CAUSED BY SUCH AGENT'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
EACH AGENT SHALL BE ENTITLED TO REFRAIN FROM
ANY ACT OR THE TAKING OF ANY ACTION (INCLUDING THE FAILURE TO TAKE AN ACTION) IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR FROM THE
EXERCISE OF ANY POWER, DISCRETION OR AUTHORITY VESTED IN IT HEREUNDER OR
THEREUNDER UNLESS AND UNTIL SUCH AGENT SHALL HAVE RECEIVED INSTRUCTIONS IN
RESPECT THEREOF FROM THE REQUISITE LENDERS (OR SUCH OTHER THE LENDERS AS MAY BE
REQUIRED TO GIVE SUCH INSTRUCTIONS UNDER SECTION 9.6) AND, UPON RECEIPT OF SUCH
INSTRUCTIONS FROM THE REQUISITE LENDERS (OR SUCH OTHER LENDERS, AS THE CASE MAY
BE), SUCH AGENT SHALL BE ENTITLED TO ACT OR (WHERE SO INSTRUCTED) REFRAIN FROM
ACTING, OR TO EXERCISE SUCH POWER, DISCRETION OR AUTHORITY, IN ACCORDANCE WITH
SUCH INSTRUCTIONS.
WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, (I)
EACH OF AGENT SHALL BE ENTITLED TO RELY, AND SHALL BE FULLY PROTECTED IN
RELYING, UPON ANY COMMUNICATION, INSTRUMENT OR DOCUMENT BELIEVED BY IT TO BE
GENUINE AND CORRECT AND TO HAVE BEEN SIGNED OR SENT BY THE PROPER PERSON OR
PERSONS, AND SHALL BE ENTITLED TO RELY AND SHALL BE PROTECTED IN RELYING ON
OPINIONS AND JUDGMENTS OF ATTORNEYS (WHO MAY BE ATTORNEYS FOR THE CREDIT PARTIES
AND THEIR SUBSIDIARIES), ACCOUNTANTS, EXPERTS AND OTHER PROFESSIONAL ADVISORS
SELECTED BY IT; AND (II) NO LENDER SHALL HAVE ANY RIGHT OF ACTION WHATSOEVER
AGAINST ANY AGENT AS A RESULT OF SUCH AGENT ACTING OR (WHERE SO INSTRUCTED)
REFRAINING FROM ACTING UNDER THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
IN ACCORDANCE WITH THE INSTRUCTIONS OF THE REQUISITE LENDERS (OR SUCH OTHER
LENDERS AS MAY BE REQUIRED TO GIVE SUCH INSTRUCTIONS UNDER SECTION 9.6).
D.
AGENTS ENTITLED TO ACT AS LENDERS.
THE
AGENCY HEREBY CREATED SHALL IN NO WAY IMPAIR OR AFFECT ANY OF THE RIGHTS AND
POWERS OF, OR IMPOSE ANY DUTIES OR OBLIGATIONS UPON, ANY
92
AGENT IN ITS INDIVIDUAL CAPACITY AS A LENDER HEREUNDER.
WITH RESPECT TO ITS
PARTICIPATION IN THE LOANS AND THE LETTERS OF CREDIT, EACH AGENT SHALL HAVE THE
SAME RIGHTS AND POWERS HEREUNDER AS ANY OTHER LENDER AND MAY EXERCISE THE SAME
AS THOUGH IT WERE NOT PERFORMING THE DUTIES AND FUNCTIONS DELEGATED TO IT
HEREUNDER, AND THE TERM "LENDER" SHALL, UNLESS THE CONTEXT CLEARLY OTHERWISE
INDICATES, INCLUDE EACH AGENT IN ITS INDIVIDUAL CAPACITY.
ANY AGENT AND ITS
AFFILIATES MAY ACCEPT DEPOSITS FROM, LEND MONEY TO, OWN SECURITIES OF, AND
GENERALLY ENGAGE IN ANY KIND OF BANKING, TRUST, FINANCIAL ADVISORY OR OTHER
BUSINESS WITH THE CREDIT PARTIES OR ANY OF THEIR AFFILIATES AS IF IT WERE NOT
PERFORMING THE DUTIES SPECIFIED HEREIN, AND MAY ACCEPT FEES AND OTHER
CONSIDERATION FROM THE CREDIT PARTIES FOR SERVICES IN CONNECTION WITH THIS
AGREEMENT AND OTHERWISE WITHOUT HAVING TO ACCOUNT FOR THE SAME TO LENDERS.
NO
AGENT SHALL HAVE ANY DUTY TO DISCLOSE ANY INFORMATION OBTAINED OR RECEIVED BY IT
OR ANY OF ITS AFFILIATES RELATING TO THE BORROWER OR ANY