NOT BE REQUIRED TO PROVIDE SUCH TERMINATION
STATEMENTS OR TO FILE THEM WITH ANY FILING OFFICE UNLESS AND UNTIL ALL
CONDITIONS TO THE TERMINATION OF THIS AGREEMENT AND THE PAYMENT AND PERFORMANCE
OF THE OBLIGATIONS ARE SATISFIED IN A MANNER ACCEPTABLE TO AGENT, IN ITS
PERMITTED DISCRETION.
XI.
AGENT PROVISIONS; SETTLEMENT
11.1
AGENT
(A)
APPOINTMENT.
EACH LENDER HEREBY DESIGNATES
AND APPOINTS CAPITALSOURCE AS THE ADMINISTRATIVE AGENT, PAYMENT AGENT AND
COLLATERAL AGENT UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND EACH
LENDER HEREBY IRREVOCABLY AUTHORIZES CAPITALSOURCE, AS AGENT FOR SUCH LENDER, TO
TAKE SUCH ACTION OR TO REFRAIN FROM TAKING SUCH ACTION ON ITS BEHALF UNDER THE
PROVISIONS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND TO EXERCISE SUCH
POWERS AND PERFORM SUCH DUTIES AS ARE DELEGATED TO AGENT BY THE TERMS OF THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, TOGETHER WITH SUCH OTHER POWERS AS ARE
REASONABLY
43
INCIDENTAL THERETO.
AGENT AGREES TO ACT AS SUCH ON THE CONDITIONS CONTAINED IN
THIS ARTICLE XI.
THE PROVISIONS OF THIS ARTICLE XI ARE SOLELY FOR THE BENEFIT
OF AGENT AND LENDERS, AND THE CREDIT PARTIES SHALL HAVE NO RIGHTS AS THIRD-PARTY
BENEFICIARIES OF ANY OF THE PROVISIONS OF THIS ARTICLE XI OTHER THAN
SECTION 11.1(H)(III).
AGENT MAY PERFORM ANY OF ITS DUTIES HEREUNDER, OR UNDER
THE LOAN DOCUMENTS, BY OR THROUGH ITS AGENTS, EMPLOYEES OR SUB-AGENTS.
(B)
NATURE OF DUTIES.
IN PERFORMING ITS
FUNCTIONS AND DUTIES UNDER THIS AGREEMENT, AGENT IS ACTING SOLELY ON BEHALF OF
LENDERS, AND ITS DUTIES ARE ADMINISTRATIVE IN NATURE, AND DOES NOT ASSUME AND
SHALL NOT BE DEEMED TO HAVE ASSUMED, ANY OBLIGATION TOWARD OR RELATIONSHIP OF
AGENCY OR TRUST WITH OR FOR LENDERS, OTHER THAN AS EXPRESSLY SET FORTH HEREIN
AND IN THE OTHER LOAN DOCUMENTS, OR THE CREDIT PARTIES.
AGENT SHALL HAVE NO
DUTIES, OBLIGATIONS OR RESPONSIBILITIES EXCEPT THOSE EXPRESSLY SET FORTH IN THIS
AGREEMENT OR IN THE OTHER LOAN DOCUMENTS.
AGENT SHALL NOT HAVE BY REASON OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT A FIDUCIARY RELATIONSHIP IN RESPECT OF
ANY LENDER.
EACH LENDER SHALL MAKE ITS OWN INDEPENDENT INVESTIGATION OF THE
FINANCIAL CONDITION AND AFFAIRS OF THE CREDIT PARTIES IN CONNECTION WITH THE
EXTENSION OF CREDIT HEREUNDER AND SHALL MAKE ITS OWN APPRAISAL OF THE
CREDITWORTHINESS OF THE CREDIT PARTIES.
EXCEPT FOR INFORMATION, NOTICES,
REPORTS AND OTHER DOCUMENTS EXPRESSLY REQUIRED TO BE FURNISHED TO LENDERS BY
AGENT HEREUNDER OR GIVEN TO AGENT FOR THE ACCOUNT OF OR WITH COPIES FOR LENDERS,
AGENT SHALL HAVE NO DUTY OR RESPONSIBILITY, EITHER INITIALLY OR ON A CONTINUING
BASIS, TO PROVIDE ANY LENDER WITH ANY CREDIT OR OTHER INFORMATION WITH RESPECT
THERETO, WHETHER COMING INTO ITS POSSESSION BEFORE THE CLOSING DATE OR AT ANY
TIME OR TIMES THEREAFTER.
IF AGENT SEEKS THE CONSENT OR APPROVAL OF ANY LENDERS
TO THE TAKING OR REFRAINING FROM TAKING ANY ACTION HEREUNDER, THEN AGENT SHALL
SEND PRIOR WRITTEN NOTICE THEREOF TO EACH LENDER.
AGENT SHALL PROMPTLY NOTIFY
EACH LENDER IN WRITING ANY TIME THAT THE APPLICABLE PERCENTAGE OF