EXCEPT THOSE EXPRESSLY SET FORTH IN THE
TRANSACTION DOCUMENTS.
NEITHER COLLATERAL AGENT NOR, IF COLLATERAL AGENT IS AN
ENTITY,
ANY OF ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, PARTNERS, EMPLOYEES
OR AGENTS, WILL BE LIABLE FOR ANY ACTION TAKEN OR OMITTED BY IT AS SUCH
HEREUNDER OR IN CONNECTION HEREWITH, UNLESS CAUSED BY OR RESULTING FROM ITS OR
THEIR GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUDULENT ACT.
THE DUTIES OF
COLLATERAL AGENT WILL BE MECHANICAL AND MINISTERIAL IN NATURE.
COLLATERAL AGENT
WILL NOT HAVE, BY REASON OF THIS AGREEMENT, A FIDUCIARY RELATIONSHIP IN RESPECT
OF ANY PURCHASER. NOTHING IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO
OR WILL BE SO CONSTRUED AS TO IMPOSE UPON COLLATERAL AGENT ANY OBLIGATIONS IN
RESPECT OF THIS AGREEMENT AND THE SECURITY AGREEMENT, EXCEPT AS EXPRESSLY SET
FORTH HEREIN AND THEREIN.
6.3
LACK OF RELIANCE ON COLLATERAL AGENT.
6.3.1
INDEPENDENTLY AND WITHOUT RELIANCE ON COLLATERAL AGENT, EACH
PURCHASER, TO THE EXTENT IT DEEMS APPROPRIATE, HAS MADE AND WILL CONTINUE TO
MAKE (I) ITS OWN INDEPENDENT INVESTIGATION OF THE FINANCIAL CONDITION AND
AFFAIRS OF ISSUER IN CONNECTION WITH THE TAKING OR NOT TAKING OF ANY ACTION IN
CONNECTION HEREWITH AND WITH THE OTHER TRANSACTION DOCUMENTS, AND (II) ITS OWN
APPRAISAL OF THE CREDITWORTHINESS OF ISSUER, AND, EXCEPT AS EXPRESSLY PROVIDED
IN THIS AGREEMENT AND THE SECURITY AGREEMENT, COLLATERAL AGENT WILL HAVE NO DUTY
OR RESPONSIBILITY, EITHER INITIALLY OR ON A CONTINUING BASIS, TO PROVIDE ANY
PURCHASER WITH ANY CREDIT OR OTHER INFORMATION WITH RESPECT THERETO, WHETHER
COMING INTO ITS POSSESSION BEFORE OR AFTER THE DELIVERY OF THE NOTES AND
WARRANTS.
6.3.2
COLLATERAL AGENT WILL NOT BE RESPONSIBLE TO ANY PURCHASER FOR ANY
RECITALS, STATEMENTS, INFORMATION, REPRESENTATIONS OR WARRANTIES HEREIN OR IN
ANY DOCUMENT, CERTIFICATE OR OTHER WRITING DELIVERED IN CONNECTION HEREWITH OR
IN CONNECTION WITH THE SECURITY AGREEMENT OR COLLATERAL ASSIGNMENTS OR FOR THE
EXECUTION, EFFECTIVENESS, GENUINENESS, VALIDITY, ENFORCEABILITY, COLLECTABILITY,
PRIORITY OR SUFFICIENCY OF THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS, OR
THE FINANCIAL CONDITION OF ISSUER, OR BE REQUIRED TO MAKE ANY INQUIRY CONCERNING
EITHER THE PERFORMANCE OR OBSERVANCE OF ANY OF THE TERMS, PROVISIONS OR
CONDITIONS OF THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS, OR THE
FINANCIAL CONDITION OF ISSUER, OR THE EXISTENCE OR POSSIBLE EXISTENCE OF ANY OR
EVENT OF DEFAULT OR OTHER BREACH OR DEFAULT BY ISSUER.
6.4
CERTAIN RIGHTS OF COLLATERAL AGENT.
IF COLLATERAL AGENT REQUESTS
INSTRUCTIONS FROM PURCHASERS WITH RESPECT TO ANY ACT OR ACTION (INCLUDING
FORBEARANCE FROM TAKING ACTION) IN CONNECTION WITH THIS AGREEMENT OR THE
SECURITY AGREEMENT, THEN COLLATERAL AGENT WILL BE ENTITLED TO ACT OR REFRAIN
FROM SUCH ACT OR TAKING SUCH ACTION UNLESS AND UNTIL COLLATERAL AGENT HAS
RECEIVED INSTRUCTIONS FROM PURCHASERS, AND COLLATERAL AGENT WILL NOT INCUR
LIABILITY TO ANY PERSON
24
BY REASON OF SO REFRAINING.
WITHOUT LIMITING THE FOREGOING, NO PURCHASER WILL
HAVE ANY RIGHT OF ACTION WHATSOEVER AGAINST COLLATERAL AGENT AS A RESULT OF
COLLATERAL AGENT'S ACTING OR REFRAINING FROM ACTING HEREUNDER IN ACCORDANCE WITH
THE INSTRUCTIONS OF PURCHASERS.
6.5
RELIANCE BY COLLATERAL