Agreement bears to the aggregate then outstanding Term Loans, and
obligations outstanding under the Lender Hedging Agreements) of amounts
available to be applied pursuant to clauses "Third", "Fourth" and "Fifth" above.
ARTICLE IX.
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
SECTION 9.01
APPOINTMENT AND AUTHORITY.
EACH OF THE LENDERS HEREBY IRREVOCABLY
APPOINTS UBS AG, STAMFORD BRANCH, TO ACT ON ITS BEHALF AS THE ADMINISTRATIVE
AGENT AND THE COLLATERAL AGENT HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS AND
AUTHORIZES SUCH AGENTS TO TAKE SUCH ACTIONS ON ITS BEHALF AND TO EXERCISE SUCH
POWERS AS ARE DELEGATED TO SUCH AGENTS BY THE TERMS HEREOF OR THEREOF, TOGETHER
WITH SUCH ACTIONS AND POWERS AS ARE REASONABLY INCIDENTAL THERETO.
THE
PROVISIONS OF THIS ARTICLE ARE SOLELY FOR THE BENEFIT OF THE ADMINISTRATIVE
AGENT, THE COLLATERAL AGENT AND THE LENDERS, AND NEITHER BORROWER NOR ANY OTHER
LOAN PARTY SHALL HAVE RIGHTS AS A THIRD PARTY BENEFICIARY OF ANY OF SUCH
PROVISIONS.
SECTION 9.02
RIGHTS AS A LENDER.
EACH PERSON SERVING AS AN AGENT HEREUNDER
SHALL HAVE THE SAME RIGHTS AND POWERS IN ITS CAPACITY AS A LENDER AS ANY OTHER
LENDER AND MAY EXERCISE THE SAME AS THOUGH IT WERE NOT AN AGENT AND THE TERM
"LENDER" OR "LENDERS" SHALL, UNLESS OTHERWISE EXPRESSLY INDICATED OR UNLESS THE
CONTEXT OTHERWISE REQUIRES, INCLUDE EACH PERSON SERVING AS AN AGENT HEREUNDER IN
ITS INDIVIDUAL CAPACITY.
SUCH PERSON AND ITS AFFILIATES MAY ACCEPT DEPOSITS
FROM, LEND MONEY TO, ACT AS THE FINANCIAL ADVISOR OR IN ANY OTHER ADVISORY
CAPACITY FOR AND GENERALLY ENGAGE IN ANY KIND OF BUSINESS WITH BORROWERS OR ANY
SUBSIDIARY OR OTHER AFFILIATE THEREOF AS IF SUCH PERSON WERE NOT AN AGENT
HEREUNDER AND WITHOUT ANY DUTY TO ACCOUNT THEREFOR TO THE LENDERS.
THE LENDERS
HEREBY ACKNOWLEDGE THAT THE ADMINISTRATIVE AGENT IS ALSO ACTING AS THE
ADMINISTRATIVE AGENT UNDER THE REVOLVING CREDIT DOCUMENTS.
SECTION 9.03
EXCULPATORY PROVISIONS.
NO AGENT SHALL HAVE ANY DUTIES OR
OBLIGATIONS EXCEPT THOSE EXPRESSLY SET FORTH HEREIN AND IN THE OTHER LOAN
DOCUMENTS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NO AGENT:
90
(I)
SHALL BE SUBJECT TO ANY FIDUCIARY OR
OTHER IMPLIED DUTIES, REGARDLESS OF WHETHER A DEFAULT HAS OCCURRED AND IS
CONTINUING;
(II)
SHALL HAVE ANY DUTY TO TAKE ANY
DISCRETIONARY ACTION OR EXERCISE ANY DISCRETIONARY POWERS, EXCEPT DISCRETIONARY
RIGHTS AND POWERS EXPRESSLY CONTEMPLATED HEREBY OR BY THE OTHER LOAN DOCUMENTS
THAT SUCH AGENT IS REQUIRED TO EXERCISE AS DIRECTED IN WRITING BY THE REQUIRED
LENDERS (OR SUCH OTHER NUMBER OR PERCENTAGE OF THE LENDERS AS SHALL BE EXPRESSLY
PROVIDED FOR HEREIN OR IN THE OTHER LOAN DOCUMENTS); PROVIDED THAT SUCH AGENT
SHALL NOT BE REQUIRED TO TAKE ANY ACTION THAT, IN ITS JUDGMENT OR THE JUDGMENT
OF ITS COUNSEL, MAY EXPOSE SUCH AGENT TO LIABILITY OR THAT IS CONTRARY TO ANY
LOAN DOCUMENT OR APPLICABLE REQUIREMENTS OF LAW; AND
(III)
SHALL, EXCEPT AS EXPRESSLY SET FORTH HEREIN
AND IN THE OTHER LOAN DOCUMENTS, HAVE ANY DUTY TO DISCLOSE, AND SHALL NOT BE
LIABLE FOR THE FAILURE TO DISCLOSE,