RELATIONSHIP WITH ANY LENDER.
EACH
LENDER ACKNOWLEDGES THAT IT HAS NOT RELIED, AND WILL NOT RELY, ON ANY OF THE
PERSONS SO IDENTIFIED IN DECIDING TO ENTER INTO THIS AGREEMENT OR IN TAKING OR
NOT TAKING ACTION HEREUNDER.
ARTICLE X
THE AGENT
10.1.
APPOINTMENT; NATURE OF RELATIONSHIP.
JPMORGAN CHASE IS HEREBY
APPOINTED BY EACH OF THE LENDERS AS ITS CONTRACTUAL REPRESENTATIVE (HEREIN
REFERRED TO AS THE "AGENT") HEREUNDER AND UNDER EACH OTHER LOAN DOCUMENT, AND
EACH OF THE LENDERS IRREVOCABLY AUTHORIZES THE AGENT TO ACT AS THE CONTRACTUAL
REPRESENTATIVE OF SUCH LENDER WITH THE RIGHTS AND DUTIES EXPRESSLY SET FORTH
HEREIN AND IN THE OTHER LOAN DOCUMENTS.
THE AGENT AGREES TO ACT AS SUCH
CONTRACTUAL REPRESENTATIVE UPON THE EXPRESS CONDITIONS CONTAINED IN THIS
ARTICLE X.
NOTWITHSTANDING THE USE OF THE DEFINED TERM "AGENT," IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT THE AGENT SHALL NOT HAVE ANY FIDUCIARY
RESPONSIBILITIES TO ANY OF THE HOLDERS OF SECURED OBLIGATIONS BY REASON OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND THAT THE AGENT IS MERELY ACTING AS THE
CONTRACTUAL REPRESENTATIVE OF THE LENDERS WITH ONLY THOSE DUTIES AS ARE
EXPRESSLY SET FORTH IN THIS AGREEMENT
75
AND THE OTHER LOAN DOCUMENTS.
IN ITS CAPACITY AS THE LENDERS' CONTRACTUAL
REPRESENTATIVE, THE AGENT (I) DOES NOT HEREBY ASSUME ANY FIDUCIARY DUTIES TO ANY
OF THE HOLDERS OF SECURED OBLIGATIONS, (II) IS A "REPRESENTATIVE" OF THE HOLDERS
OF SECURED OBLIGATIONS WITHIN THE MEANING OF THE TERM "SECURED PARTY" AS DEFINED
IN THE NEW YORK UNIFORM COMMERCIAL CODE AND (III) IS ACTING AS AN INDEPENDENT
CONTRACTOR, THE RIGHTS AND DUTIES OF WHICH ARE LIMITED TO THOSE EXPRESSLY SET
FORTH IN THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
EACH OF THE LENDERS, FOR
ITSELF AND ON BEHALF OF ITS AFFILIATES AS HOLDERS OF SECURED OBLIGATIONS, HEREBY
AGREES TO ASSERT NO CLAIM AGAINST THE AGENT ON ANY AGENCY THEORY OR ANY OTHER
THEORY OF LIABILITY FOR BREACH OF FIDUCIARY DUTY, ALL OF WHICH CLAIMS EACH
HOLDER OF SECURED OBLIGATIONS HEREBY WAIVES.
10.2.
POWERS.
THE AGENT SHALL HAVE AND MAY EXERCISE SUCH POWERS UNDER
THE LOAN DOCUMENTS AS ARE SPECIFICALLY DELEGATED TO THE AGENT BY THE TERMS OF
EACH THEREOF, TOGETHER WITH SUCH POWERS AS ARE REASONABLY INCIDENTAL THERETO.
THE AGENT SHALL HAVE NO IMPLIED DUTIES OR FIDUCIARY DUTIES TO THE LENDERS, OR
ANY OBLIGATION TO THE LENDERS TO TAKE ANY ACTION THEREUNDER EXCEPT ANY ACTION
SPECIFICALLY PROVIDED BY THE LOAN DOCUMENTS TO BE TAKEN BY THE AGENT.
10.3.
GENERAL IMMUNITY.
NEITHER THE AGENT NOR ANY OF ITS DIRECTORS,
OFFICERS, AGENTS OR EMPLOYEES SHALL BE LIABLE TO THE PARENT, THE BORROWER, ANY
SUBSIDIARY OR ANY LENDER OR HOLDER OF SECURED OBLIGATIONS FOR ANY ACTION TAKEN
OR OMITTED TO BE TAKEN BY IT OR THEM HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT
OR IN CONNECTION HEREWITH OR THEREWITH EXCEPT TO THE EXTENT SUCH ACTION OR
INACTION IS DETERMINED IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION TO HAVE ARISEN FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF