OBLIGATIONS OR
SWAP OBLIGATIONS, AS THE CASE MAY BE, HAVE NOT BEEN PAID IN FULL TO RECEIVE AN
AMOUNT EQUAL TO SUCH EXCESS AMOUNT MULTIPLIED BY A FRACTION THE NUMERATOR OF
WHICH IS THE UNPAID TERM LOAN OBLIGATIONS OR SWAP OBLIGATIONS, AS THE CASE MAY
BE, OF SUCH FINANCE PARTY AND THE DENOMINATOR OF WHICH IS THE UNPAID TERM LOAN
OBLIGATIONS OR SWAP OBLIGATIONS, AS THE CASE MAY BE, OF ALL FINANCE PARTIES
ENTITLED TO SUCH DISTRIBUTION.
(C)
RELIANCE BY COLLATERAL AGENT.
FOR PURPOSES OF APPLYING PAYMENTS
RECEIVED IN ACCORDANCE WITH THIS SECTION 8.03, THE COLLATERAL AGENT SHALL BE
ENTITLED TO RELY UPON (I) THE ADMINISTRATIVE AGENT AND (II) THE REPRESENTATIVE,
IF ANY, FOR THE SWAP CREDITORS FOR A DETERMINATION (WHICH THE ADMINISTRATIVE
AGENT, EACH REPRESENTATIVE FOR ANY SWAP CREDITOR AND THE FINANCE PARTIES AGREE
(OR SHALL AGREE) TO PROVIDE UPON REQUEST OF THE COLLATERAL AGENT) OF THE
OUTSTANDING TERM LOAN OBLIGATIONS AND SWAP OBLIGATIONS OWED TO THE AGENTS,
THE
LENDERS OR THE SWAP CREDITORS, AS THE CASE
92
MAY BE.
UNLESS IT HAS ACTUAL KNOWLEDGE (INCLUDING BY WAY OF WRITTEN NOTICE FROM
A SWAP CREDITOR OR ANY REPRESENTATIVES THEREOF) TO THE CONTRARY, THE COLLATERAL
AGENT, IN ACTING HEREUNDER, SHALL BE ENTITLED TO ASSUME THAT NO SWAP AGREEMENTS
ARE IN EXISTENCE.
ARTICLE IX
AGENCY PROVISIONS
SECTION 9.01
APPOINTMENT AND AUTHORIZATION OF THE ADMINISTRATIVE AGENT.
(A)
EACH LENDER HEREBY IRREVOCABLY APPOINTS, DESIGNATES AND AUTHORIZES
THE ADMINISTRATIVE AGENT TO TAKE SUCH ACTION ON ITS BEHALF UNDER THE PROVISIONS
OF THIS AGREEMENT AND EACH OTHER TERM LOAN DOCUMENT AND TO EXERCISE SUCH POWERS
AND PERFORM SUCH DUTIES AS ARE EXPRESSLY DELEGATED TO IT BY THE TERMS OF THIS
AGREEMENT OR ANY OTHER TERM LOAN DOCUMENT, TOGETHER WITH SUCH POWERS AS ARE
REASONABLY INCIDENTAL THERETO.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY
CONTAINED ELSEWHERE HEREIN OR IN ANY OTHER TERM LOAN 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 OR PARTICIPANT, AND NO
IMPLIED COVENANTS, FUNCTIONS, RESPONSIBILITIES, DUTIES, OBLIGATIONS OR
LIABILITIES SHALL BE READ INTO THIS AGREEMENT OR ANY OTHER TERM LOAN DOCUMENT OR
OTHERWISE EXIST AGAINST THE ADMINISTRATIVE AGENT.
WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING SENTENCE, THE USE OF THE TERM "AGENT" HEREIN AND IN
THE OTHER TERM LOAN DOCUMENTS WITH REFERENCE TO THE ADMINISTRATIVE AGENT IS NOT
INTENDED TO CONNOTE ANY FIDUCIARY OR OTHER IMPLIED (OR EXPRESS) OBLIGATIONS
ARISING UNDER AGENCY DOCTRINE OF ANY APPLICABLE LAW.
INSTEAD, SUCH TERM IS USED
MERELY AS A MATTER OF MARKET CUSTOM, AND IS INTENDED TO CREATE OR REFLECT ONLY
AN ADMINISTRATIVE RELATIONSHIP BETWEEN INDEPENDENT CONTRACTING PARTIES.
(B)
WITHOUT LIMITING THE GENERALITY OF SECTION 9.01(A), EACH LENDER
HEREBY IRREVOCABLY APPOINTS, DESIGNATES AND AUTHORIZES THE ADMINISTRATIVE AGENT
TO SIGN THE INTERCREDITOR AGREEMENT ON BEHALF OF SUCH LENDER AND ACKNOWLEDGES
AND AGREES THAT (I) BANK OF AMERICA OR AN AFFILIATE THEREOF MAY (BUT IS NOT
REQUIRED TO) ACT AS "REVOLVING CREDIT