Common use of Authorization; Liability of Collateral Agent and Reliance Clause in Contracts

Authorization; Liability of Collateral Agent and Reliance. (a) Each Holder hereby authorizes the Collateral Agent to (i) execute, deliver and perform each Note Document to which the Collateral Agent is or is intended to be a party, (ii) subject to the other terms and provisions hereof, exercise and enforce any or all rights, powers and remedies provided to the Collateral Agent by any Note Document, any applicable Governmental Rule or any other document, instrument or agreement, whether before or after the occurrence of an Event of Default, and (iii) subject to the other terms and provisions hereof, take any other action under any Note Document which it shall deem advisable in the best interests of the Holders. Each Holder shall be bound by all of the agreements of the Note Documents and by all other actions taken by the Collateral Agent pursuant to the Note Documents. (b) Collateral Agent shall not (i) be liable for any action taken or omitted to be taken by it under or in connection with any Note Document or the transactions contemplated hereby, except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein, (ii) be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error, other than an error resulting from its own gross negligence or willful misconduct, the sole recourse of any Holder to whom payment was due but not made shall be to recover from other Holders any payment in excess of the amount to which they are determined to be entitled (and such other Holders hereby agree to return to such Holder any such erroneous payments received by them), or (iii) be responsible in any manner to any Holder or its transferees for any recital, statement, representation or warranty made by the Company or the Guarantors or any officer thereof, contained herein or in any other Note Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, any Note Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of any Note Document, or for any failure of the Company or the Guarantors or any other party to any Note Document to perform its obligations hereunder or thereunder. The Collateral Agent shall not be responsible for (i) any failure to perfect, maintain, monitor, preserve or protect the security interest or lien granted under the Note Documents, except to the extent caused by the Collateral Agents willful misconduct or gross negligence resulting in a failure of the Collateral Agent to comply with any express written request by the Required Holders to take reasonable specific actions to perfect or protect security interest in the Collateral in accordance with the Collateral Agents obligations under the Note Documents, (ii) the filing, re-filing, recording, re-recording or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on, or the payment of taxes with respect to, any of the Collateral. In no event shall the Collateral Agent be liable for punitive, special, consequential, incidental, exemplary or other similar damages. In performing its functions and duties hereunder, the Collateral Agent shall exercise the same care that it would in dealing with loans for its own account. The Collateral Agent shall be under no obligation to any Holder or transferee to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Note Document or the existence or possible existence of any Default or Event of Default, or to inspect the properties, books or records of the Company or the Guarantors or any Affiliate thereof. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or any other Note Document, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein and shall not have or be deemed to have any fiduciary relationship with any Holder or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Note Document or otherwise exist against the Collateral Agent. (c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Company or the Guarantors), independent accountants and other experts selected by the Collateral Agent. The Collateral Agent shall be entitled to rely upon the advice of legal counsel, independent accountants, and other experts selected by such Person in its sole discretion. The Collateral Agent shall have no obligation to take any action if it believes, in good faith, that such action is deemed to be illegal or exposes the Collateral Agent to any liability for which the Collateral Agent has not received satisfactory indemnification. The Collateral Agent shall be fully justified in failing or refusing to take any action under the Note Documents unless it shall first receive such advice or concurrence of the Required Holders as it deems reasonably appropriate. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Note Documents in accordance with a request of the Required Holders, and such a request and any action taken or any failure to act pursuant thereto shall be binding upon all of the Holders. (d) The Holders shall indemnify and hold harmless the Collateral Agent and its affiliates, stockholders, partners, members, officers, directors, employees, agents, representatives, controlling persons, successors, heirs and assigns (collectively, the Indemnified Parties) and save and hold each of them harmless against and pay on behalf of or reimburse such party as and when incurred for any loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, penalty, fine or expense, whether or not arising out of any claims by or on behalf of the Holders or any third party, including interest, penalties, and reasonable attorneys fees and expenses of one counsel to the Indemnified Parties (or such additional counsel as may reasonably be required by reason of a conflict of interest among or between Indemnified Parties) and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively, Losses) which any such party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of the Note Documents or the transactions contemplated thereby or any action taken or omitted by the Indemnified Parties under or in connection with any of the foregoing; provided, however, that no Indemnified Party shall be entitled to such rights and remedies to the extent that such Losses occur solely as a result of the willful misconduct, or the gross negligence on the part of any Indemnified Party, as finally determined by a court of competent jurisdiction.

Authorization; Liability of Collateral Agent and Reliance. (a) Each Holder hereby authorizes the Collateral Agent to (i) execute, deliver and perform each Note Document to which the Collateral Agent is or is intended to be a party, (ii) subject to the other terms and provisions hereof, exercise and enforce any or all rights, powers and remedies provided to the Collateral Agent by any Note Document, any applicable Governmental Rule or any other document, instrument or agreement, whether before or after the occurrence of an Event of Default, and (iii) subject to the other terms and provisions hereof, take any other action under any Note Document which it shall deem advisable in the best interests of the Holders. Each Holder shall be bound by all of the agreements of the Note Documents and by all other actions taken by the Collateral Agent pursuant to the Note Documents. (b) Collateral Agent shall not (i) be liable for any action taken or omitted to be taken by it under or in connection with any Note Document or the transactions contemplated hereby, except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein, (ii) be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error, other than an error resulting from its own gross negligence or willful misconduct, the sole recourse of any Holder to whom payment was due but not made shall be to recover from other Holders any payment in excess of the amount to which they are determined to be entitled (and such other Holders hereby agree to return to such Holder any such erroneous payments received by them), or (iii) be responsible in any manner to any Holder or its transferees for any recital, statement, representation or warranty made by the Company Parent Issuer or the Guarantors or any officer thereof, contained herein or in any other Note Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, any Note Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of any Note Document, or for any failure of the Company Parent Issuer or the Guarantors or any other party to any Note Document to perform its obligations hereunder or thereunder. The Collateral Agent shall not be responsible for (i) any failure to perfect, maintain, monitor, preserve or protect the security interest or lien granted under the Note Documents, except to the extent caused by the Collateral Agents Agent’s willful misconduct or gross negligence resulting in a failure of the Collateral Agent to comply with any express written request by the Required Holders to take reasonable specific actions to perfect or protect security interest in the Collateral in accordance with the Collateral Agents Agent’s obligations under the Note Documents, (ii) the filing, re-filing, recording, re-recording or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on, or the payment of taxes with respect to, any of the Collateral. In no event shall the Collateral Agent be liable for punitive, special, consequential, incidental, exemplary or other similar damages. In performing its functions and duties hereunder, the Collateral Agent shall exercise the same care that it would in dealing with loans for its own account. The Collateral Agent shall be under no obligation to any Holder or transferee to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Note Document or the existence or possible existence of any Default or Event of Default, or to inspect the properties, books or records of the Company Parent Issuer or the Guarantors or any Affiliate thereof. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or any other Note Document, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein and shall not have or be deemed to have any fiduciary relationship with any Holder or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Note Document or otherwise exist against the Collateral Agent. (c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Company Parent Issuer or the Guarantors), independent accountants and other experts selected by the Collateral Agent. The Collateral Agent shall be entitled to rely upon the advice of legal counsel, independent accountants, and other experts selected by such Person in its sole discretion. The Collateral Agent shall have no obligation to take any action if it believes, in good faith, that such action is deemed to be illegal or exposes the Collateral Agent to any liability for which the Collateral Agent has not received satisfactory indemnification. The Collateral Agent shall be fully justified in failing or refusing to take any action under the Note Documents unless it shall first receive such advice or concurrence of the Required Holders as it deems reasonably appropriate. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Note Documents in accordance with a request of the Required Holders, and such a request and any action taken or any failure to act pursuant thereto shall be binding upon all of the Holders. (d) The Holders shall indemnify and hold harmless the Collateral Agent and its affiliates, stockholders, partners, members, officers, directors, employees, agents, representatives, controlling persons, successors, heirs and assigns (collectively, the “Indemnified Parties”) and save and hold each of them harmless against and pay on behalf of or reimburse such party as and when incurred for any loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, penalty, fine or expense, whether or not arising out of any claims by or on behalf of the Holders or any third party, including interest, penalties, and reasonable attorneys attorneys’ fees and expenses of one counsel to the Indemnified Parties (or such additional counsel as may reasonably be required by reason of a conflict of interest among or between Indemnified Parties) and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively, “Losses”) which any such party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of the Note Documents or the transactions contemplated thereby or any action taken or omitted by the Indemnified Parties under or in connection with any of the foregoing; provided, however, that no Indemnified Party shall be entitled to such rights and remedies to the extent that such Losses occur solely as a result of the willful misconduct, or the gross negligence on the part of any Indemnified Party, as finally determined by a court of competent jurisdiction.

Authorization; Liability of Collateral Agent and Reliance. (a) Each Holder hereby authorizes the Collateral Agent to (i) execute, deliver and perform each Note Document to which the Collateral Agent is or is intended to be a party, (ii) subject to the other terms and provisions hereof, exercise and enforce any or all rights, powers and remedies provided to the Collateral Agent by any Note Document, any applicable Governmental Rule or any other document, instrument or agreement, whether before or after the occurrence of an Event of Default, and (iii) subject to the other terms and provisions hereof, take any other action under any Note Document which it shall deem advisable in the best interests of the Holders. Each Holder shall be bound by all of the agreements of the Note Documents and by all other actions taken by the Collateral Agent pursuant to the Note Documents. (b) Collateral Agent shall not (i) be liable for any action taken or omitted to be taken by it under or in connection with any Note Document or the transactions contemplated hereby, except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein, (ii) be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error, other than an error resulting from its own gross negligence or willful misconduct, the sole recourse of any Holder to whom payment was due but not made shall be to recover from other Holders any payment in excess of the amount to which they are determined to be entitled (and such other Holders hereby agree to return to such Holder any such erroneous payments received by them), or (iii) be responsible in any manner to any Holder or its transferees for any recital, statement, representation or warranty made by the Company Parent Issuer or the Guarantors or any officer thereof, contained herein or in any other Note Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, any Note Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of any Note Document, or for any failure of the Company Parent Issuer or the Guarantors or any other party to any Note Document to perform its obligations hereunder or thereunder. The Collateral Agent shall not be responsible for (i) any failure to perfect, maintain, monitor, preserve or protect the security interest or lien granted under the Note Documents, except to the extent caused by the Collateral Agents willful misconduct or gross negligence resulting in a failure of the Collateral Agent to comply with any express written request by the Required Holders to take reasonable specific actions to perfect or protect security interest in the Collateral in accordance with the Collateral Agents obligations under the Note Documents, (ii) the filing, re-filing, recording, re-recording or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on, or the payment of taxes with respect to, any of the Collateral. In no event shall the Collateral Agent be liable for punitive, special, consequential, incidental, exemplary or other similar damages. In performing its functions and duties hereunder, the Collateral Agent shall exercise the same care that it would in dealing with loans for its own account. The Collateral Agent shall be under no obligation to any Holder or transferee to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Note Document or the existence or possible existence of any Default or Event of Default, or to inspect the properties, books or records of the Company Parent Issuer or the Guarantors or any Affiliate thereof. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or any other Note Document, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein and shall not have or be deemed to have any fiduciary relationship with any Holder or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Note Document or otherwise exist against the Collateral Agent. (c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Company Parent Issuer or the Guarantors), independent accountants and other experts selected by the Collateral Agent. The Collateral Agent shall be entitled to rely upon the advice of legal counsel, independent accountants, and other experts selected by such Person in its sole discretion. The Collateral Agent shall have no obligation to take any action if it believes, in good faith, that such action is deemed to be illegal or exposes the Collateral Agent to any liability for which the Collateral Agent has not received satisfactory indemnification. The Collateral Agent shall be fully justified in failing or refusing to take any action under the Note Documents unless it shall first receive such advice or concurrence of the Required Holders as it deems reasonably appropriate. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Note Documents in accordance with a request of the Required Holders, and such a request and any action taken or any failure to act pursuant thereto shall be binding upon all of the Holders. (d) The Holders shall indemnify and hold harmless the Collateral Agent and its affiliates, stockholders, partners, members, officers, directors, employees, agents, representatives, controlling persons, successors, heirs and assigns (collectively, the Indemnified Parties) and save and hold each of them harmless against and pay on behalf of or reimburse such party as and when incurred for any loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, penalty, fine or expense, whether or not arising out of any claims by or on behalf of the Holders or any third party, including interest, penalties, and reasonable attorneys fees and expenses of one counsel to the Indemnified Parties (or such additional counsel as may reasonably be required by reason of a conflict of interest among or between Indemnified Parties) and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively, Losses) which any such party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of the Note Documents or the transactions contemplated thereby or any action taken or omitted by the Indemnified Parties under or in connection with any of the foregoing; provided, however, that no Indemnified Party shall be entitled to such rights and remedies to the extent that such Losses occur solely as a result of the willful misconduct, or the gross negligence on the part of any Indemnified Party, as finally determined by a court of competent jurisdiction.

Authorization; Liability of Collateral Agent and Reliance. (a) Each Holder hereby authorizes the Collateral Agent to (i) execute, deliver and perform each Note Document the Security Agreement to which the Collateral Agent is or is intended to be a party, (ii) subject to the other terms and provisions hereof, exercise and enforce any or all rights, powers and remedies provided to the Collateral Agent by any Note Documentthe Security Agreement, this Agreement, any applicable Governmental Rule or any other document, instrument or agreement, whether before or after the occurrence of an Event of Default, and (iii) subject to the other terms and provisions hereof, take any other action under any Note Document the Security Agreement which it shall deem advisable in the best interests of the Holders. Each Holder shall be bound by all of the agreements of the Note Documents Collateral Agent contained in this Agreement and the Security Agreement and by all other actions taken by the Collateral Agent pursuant to this Agreement and the Note DocumentsSecurity Agreement. (b) Collateral Agent shall not (i) be liable for any action taken or omitted to be taken by it under or in connection with any Note Document the Security Agreement or the transactions contemplated hereby, except for to the extent that any of the damages or losses resulting from the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have directly and primarily resulted from its or such person’s own gross negligence or willful misconduct in connection with its duties expressly set forth herein, (ii) be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error, other than an error resulting from its own gross negligence or willful misconduct, the sole recourse of any Holder to whom payment was due but not made shall be to recover from other Holders any payment in excess of the amount to which they are determined to be entitled (and such other Holders hereby agree to return to such Holder any such erroneous payments received by them)) , or (iii) be responsible in any manner to any Holder or its transferees for any recital, statement, representation or warranty made by the Company or the Guarantors or any officer thereof, contained herein herein, in the Senior Notes or in any other Note Documentthe Security Agreement, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, any Note Documentthe Security Agreement or the Senior Notes, or the validity, effectiveness, genuineness, enforceability or sufficiency of any Note Documentthe Security Agreement or the Senior Notes (including the attachment or perfection of liens by reason of the Security Agreement or otherwise), or for any failure of the Company or the Guarantors or any other party to any Senior Note Document to perform its obligations hereunder or thereunder. The Collateral Agent shall not be responsible for (i) any failure to perfect, maintain, monitor, preserve or protect the security interest or lien granted under the Note Documents, except to the extent caused by the Collateral Agents willful misconduct or gross negligence resulting in a failure of the Collateral Agent to comply with any express written request by the Required Holders to take reasonable specific actions to perfect or protect security interest in the Collateral in accordance with the Collateral Agents obligations under the Note Documents, (ii) the filing, re-filing, recording, re-recording or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on, or the payment of taxes with respect to, any of the Collateral. In no event shall the Collateral Agent be liable for punitive, special, consequential, incidental, exemplary or other similar damages. In performing its functions and duties hereunder, the Collateral Agent shall exercise the same care that it would in dealing with loans for its own account. The Collateral Agent shall be under no obligation to any Holder or transferee to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Note Document the Security Agreement or the Senior Notes or the existence or possible existence of any Default or Event of Default, or to inspect the properties, books or records of the Company or the Guarantors or any Affiliate thereof. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or any other Note Document, the The Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein and shall not have or be deemed to have knowledge or notice of the occurrence of any fiduciary relationship with any Event of Default unless it has received notice from a Holder or participantthe Company referring to this Agreement, describing such Event of Default and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Note Document or otherwise exist against the Collateral Agentstating that such notice is a “notice of default.” (c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Company or the Guarantors)counsel, independent accountants and other experts selected by the Collateral Agent. The Collateral Agent shall be entitled to rely upon the advice of legal counsel, independent accountants, and other experts selected by such Person in its sole discretion. The Collateral Agent shall have no obligation to take any action if it believes, in good faith, that such action is deemed to be illegal or exposes the Collateral Agent to any liability for which the Collateral Agent has not received satisfactory indemnification. The Collateral Agent shall be fully justified in failing or refusing to take any action under the Note Documents unless it shall first receive such advice or concurrence of the Required Holders as it deems reasonably appropriate. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Note Documents in accordance with a request of the Required Holders, and such a request and any action taken or any failure to act pursuant thereto shall be binding upon all of the Holders. (d) The Holders shall indemnify and hold harmless the Collateral Agent and its affiliates, stockholders, partners, members, officers, directors, employees, agents, representatives, controlling persons, successors, heirs and assigns (collectively, the Indemnified Parties) and save and hold each of them harmless against and pay on behalf of or reimburse such party as and when incurred for any loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, penalty, fine or expense, whether or not arising out of any claims by or on behalf of the Holders or any third party, including interest, penalties, and reasonable attorneys fees and expenses of one counsel to the Indemnified Parties (or such additional counsel as may reasonably be required by reason of a conflict of interest among or between Indemnified Parties) and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively, Losses) which any such party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of the Note Documents or the transactions contemplated thereby or any action taken or omitted by the Indemnified Parties under or in connection with any of the foregoing; provided, however, that no Indemnified Party shall be entitled to such rights and remedies to the extent that such Losses occur solely as a result of the willful misconduct, or the gross negligence on the part of any Indemnified Party, as finally determined by a court of competent jurisdiction.

Authorization; Liability of Collateral Agent and Reliance. (a) Each Holder hereby authorizes the Collateral Agent to (i) execute, deliver and perform each Note Document to which the Collateral Agent is or is intended to be a party, (ii) subject to the other terms and provisions hereof, exercise and enforce any or all rights, powers and remedies provided to the Collateral Agent by any Note Document, any applicable Governmental Rule or any other document, instrument or agreement, whether before or after the occurrence of an Event of Default, and (iii) subject to the other terms and provisions hereof, take any other action under any Note Document which it shall deem advisable in the best interests of the Holders. Each Holder shall be bound by all of the agreements of the Note Documents and by all other actions taken by the Collateral Agent pursuant to the Note Documents. (b) Collateral Agent shall not (i) be liable for any action taken or omitted to be taken by it under or in connection with any Note Document or the transactions contemplated hereby, except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein, (ii) be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error, other than an error resulting from its own gross negligence or willful misconduct, the sole recourse of any Holder to whom payment was due but not made shall be to recover from other Holders any payment in excess of the amount to which they are determined to be entitled (and such other Holders hereby agree to return to such Holder any such erroneous payments received by them), or (iii) be responsible in any manner to any Holder or its transferees for any recital, statement, representation or warranty made by the Company Parent Issuer or the Guarantors or any officer thereof, contained herein or in any other Note Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, any Note Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of any Note Document, or for any failure of the Company Parent Issuer or the Guarantors or any other party to any Note Document to perform its obligations hereunder or thereunder. The Collateral Agent shall not be responsible for (i) any failure to SF1:728511 7 perfect, maintain, monitor, preserve or protect the security interest or lien granted under the Note Documents, except to the extent caused by the Collateral Agents Agent’s willful misconduct or gross negligence resulting in a failure of the Collateral Agent to comply with any express written request by the Required Holders to take reasonable specific actions to perfect or protect security interest in the Collateral in accordance with the Collateral Agents Agent’s obligations under the Note Documents, (ii) the filing, re-filing, recording, re-recording or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on, or the payment of taxes with respect to, any of the Collateral. In no event shall the Collateral Agent be liable for punitive, special, consequential, incidental, exemplary or other similar damages. In performing its functions and duties hereunder, the Collateral Agent shall exercise the same care that it would in dealing with loans for its own account. The Collateral Agent shall be under no obligation to any Holder or transferee to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any Note Document or the existence or possible existence of any Default or Event of Default, or to inspect the properties, books or records of the Company Parent Issuer or the Guarantors or any Affiliate thereof. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or any other Note Document, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein and shall not have or be deemed to have any fiduciary relationship with any Holder or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Note Document or otherwise exist against the Collateral Agent. (c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Company Parent Issuer or the Guarantors), independent accountants and other experts selected by the Collateral Agent. The Collateral Agent shall be entitled to rely upon the advice of legal counsel, independent accountants, and other experts selected by such Person in its sole discretion. The Collateral Agent shall have no obligation to take any action if it believes, in good faith, that such action is deemed to be illegal or exposes the Collateral Agent to any liability for which the Collateral Agent has not received satisfactory indemnification. The Collateral Agent shall be fully justified in failing or refusing to take any action under the Note Documents unless it shall first receive such advice or concurrence of the Required Holders as it deems reasonably appropriate. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Note Documents in accordance with a request of the Required Holders, and such a request and any action taken or any failure to act pursuant thereto shall be binding upon all of the Holders. (d) The Holders shall indemnify and hold harmless the Collateral Agent and its affiliates, stockholders, partners, members, officers, directors, employees, agents, representatives, controlling persons, successors, heirs and assigns (collectively, the "Indemnified Parties") and save and hold each of them harmless against and pay on behalf of or reimburse such party as and when incurred for any loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, penalty, fine or expense, whether or not arising out of any SF1:728511 8 claims by or on behalf of the Holders or any third party, including interest, penalties, and reasonable attorneys attorneys’ fees and expenses of one counsel to the Indemnified Parties (or such additional counsel as may reasonably be required by reason of a conflict of interest among or between Indemnified Parties) and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively, "Losses") which any such party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of the Note Documents or the transactions contemplated thereby or any action taken or omitted by the Indemnified Parties under or in connection with any of the foregoing; provided, however, that no Indemnified Party shall be entitled to such rights and remedies to the extent that such Losses occur solely as a result of the willful misconduct, or the gross negligence on the part of any Indemnified Party, as finally determined by a court of competent jurisdiction.

Authorization; Liability of Collateral Agent and Reliance. (a) Each Holder hereby authorizes the Collateral Agent to (i) execute, deliver and perform the Security Agreement, each Note Document of the other Collateral Documents (including releases) and the Guaranty to which the Collateral Agent is or is intended to be a party, (ii) subject to the other terms and provisions hereof, exercise and enforce any or all rights, powers and remedies provided to the Collateral Agent by the Security Agreement, this Agreement, any Note Documentother Collateral Documents, the Guaranty, any applicable Governmental Rule or any other document, instrument or agreement, whether before or after the occurrence of an Event of Default, and (iii) subject to the other terms and provisions hereof, take any other action under the Security Agreement, any Note other Collateral Document and the Guaranty which it shall deem advisable in the best interests of the Holders. Each Holder shall be bound by all of the agreements of the Note Collateral Agent contained in this Agreement, the Security Agreement, the other Collateral Documents and the Guaranty and by all other actions taken by the Collateral Agent pursuant to this Agreement, the Note DocumentsSecurity Agreement, the other Collateral Documents and the Guaranty. (b) Collateral Agent shall not (i) be liable for any action taken or omitted to be taken by it under or in connection with the Purchase Agreement, or any other Note Document or the transactions contemplated hereby, except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein, (ii) be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error, other than an error resulting from its own gross negligence or willful misconduct, the sole recourse of any Holder to whom payment was due but not made shall be to recover from other Holders any payment in excess of the amount to which they are determined to be entitled (and such other Holders hereby agree to return to such Holder any such erroneous payments received by them), or (iii) be responsible in any manner to any Holder or its transferees for any recital, statement, representation or warranty made by the Company or the Guarantors or any officer thereof, contained herein or in any other Note Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, the Purchase Agreement or any other Note Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of the Purchase Agreement or any other Note Document, or for any failure of the Company or the Guarantors or any other party to any Note Document to perform its obligations hereunder or thereunder. The Collateral Agent shall not be responsible for (i) any failure to perfect, maintain, monitor, preserve or protect the security interest or lien granted under the Note Documents, except to the extent caused by the Collateral Agents willful misconduct or gross negligence resulting in a failure of the Collateral Agent to comply with any express written request by the Required Holders to take reasonable specific actions to perfect or protect security interest in the Collateral in accordance with the Collateral Agents obligations under the Note Documents, (ii) the filing, re-filing, recording, re-recording or continuing of any document, financing statement, mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on, or the payment of taxes with respect to, any of the Collateral. In no event shall the Collateral Agent be liable for punitive, special, consequential, incidental, exemplary or other similar damages. In performing its functions and duties hereunder, the Collateral Agent shall exercise the same care that it would in dealing with loans for its own account. The Collateral Agent shall be under no obligation to any Holder or transferee to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, the Purchase Agreement or any other Note Document or the existence or possible existence of any Default or Event of Default, or to inspect the properties, books or records of the Company or the Guarantors or any Affiliate thereof. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Note Document, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein and shall not have or be deemed to have any fiduciary relationship with any Holder or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Note Document or otherwise exist against the Collateral Agent. (c) The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Company or the Guarantors), independent accountants and other experts selected by the Collateral Agent. The Collateral Agent shall be entitled to rely upon the advice of legal counsel, independent accountants, and other experts selected by such Person in its sole discretion. The Collateral Agent shall have no obligation to take any action if it believes, in good faith, that such action is deemed to be illegal or exposes the Collateral Agent to any liability for which the Collateral Agent has not received satisfactory indemnification. The Collateral Agent shall be fully justified in failing or refusing to take any action under the Note Documents Document unless it shall first receive such advice or concurrence of the Required Holders as it deems reasonably appropriate. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under the Note Documents in accordance with a request of the Required Holders, and such a request and any action taken or any failure to act pursuant thereto shall be binding upon all of the Holders. (d) The Holders shall indemnify and hold harmless the Collateral Agent and its affiliates, stockholders, partners, members, officers, directors, employees, agents, representatives, controlling persons, successors, heirs and assigns (collectively, the Indemnified Parties) and save and hold each of them harmless against and pay on behalf of or reimburse such party as and when incurred for any loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, penalty, fine or expense, whether or not arising out of any claims by or on behalf of the Holders or any third party, including interest, penalties, and reasonable attorneys fees and expenses of one counsel to the Indemnified Parties (or such additional counsel as may reasonably be required by reason of a conflict of interest among or between Indemnified Parties) and all amounts paid in investigation, defense or settlement of any of the foregoing (collectively, Losses) which any such party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of the Note Documents or the transactions contemplated thereby or any action taken or omitted by the Indemnified Parties under or in connection with any of the foregoing; provided, however, that no Indemnified Party shall be entitled to such rights and remedies to the extent that such Losses occur solely as a result of the willful misconduct, or the gross negligence on the part of any Indemnified Party, as finally determined by a court of competent jurisdiction.