NON-APPEALABLE ORDER BY A COURT OF COMPETENT
JURISDICTION.
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 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 NO EVENT SHALL AGENT
BE LIABLE FOR PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR OTHER
SIMILAR DAMAGES.
IN PERFORMING ITS FUNCTIONS AND DUTIES HEREUNDER, AGENT SHALL
EXERCISE THE SAME CARE WHICH IT WOULD IN DEALING WITH LOANS FOR ITS OWN ACCOUNT,
BUT NEITHER AGENT NOR ANY OF ITS AGENTS OR REPRESENTATIVES SHALL BE RESPONSIBLE
TO ANY LENDER FOR ANY RECITALS, STATEMENTS, REPRESENTATIONS OR WARRANTIES