OR ANY PART THEREOF, HAS BEEN ENTERED; PROVIDED THAT NO SUCH
RESCISSION OR ANNULMENT SHALL EXTEND TO OR AFFECT ANY SUBSEQUENT EVENT OF
DEFAULT OR IMPAIR ANY RIGHT CONSEQUENT THEREON.
SECTION 8.04
APPLICATION OF PROCEEDS. ANY MONEYS RECEIVED BY THE
COLLATERAL AGENT AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT MAY BE HELD BY THE COLLATERAL AGENT AS COLLATERAL AND/OR, AT THE
DIRECTION OF THE ADMINISTRATIVE AGENT, MAY BE APPLIED IN ACCORDANCE WITH
SECTION 4.2 OF THE INTERCREDITOR AGREEMENT.
ARTICLE IX
THE AGENTS
SECTION 9.01
APPOINTMENT AND AUTHORITY. (A) EACH LENDER (IN ITS
CAPACITY AS LENDER AND ON BEHALF OF ITSELF AND ITS AFFILIATES AS A POTENTIAL
INTEREST RATE PROTECTION PROVIDER) HEREBY IRREVOCABLY APPOINTS, DESIGNATES AND
AUTHORIZES EACH AGENT TO TAKE SUCH ACTION ON ITS BEHALF UNDER THE PROVISIONS OF
THIS AGREEMENT AND EACH OTHER FINANCING DOCUMENT AND TO EXERCISE SUCH POWERS AND
PERFORM SUCH DUTIES AS ARE EXPRESSLY DELEGATED TO SUCH AGENT BY THE TERMS OF
THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT, TOGETHER WITH SUCH ACTIONS AS
ARE REASONABLY INCIDENTAL THERETO. THE PROVISIONS OF THIS ARTICLE IX ARE SOLELY
FOR THE BENEFIT OF THE AGENTS AND THE LENDERS, AND NEITHER THE BORROWER NOR ANY
OTHER PERSON SHALL HAVE RIGHTS AS A THIRD PARTY BENEFICIARY OF ANY OF SUCH
PROVISIONS.
(B)
EACH LENDER (IN ITS CAPACITY AS LENDER AND ON BEHALF OF ITSELF AND
ITS AFFILIATES AS A POTENTIAL INTEREST RATE PROTECTION PROVIDER) HEREBY APPOINTS
WESTLB AS ITS ADMINISTRATIVE AGENT UNDER AND FOR PURPOSES OF EACH FINANCING
DOCUMENT TO WHICH IT IS A PARTY. WESTLB HEREBY ACCEPTS THIS APPOINTMENT AND
AGREES TO ACT AS THE ADMINISTRATIVE AGENT FOR THE LENDERS IN ACCORDANCE WITH THE
TERMS OF THIS AGREEMENT. EACH LENDER APPOINTS AND AUTHORIZES THE ADMINISTRATIVE
AGENT TO ACT ON BEHALF OF SUCH LENDER UNDER
96
EACH FINANCING DOCUMENT TO WHICH IT IS A PARTY AND, IN THE ABSENCE OF OTHER
WRITTEN INSTRUCTIONS FROM THE REQUIRED LENDERS RECEIVED FROM TIME TO TIME BY THE
ADMINISTRATIVE AGENT (WITH RESPECT TO WHICH THE ADMINISTRATIVE AGENT AGREES THAT
IT WILL COMPLY, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 9.01 OR AS
OTHERWISE ADVISED BY COUNSEL), TO EXERCISE SUCH POWERS HEREUNDER AND THEREUNDER
AS ARE SPECIFICALLY DELEGATED TO OR REQUIRED OF THE ADMINISTRATIVE AGENT BY THE
TERMS HEREOF AND THEREOF, TOGETHER WITH SUCH POWERS AS MAY BE REASONABLY
INCIDENTAL THERETO. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED
ELSEWHERE IN ANY FINANCING DOCUMENT, THE ADMINISTRATIVE AGENT SHALL NOT HAVE ANY
DUTIES OR RESPONSIBILITIES EXCEPT THOSE EXPRESSLY SET FORTH HEREIN, NOR SHALL
THE ADMINISTRATIVE AGENT HAVE OR BE DEEMED TO HAVE ANY FIDUCIARY RELATIONSHIP
WITH ANY LENDER, AND NO IMPLIED COVENANTS, FUNCTIONS, RESPONSIBILITIES, DUTIES,
OBLIGATIONS OR LIABILITIES SHALL BE READ INTO ANY FINANCING DOCUMENT OR
OTHERWISE EXIST AGAINST THE ADMINISTRATIVE AGENT. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING SENTENCE, THE USE OF THE TERM "AGENT" IN THIS
AGREEMENT WITH REFERENCE TO THE ADMINISTRATIVE AGENT IS NOT INTENDED TO CONNOTE
ANY FIDUCIARY OR OTHER IMPLIED (OR EXPRESS) OBLIGATIONS ARISING UNDER AGENCY
DOCTRINE