Common use of Appointment; Rights and Duties Clause in Contracts

Appointment; Rights and Duties. (a) Each of the ------------------------------- Secured Parties hereby irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Support Documents, together with such actions and powers as are reasonably incidental thereto. (b) Any Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent hereunder. (c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Support Documents. Without limiting the generality of the foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Notice of Enforcement is in effect, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Support Documents that the Collateral Agent is required to exercise in writing by the Required Secured Parties, and (iii) except as expressly set forth in the Support Documents, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent, Holdings, the Borrower or the Subsidiary Loan Parties that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Secured Parties (or the requisite portion thereof as required by any applicable provision of this Agreement) or in the absence of its own gross negligence or wilful misconduct. The Collateral Agent shall be deemed not to have knowledge of any event that could result in a Notice of Enforcement unless and until a Notice of Enforcement is given to the Collateral Agent, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Support Document or Secured Instrument, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Support Document or Secured Instrument, (D) the validity, enforceability, effectiveness or genuineness of any Support Document or Secured Instrument or any other agreement, instrument or document, or (E) the satisfaction of any condition set forth in any Support Document or Secured Instrument, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. (d) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Parent or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. (e) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the activities as Collateral Agent. (f) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying each Secured Party and the Borrower. Upon any such resignation, the Required Committed Secured Parties (or, at any time when a Notice of Enforcement is in effect, the Required Secured Parties) shall have the right to appoint a successor. If no successor shall have been so appointed by the Required Committed Secured Parties (or, if applicable, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent's resignation hereunder, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. (g) Each Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to extend credit to the Borrower pursuant to the applicable Secured Instrument and enter into this Agreement. Each Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Support Document or related agreement or any document furnished hereunder or thereunder.

Appointment; Rights and Duties. (a) Each of the ------------------------------- Class A Secured Parties Party hereby irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Support Security Documents, together with such actions and powers as are reasonably incidental thereto. Each Class B Secured Party hereby irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Class B Security Documents, together with such actions and powers as are reasonably incidental thereto. (b) Any Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower Company or any Subsidiary other Grantor or other Affiliate thereof as if it were not the Collateral Agent hereunder. (c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Support DocumentsSecurity Documents of the applicable Class. Without limiting the generality of the foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Notice of Enforcement is in effect, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Support Security Documents of the applicable Class that the Collateral Agent is required to exercise in writing by the Required Secured Partiesas provided in Section 4.02(b), and (iii) except as expressly set forth in the Support DocumentsSecurity Documents of the applicable Class, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent, Holdings, the Borrower Company or the Subsidiary Loan Parties any other Grantor that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Secured Parties (or the requisite portion thereof as required by any applicable provision of this Agreement) or in the absence of its their own gross negligence or wilful misconduct. The Collateral Agent shall be deemed not to have knowledge of any event that could result in delivery of a Notice of Enforcement unless and until a Notice of Enforcement is given to received by the Collateral Agent, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Support Security Document or Secured Instrument, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Support Security Document or Secured Instrument, (D) the validity, enforceability, effectiveness or genuineness of any Support Security Document or Secured Instrument or any other agreement, instrument or document, document or (E) the satisfaction of any condition set forth in any Support Security Document or Secured Instrument, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. (d) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Except to the extent the provisions hereof provide for writings, the Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, Person and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Parent Company or the Borrowerany other Grantor), independent accountants and other experts selected by it, it and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. (e) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent; PROVIDED that, after the Effective Date and so long as no Notice of Enforcement received by it is in effect, the Collateral Agent shall provide to the Company notice of appointment of any sub-agent. The Collateral Agent and any such sub-agent may perform any and all its their duties and exercise its their rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs of this Section 7.01 shall apply to any such sub-agent and to the Related Parties of the Collateral Agent and any such sub-agent, agent and shall apply to their respective activities in connection with the activities as of the Collateral AgentAgent and any such sub-agent. (f) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, (i) the Collateral Agent may resign at any time by notifying the Company and each Secured Party of each Class and (ii) the Borrower. Upon any such resignation, Collateral Agent may be removed by the Act of the Required Committed Secured Class A Amendment Parties (or, at any time when a Notice of Enforcement is in effect, the Required Secured Class A Enforcement Parties) ). Upon any such resignation or removal, the Required Class A Amendment Parties (or, at any time when a Notice of Enforcement is in effect, the Required Class A Enforcement Parties), shall have the right to appoint a successor. If no successor shall have (i) been so appointed by the Required Committed Secured Class A Amendment Parties (or, if applicableat any time when a Notice of Enforcement is in effect, the Required Secured Class A Enforcement Parties) and shall have (ii) accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignationresignation or after such removal (as applicable), then the retiring or removed Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York (or the applicable local jurisdiction, in the case of a sub-agent) or an Affiliate of any such bankbank that has an office in New York, New York. Upon the acceptance by a successor of its appointment as Collateral Agent hereunder by a successorhereunder, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Collateral Agent, and the retiring or removed Collateral Agent shall be discharged from its duties and obligations hereunder. The retiring or removed Collateral Agent shall provide to its successor the original or true and accurate copies of all of its books and records relating to this Agreement and the transactions contemplated hereby. The fees payable by the Borrower Company to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower Company and such successor. After the Collateral Agent's resignation or removal hereunder, the provisions of this Article Article, including Section 7.02 hereof, shall continue in effect for the benefit of such retiring or removed Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. (g) Each Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to purchase the Securities or extend credit to the Borrower Grantors, as applicable, pursuant to the applicable Secured Instrument and to enter into this Agreement. Each Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Support Security Document or related agreement or any document furnished hereunder or thereunder.

Appointment; Rights and Duties. (a) Each Subject to Section 5.1(g), each of the ------------------------------- Secured Parties hereby irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Support Security Documents, subject to and in accordance with the terms hereof, together with such actions and powers as are reasonably incidental thereto. (b) Any Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Secured Party Party, if applicable, as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower any NOVA Party, or any Subsidiary or other Affiliate thereof thereof, as if it were not the Collateral Agent hereunder. (c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in this Agreement and the Support Documentsother Security Documents (and any Credit Documents to which the Collateral Agent is a party). Without limiting the generality of the foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Notice of Enforcement is in effect, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby and by the Support other Security Documents (or any Credit Documents to which the Collateral Agent is a party) that the Collateral Agent is required directed in writing to exercise in writing by the Required Majority Secured Parties (or at any time when a Notice of Enforcement is in effect, the Enforcing Secured Parties), subject to and in accordance with the terms hereof, and (iii) except as expressly set forth herein or in the Support Security Documents, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent, Holdings, the Borrower or the Subsidiary Loan Parties any NOVA Party that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity. The Notwithstanding anything else herein, the Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Secured Parties (or the requisite portion thereof as required by any applicable provision of this Agreement) made in accordance with the provisions hereof or in the absence of its own gross negligence or wilful misconduct. The Collateral Agent shall in all cases be fully justified in failing or refusing to take or continue any action under the Security Documents unless it shall have received further assurances to its satisfaction from the Secured Parties or Enforcing Secured Parties, as applicable, of the indemnification obligations under Section 5.2 against any and all liability and expense which may be incurred by it by reason of taking or continuing to take such action, and unless it shall be secured in respect thereof as it may deem appropriate, acting reasonably. (d) The Collateral Agent shall be deemed not to have knowledge of any event that could result in a Notice of Enforcement unless and until a Notice of Enforcement is given to the Collateral Agent, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (Ai) any statement, warranty or representation made in or in connection with any Support Document Security Document, or Secured InstrumentCredit Document, (Bii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (Ciii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Support Security Document or Secured InstrumentCredit Document, (Div) the validity, enforceability, effectiveness or genuineness of any Support Security Document, Credit Document or Secured Instrument or any other agreement, instrument or document, or (Ev) the satisfaction of any condition set forth in any Support Security Document, Credit Document or Secured Instrumentother agreement, instrument or document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. (de) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub‑agents appointed by the Collateral Agent or through one or more Related Parties and may from time to time appoint, employ or retain such counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the purpose of discharging its duties hereunder. The exculpatory provisions hereof and of any other Security Documents applicable to the Collateral Agent shall apply to any such sub‑agent, expert or adviser and to the Related Parties of the Collateral Agent and any such sub‑agent, expert or adviser and shall apply to their respective activities in connection with the activities of the Collateral Agent. The Collateral Agent shall not be responsible for any loss occasioned by the acts of any such sub‑agent, expert or adviser selected by it with reasonable care and without gross negligence or wilful misconduct (but the Collateral Agent shall nevertheless be liable for any loss occasioned by the gross negligence or wilful misconduct of the Collateral Agent). (f) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made Person and to it orally not have been revoked or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereoncancelled in writing. The Collateral Agent may consult with legal counsel (who may be counsel for the Parent or the Borrowerany NOVA Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. (e) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the activities as Collateral Agent. (f) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying each Secured Party and the Borrower. Upon any such resignation, the Required Committed Secured Parties (or, at any time when a Notice of Enforcement is in effect, the Required Secured Parties) shall have the right to appoint a successor. If no successor shall have been so appointed by the Required Committed Secured Parties (or, if applicable, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent's resignation hereunder, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. (g) Each Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to extend credit to the Borrower pursuant to the applicable Secured Instrument and enter into this Agreement. Each Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Support Document or related agreement or any document furnished hereunder or thereunder.

Appointment; Rights and Duties. (a) Each Subject to Section 5.1(g), each of the ------------------------------- Secured Parties hereby irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Support Security Documents, subject to and in accordance with the terms hereof, together with such actions and powers as are reasonably incidental thereto. (b) Any Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Secured Party Party, if applicable, as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower any NOVA Party, or any Subsidiary or other Affiliate thereof thereof, as if it were not the Collateral Agent hereunder. (c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in this Agreement and the Support Documentsother Security Documents (and any Credit Documents to which the Collateral Agent is a party). Without limiting the generality of the foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Notice of Enforcement is in effect, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby and by the Support other Security Documents (or any Credit Documents to which the Collateral Agent is a party) that the Collateral Agent is required directed in writing to exercise in writing by the Required Majority Secured Parties (or at any time when a Notice of Enforcement is in effect, the Enforcing Secured Parties), subject to and in accordance with the terms hereof, and (iii) except as expressly set forth herein or in the Support Security Documents, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent, Holdings, the Borrower or the Subsidiary Loan Parties any NOVA Party that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity. The Notwithstanding anything else herein, the Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Secured Parties (or the requisite portion thereof as required by any applicable provision of this Agreement) made in accordance with the provisions hereof or in the absence of its own gross negligence or wilful misconduct. The Collateral Agent shall in all cases be fully justified in failing or refusing to take or continue any action under the Security Documents unless it shall have received further assurances to its satisfaction from the Secured Parties or Enforcing Secured Parties, as applicable, of the indemnification obligations under Section 5.2 against any and all liability and expense which may be incurred by it by reason of taking or continuing to take such action, and unless it shall be secured in respect thereof as it may deem appropriate, acting reasonably. (d) The Collateral Agent shall be deemed not to have knowledge of any event that could result in a Notice of Enforcement unless and until a Notice of Enforcement is given to the Collateral Agent, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (Ai) any statement, warranty or representation made in or in connection with any Support Document Security Document, or Secured InstrumentCredit Document, (Bii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (Ciii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Support Security Document or Secured InstrumentCredit Document, (Div) the validity, enforceability, effectiveness or genuineness of any Support Security Document, Credit Document or Secured Instrument or any other agreement, instrument or document, or (Ev) the satisfaction of any condition set forth in any Support Security Document, Credit Document or Secured Instrumentother agreement, instrument or document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. (d) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Parent or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. (e) The Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent or through one or more Related Parties and any may from time to time appoint, employ or retain such sub-agent counsel, accountants, appraisers or other experts or advisers as it may perform any and all reasonably require for the purpose of discharging its duties and exercise its rights and powers through their respective Related Partieshereunder. The exculpatory provisions hereof and of any other Security Documents applicable to the preceding paragraphs Collateral Agent shall apply to any such sub-agent agent, expert or adviser and to the Related Parties of the Collateral Agent and any such sub-agent, expert or adviser and shall apply to their respective activities in connection with the activities as of the Collateral Agent. (f) Subject to the appointment and acceptance of a successor . The Collateral Agent as provided in this paragraphshall not be responsible for any loss occasioned by the acts of any such sub-agent, expert or adviser selected by it with reasonable care and without gross negligence or willful misconduct (but the Collateral Agent may resign at shall nevertheless be liable for any time by notifying each Secured Party and the Borrower. Upon any such resignation, the Required Committed Secured Parties (or, at any time when a Notice of Enforcement is in effect, the Required Secured Parties) shall have the right to appoint a successor. If no successor shall have been so appointed loss occasioned by the Required Committed Secured Parties (or, if applicable, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice gross negligence or willful misconduct of its resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent's resignation hereunder, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent). (g) Each Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to extend credit to the Borrower pursuant to the applicable Secured Instrument and enter into this Agreement. Each Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Support Document or related agreement or any document furnished hereunder or thereunder.

Appointment; Rights and Duties. (a) Each of the ------------------------------- Secured Parties hereby irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Support Documents, together with such actions and powers as are reasonably incidental thereto. (b) Any Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent hereunder. (c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Support Documents. Without limiting the generality of the foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Notice of Enforcement is in effect, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Support Documents that the Collateral Agent is required to exercise in writing by the Required Secured Parties, and (iii) except as expressly set forth in the Support Documents, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent, Holdings, the Borrower or the Subsidiary Loan Parties that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Secured Parties (or the requisite portion thereof as required by any applicable provision of this Agreement) or in the absence of its own gross negligence or wilful misconductmis conduct. The Collateral Agent shall be deemed not to have knowledge of any event that could result in a Notice of Enforcement unless and until a Notice of Enforcement is given to the Collateral Agent, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Support Document or Secured Instrument, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Support Document or Secured Instrument, (D) the validity, enforceability, effectiveness or genuineness of any Support Document or Secured Instrument or any other agreement, instrument or document, or (E) the satisfaction of any condition set forth in any Support Document or Secured Instrument, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. (d) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Parent or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. (e) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the activities as Collateral Agent. (f) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying each Secured Party and the Borrower. Upon any such resignation, the Required Committed Secured Parties (or, at any time when a Notice of Enforcement is in effect, the Required Secured Parties) shall have the right to appoint a successor. If no successor shall have been so appointed by the Required Committed Secured Parties (or, if applicable, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent's resignation hereunder, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. (g) Each Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to extend credit to the Borrower pursuant to the applicable Secured Instrument and enter into this Agreement. Each Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Support Document or related agreement or any document furnished hereunder or thereunder.of

Appointment; Rights and Duties. (a) Each of the ------------------------------- Secured Parties hereby irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Support Documents, together with such actions and powers as are reasonably incidental thereto. (b) Any Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent hereunder. (c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Support Documents. Without limiting the generality of the foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Notice of Enforcement is in effect, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Support Documents that the Collateral Agent is required to exercise in writing by the Required Secured Parties, and (iii) except as expressly set forth in the Support Documents, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent, Holdings, the Borrower or the Subsidiary Loan Parties that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Secured Parties (or the requisite portion thereof as required by any applicable provision of this Agreement) or in the absence of its own gross negligence or wilful misconduct. The Collateral Agent shall be deemed not to have knowledge of any event that could result in a Notice of Enforcement unless and until a Notice of Enforcement is given to the Collateral Agent, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Support Document or Secured Instrument, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Support Document or Secured Instrument, (D) the validity, enforceability, effectiveness or genuineness of any Support Document or Secured Instrument or any other agreement, instrument or document, or (E) the satisfaction of any condition set forth in any Support Document or Secured Instrument, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. (d) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Parent or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. (e) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the activities as Collateral Agent. (f) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying each Secured Party and the Borrower. Upon any such resignation, the Required Committed Secured Parties (or, at any time when a Notice of Enforcement is in effect, the Required Secured Parties) shall have the right to appoint a successor. If no successor shall have been so appointed by the Required Committed Secured Parties (or, if applicable, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent's resignation hereunder, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub-sub- agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. (g) Each Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to extend credit to the Borrower pursuant to the applicable Secured Instrument and enter into this Agreement. Each Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Support Document or related agreement or any document furnished hereunder or thereunder.

Appointment; Rights and Duties. (a) Each of the ------------------------------- Secured Parties hereby irrevocably appoints the Collateral Agent as its agent (and attorney-in-fact for purposes of any Security Documents granting Liens to the Lenders) and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms of the Common Agreement and the Support Documents, as applicable, together with such actions and powers as are reasonably incidental thereto. (b) Any Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower any Loan Party or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent hereunder. (c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Common Agreement and the Support DocumentsDocuments and no such duties or obligations shall be read into the Common Agreement and the Support Documents against the Collateral Agent. Without limiting the generality of the foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Notice an Event of Enforcement Default has occurred and is in effectcontinuing, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Common Agreement or any Support Documents Document that the Collateral Agent is required to exercise in writing by the Required Secured Partiesaccordance with Article VIII, and (iii) except as expressly set forth in the Common Agreement and the Support Documents, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent, Holdings, the Borrower any Loan Party or the Subsidiary Loan Parties Affiliate thereof that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it in accordance with the consent or at the request of the Secured Parties (or the requisite portion thereof as required instructions received by any applicable provision of this Agreement) it pursuant to Article VIII or in the absence of its own gross negligence or wilful misconduct. The Collateral Agent shall be deemed not to have knowledge of any event that could result in a Notice of Enforcement Default unless and until a Notice of Enforcement written notice thereof is given to a Responsible Officer of the Collateral AgentAgent by the Borrower, Vesper or another Secured Party, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Support Document or Secured InstrumentLoan Document, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Support Document or Secured InstrumentLoan Document, (D) the validity, enforceability, effectiveness or genuineness of any Support Loan Document or Secured Instrument or any other agreement, instrument or document, or (E) the satisfaction of any condition set forth in any Support Document or Secured InstrumentLoan Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent but the Collateral Agent. (d) The , in its discretion, may make such inquiry into such facts or matters as it may see fit, and, if the Collateral Agent shall determine to make such inquiry, it shall be entitled to rely uponexamine the books, records and shall not incur any liability for relying uponpremises of the Borrower, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally personally or by telephone and believed by it to be made by agent or attorney at the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Parent or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice sole cost of any such counsel, accountants or experts. (e) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the activities as Collateral Agent. (f) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying each Secured Party and the Borrower. Upon any such resignation, the Required Committed Secured Parties (or, at any time when a Notice of Enforcement is in effect, the Required Secured Parties) shall have the right to appoint a successor. If no successor shall have been so appointed by the Required Committed Secured Parties (or, if applicable, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent's resignation hereunder, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect incur no liability or additional liability of any actions taken or omitted to be taken kind by any reason of them while it was acting as Collateral Agentinquiry. (g) Each Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to extend credit to the Borrower pursuant to the applicable Secured Instrument and enter into this Agreement. Each Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Support Document or related agreement or any document furnished hereunder or thereunder.

Appointment; Rights and Duties. (a) Each of the ------------------------------- Secured Parties hereby irrevocably appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions on its behalf ------------------------------- and to exercise such powers as are delegated to the Collateral Agent by the terms of the Support Documents, together with such actions and powers as are reasonably incidental thereto. (b) Any Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Secured Party as any other Secured Party and may exercise the same as though it were not the Collateral Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent hereunder. (c) The Collateral Agent shall not have any duties or obligations except those expressly set forth in the Support Documents. Without limiting the generality of the foregoing, (i) the Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Notice of Enforcement is in effect, (ii) the Collateral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Support Documents that the Collateral Agent is required to exercise in writing by the Required Secured Parties, and (iii) except as expressly set forth in the Support Documents, the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent, Holdings, the Borrower or the Subsidiary Loan Parties that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity. The Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Secured Parties (or the requisite portion thereof as required by any applicable provision of this Agreement) or in the absence of its own gross negligence or wilful misconduct. The Collateral Agent shall be deemed not to have knowledge of any event that could result in a Notice of Enforcement unless and until a Notice of Enforcement is given to the Collateral Agent, and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Support Document or Secured Instrument, (B) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Support Document or Secured Instrument, (D) the validity, enforceability, effectiveness or genuineness of any Support Document or Secured Instrument or any other agreement, instrument or document, or (E) the satisfaction of any condition set forth in any Support Document or Secured Instrument, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. (d) The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Parent or the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. (e) The Collateral Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the activities as Collateral Agent. (f) Subject to the appointment and acceptance of a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any time by notifying each Secured Party and the Borrower. Upon any such resignation, the Required Committed Secured Parties (or, at any time when a Notice of Enforcement is in effect, the Required Secured Parties) shall have the right to appoint a successor. If no successor shall have been so appointed by the Required Committed Secured Parties (or, if applicable, the Required Secured Parties) and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent which shall be a bank with an office in New York, New York or an Affiliate of any such bank. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Collateral Agent's resignation hereunder, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Collateral Agent. (g) Each Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to extend credit to the Borrower pursuant to the applicable Secured Instrument and enter into this Agreement. Each Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent or any other Secured Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Support Document or related agreement or any document furnished hereunder or thereunder.