CAPACITY. SUCH PERSON AND ITS AFFILIATES MAY ACCEPT
DEPOSITS FROM, LEND MONEY TO, ACT AS THE FINANCIAL ADVISOR OR IN ANY OTHER
ADVISORY CAPACITY FOR AND GENERALLY ENGAGE IN ANY KIND OF BUSINESS WITH BORROWER
OR ANY SUBSIDIARY OR OTHER AFFILIATE THEREOF AS IF SUCH PERSON WERE NOT AN AGENT
HEREUNDER AND WITHOUT ANY DUTY TO ACCOUNT THEREFOR TO THE LENDERS.
SECTION 9.03
EXCULPATORY PROVISIONS. NO AGENT SHALL HAVE ANY DUTIES
OR OBLIGATIONS EXCEPT THOSE EXPRESSLY SET FORTH HEREIN AND IN THE OTHER LOAN
DOCUMENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NO AGENT:
(I)
SHALL BE SUBJECT TO ANY FIDUCIARY OR OTHER IMPLIED DUTIES, REGARDLESS
OF WHETHER A DEFAULT HAS OCCURRED AND IS CONTINUING;
(II)
SHALL HAVE ANY DUTY TO TAKE ANY DISCRETIONARY ACTION OR EXERCISE ANY
DISCRETIONARY POWERS, EXCEPT DISCRETIONARY RIGHTS AND POWERS EXPRESSLY
CONTEMPLATED HEREBY OR BY THE OTHER LOAN DOCUMENTS THAT SUCH AGENT IS REQUIRED
TO EXERCISE AS DIRECTED IN WRITING BY THE REQUIRED LENDERS (OR SUCH OTHER NUMBER
OR PERCENTAGE OF THE LENDERS AS SHALL BE EXPRESSLY PROVIDED FOR HEREIN OR IN THE
OTHER LOAN DOCUMENTS); PROVIDED THAT SUCH AGENT SHALL NOT BE REQUIRED TO TAKE
ANY ACTION THAT, IN ITS JUDGMENT OR THE JUDGMENT OF ITS COUNSEL, MAY EXPOSE SUCH
AGENT TO LIABILITY OR THAT IS CONTRARY TO ANY LOAN DOCUMENT OR APPLICABLE
REQUIREMENTS OF LAW; AND
(III)
SHALL, EXCEPT AS EXPRESSLY SET FORTH HEREIN AND IN THE OTHER LOAN
DOCUMENTS, HAVE ANY DUTY TO DISCLOSE, AND SHALL NOT BE LIABLE FOR THE FAILURE TO
DISCLOSE, ANY IN-
133
FORMATION RELATING TO BORROWER OR ANY OF ITS AFFILIATES THAT IS COMMUNICATED TO
OR OBTAINED BY THE PERSON SERVING AS SUCH AGENT OR ANY OF ITS AFFILIATES IN ANY
CAPACITY.
No Agent shall be liable for any action taken or not taken by it (x) with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as such Agent shall believe
in good faith shall be necessary, under the circumstances as provided in
Section 10.02) or (y) in the absence of its own gross negligence or willful
misconduct. No Agent shall be deemed to have knowledge of any Default unless and
until notice describing such Default is given to such Agent by Borrower, a
Lender or the Issuing Bank.
No Agent shall be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein
or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any condition
set forth