AGENT, THE LENDERS AND THEIR REPRESENTATIVES,
ASSIGNS AND SUCCESSORS, (II) WAS RECEIVED BY ANY OF THEM LAWFULLY FROM A THIRD
PARTY THROUGH NO BREACH OF ANY OBLIGATION OF CONFIDENTIALITY OWED TO THE
DISCLOSING PARTY OR (III) WAS CREATED BY A PARTY INDEPENDENTLY OF ITS ACCESS TO
OR USE OF THE OTHER PARTY'S CONFIDENTIAL INFORMATION.
SECTION 16.
AGENT, THE LENDER GROUP.
16.1.
APPOINTMENT AND AUTHORIZATION OF AGENT.
EACH
LENDER HEREBY DESIGNATES AND APPOINTS BROWN BROTHERS HARRIMAN & CO. ("BBH") AS
ITS AGENT AND REPRESENTATIVE UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
AND EACH LENDER HEREBY IRREVOCABLY AUTHORIZES AGENT TO TAKE SUCH ACTION ON ITS
BEHALF UNDER THE PROVISIONS OF THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT AND
TO EXERCISE SUCH POWERS AND PERFORM SUCH DUTIES AS ARE EXPRESSLY DELEGATED TO
AGENT BY THE TERMS OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, TOGETHER WITH
SUCH POWERS AS ARE REASONABLY INCIDENTAL THERETO.
AGENT AGREES TO ACT AS SUCH
ON THE EXPRESS CONDITIONS CONTAINED IN THIS SECTION 16.
THE PROVISIONS OF THIS
SECTION 16 ARE SOLELY FOR THE BENEFIT OF AGENT AND THE LENDERS, AND BORROWER
SHALL HAVE NO RIGHTS AS A THIRD PARTY BENEFICIARY OF ANY OF THE PROVISIONS
CONTAINED HEREIN.
ANY PROVISION TO THE CONTRARY CONTAINED ELSEWHERE IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT NOTWITHSTANDING, AGENT SHALL NOT HAVE
ANY DUTIES OR RESPONSIBILITIES, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN, NOR
SHALL AGENT HAVE OR BE DEEMED TO
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HAVE ANY FIDUCIARY RELATIONSHIP WITH ANY LENDER, AND NO IMPLIED COVENANTS,
FUNCTIONS, RESPONSIBILITIES, DUTIES, OBLIGATIONS OR LIABILITIES SHALL BE READ
INTO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR OTHERWISE EXIST AGAINST AGENT;
IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT THE USE OF THE WORD "AGENT" IS FOR
CONVENIENCE ONLY, THAT BBH IS MERELY THE REPRESENTATIVE OF THE LENDERS, AND ONLY
HAS THE CONTRACTUAL DUTIES SET FORTH HEREIN.
EXCEPT AS EXPRESSLY OTHERWISE
PROVIDED IN THIS AGREEMENT, AGENT SHALL HAVE AND MAY USE ITS SOLE DISCRETION
WITH RESPECT TO EXERCISING OR REFRAINING FROM EXERCISING ANY DISCRETIONARY
RIGHTS OR TAKING OR REFRAINING FROM TAKING ANY ACTIONS THAT AGENT EXPRESSLY IS
ENTITLED TO TAKE OR ASSERT UNDER OR PURSUANT TO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OR OF ANY
OTHER PROVISION OF THE LOAN DOCUMENTS THAT PROVIDES RIGHTS OR POWERS TO AGENT,
LENDERS AGREE THAT AGENT SHALL HAVE THE RIGHT TO EXERCISE THE FOLLOWING POWERS
AS LONG AS THIS AGREEMENT REMAINS IN EFFECT:
(A) MAINTAIN, IN ACCORDANCE WITH
ITS CUSTOMARY BUSINESS PRACTICES, LEDGERS AND RECORDS REFLECTING THE STATUS OF
THE OBLIGATIONS, ANY COLLATERAL, AND RELATED MATTERS, (B) EXECUTE OR FILE ANY
AND ALL FINANCING OR SIMILAR STATEMENTS OR NOTICES, AMENDMENTS, RENEWALS,
SUPPLEMENTS, DOCUMENTS, INSTRUMENTS, PROOFS OF CLAIM, NOTICES AND OTHER WRITTEN
AGREEMENTS WITH RESPECT TO THE LOAN DOCUMENTS, (C) FUND LOANS, FOR ITSELF OR ON
BEHALF OF LENDERS AS PROVIDED IN THE LOAN DOCUMENTS, (D) EXCLUSIVELY RECEIVE,
APPLY, AND DISTRIBUTE THE COLLECTIONS AS PROVIDED IN THE LOAN DOCUMENTS, (E)
OPEN AND MAINTAIN SUCH BANK