THE SECURITY DOCUMENTS ON TRUST AND AS AGENT FOR THE LENDERS IN
RESPECT OF THE OBLIGATIONS 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 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
48
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 LENDERS HAVE INSTRUCTED AGENT TO ACT OR REFRAIN FROM
ACTING PURSUANT HERETO.
(C)
RIGHTS, EXCULPATION, ETC.
NEITHER AGENT NOR ANY OF ITS OFFICERS,
DIRECTORS, MANAGERS, MEMBERS, EQUITY OWNERS, EMPLOYEES, ATTORNEYS OR AGENTS
SHALL BE LIABLE TO ANY LENDER FOR ANY ACTION LAWFULLY TAKEN OR OMITTED BY THEM
HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS, OR IN CONNECTION HEREWITH OR
THEREWITH; PROVIDED THAT