HEREUNDER AND IN
RECOGNITION OF THE DIFFICULTIES THAT MAY CONFRONT ANY ADVISOR WHO DESIRES AND
ENDEAVORS FULLY TO SATISFY SUCH ADVISOR'S DUTIES IN DETERMINING THE FULL SCOPE
OF SUCH DUTIES IN ANY PARTICULAR SITUATION, THE PROVISIONS OF THIS
SECTION 5(B) ARE SET FORTH TO REGULATE, DEFINE AND GUIDE THE CONDUCT OF CERTAIN
AFFAIRS OF THE COMPANIES AS THEY MAY INVOLVE SPONSOR. EXCEPT AS SPONSOR MAY
OTHERWISE AGREE IN WRITING AFTER THE DATE HEREOF:
(I)
SPONSOR AND ITS AFFILIATES WILL HAVE THE RIGHT:
(A) TO DIRECTLY OR
INDIRECTLY ENGAGE IN ANY BUSINESS (INCLUDING, WITHOUT LIMITATION, ANY BUSINESS
ACTIVITIES OR LINES OF BUSINESS THAT ARE THE SAME AS OR SIMILAR TO THOSE PURSUED
BY, OR COMPETITIVE WITH,
4
ANY OF THE COMPANIES AND THEIR SUBSIDIARIES), (B) TO DIRECTLY OR INDIRECTLY DO
BUSINESS WITH ANY CLIENT OR CUSTOMER OF ANY OF THE COMPANIES AND THEIR
SUBSIDIARIES, (C) TO TAKE ANY OTHER ACTION THAT SPONSOR BELIEVES IN GOOD FAITH
IS NECESSARY OR APPROPRIATE TO FULFILL ITS OBLIGATIONS AS DESCRIBED IN THE FIRST
SENTENCE OF THIS SECTION 5(B), AND (D) NOT TO PRESENT POTENTIAL TRANSACTIONS,
MATTERS OR BUSINESS OPPORTUNITIES TO ANY OF THE COMPANIES OR ANY OF THEIR
SUBSIDIARIES, AND TO PURSUE, DIRECTLY OR INDIRECTLY, ANY SUCH OPPORTUNITY FOR
ITSELF, AND TO DIRECT ANY SUCH OPPORTUNITY TO ANOTHER PERSON.
(II)
SPONSOR AND ITS OFFICERS, EMPLOYEES, PARTNERS, MEMBERS, OTHER CLIENTS,
AFFILIATES AND OTHER ASSOCIATED ENTITIES WILL HAVE NO DUTY (CONTRACTUAL OR
OTHERWISE) TO COMMUNICATE OR PRESENT ANY CORPORATE OPPORTUNITIES TO THE
COMPANIES OR ANY OF THEIR AFFILIATES OR TO REFRAIN FROM ANY ACTION SPECIFIED IN
SECTION 5(B)(I), AND THE COMPANIES ON THEIR OWN BEHALF AND ON BEHALF OF THEIR
AFFILIATES, HEREBY RENOUNCE AND WAIVE ANY RIGHT TO REQUIRE SPONSOR OR ANY OF ITS
AFFILIATES TO ACT IN A MANNER INCONSISTENT WITH THE PROVISIONS OF THIS
SECTION 5(B).
(III)
NEITHER SPONSOR NOR ANY OFFICER, DIRECTOR, EMPLOYEE, PARTNER, MEMBER,
STOCKHOLDER, AFFILIATE OR ASSOCIATED ENTITY THEREOF WILL BE LIABLE TO THE
COMPANIES OR ANY OF THEIR AFFILIATES FOR BREACH OF ANY DUTY (CONTRACTUAL OR
OTHERWISE) BY REASON OF ANY ACTIVITIES OR OMISSIONS OF THE TYPES REFERRED TO IN
THIS SECTION 5(B) OR OF ANY SUCH PERSON'S PARTICIPATION THEREIN.
(C)
LIMITATION OF LIABILITY. IN NO EVENT WILL SPONSOR OR ANY OF ITS AFFILIATES
BE LIABLE TO THE COMPANIES OR ANY OF THEIR AFFILIATES FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS
OR SAVINGS, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, OR FOR ANY THIRD PARTY
CLAIMS (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE), RELATING TO THE SERVICES
TO BE PROVIDED BY SPONSOR HEREUNDER.
6.
ASSIGNMENT, ETC. EXCEPT AS PROVIDED BELOW, NO PARTY HERETO HAS
THE RIGHT TO ASSIGN THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF THE
OTHER PARTIES. NOTWITHSTANDING THE FOREGOING, (A) SPONSOR MAY ASSIGN ALL OR PART
OF ITS RIGHTS AND OBLIGATIONS HEREUNDER TO ANY AFFILIATE OF SPONSOR THAT
PROVIDES SERVICES SIMILAR TO THOSE CALLED FOR BY THIS AGREEMENT, IN WHICH EVENT
SPONSOR WILL BE RELEASED OF ALL OF ITS RIGHTS AND