Common use of Collateral Agent’s Liability Clause in Contracts

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, or its own willful misconduct, and provided further that: (a) the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement; (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties; (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable; (d) the Collateral Agent may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel; (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor pursuant to the terms of this Agreement; (f) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts; (g) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor and furnished, from time to time as it may require, with reasonable security and indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 hereof) shall be construed to relieve Neither the Collateral Agent from liability nor any of its directors, officers, employees, attorneys, and other agents shall be liable for its own grossly negligent action, grossly negligent failure to act, any action or its own omission on their respective parts except for gross negligence or willful misconduct. Without limitation of the generality of the foregoing, and provided further that: the Collateral Agent: (a) the Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable except for the performance of such duties as are specifically set forth in this Agreement and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement; (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties; (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable; (d) the Collateral Agent may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel; (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the advice or such counsel, accountants or experts which have been selected by the Collateral Agent with reasonable care; (b) makes no warranty or representation to any Secured Party and shall not be responsible to any Secured Party for any statements, warranties or representations made in or in connection with this Agreement, the Debentures or any agreement, including, without limitation, the truth of the statements made in any certificate delivered by the Company in this Agreement, the Debentures, any Offering document or other agreement related to any of the foregoing, the Collateral Agent being entitled for the purposes of determining fulfillment of the conditions set forth therein to rely conclusively upon any certificate signed by the Company; (d) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Debentures or to inspect the property (including the books and records) of the Company; (e) shall not be responsible to any Secured Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, or collateral covered by any agreement, the Debentures or any other agreement or document and (f) shall incur no liability under or in respect of this Agreement, the Debentures or any other agreement or document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopy) believed by it in good faith in accordance with to be genuine and correct and signed or sent by the proper party or parties. Neither the Collateral Agent nor any direction of its directors, officers, employees or request of a Senior Creditor pursuant sub-Collateral agents shall have any responsibility to the terms Company on account of this Agreement; (f) the failure of or delay in performance or breach by any Secured Party of any of its obligations hereunder or to any Secured Party on account of the failure of or delay in performance or breach by any other Secured Party or the Company of any of their respective obligations hereunder, under the Debentures or under any other agreement or in connection herewith or therewith. The Secured Parties each hereby acknowledge that the Collateral Agent shall not be liable for under no duty to take any error discretionary action permitted to be taken by it pursuant to the provisions of judgment made in good faith by an officer of the Collateral Agent this Agreement unless it shall be proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts; (g) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do so by a Senior Creditor and furnished, from time to time as it may require, with reasonable security and indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this AgreementRequired Secured Parties.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, or its own willful misconduct, and provided further that: (a) the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement; (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, ; acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties; (c) in the absence of bad faith on the part pant of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable; (d) the Collateral Agent may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel; (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance accordance; with any direction or request of a Senior Creditor pursuant to the terms of this Agreement; (f) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts; (g) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor and furnished, from time to time as it may require, with reasonable security and indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 §8.13 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, gross negligence or its own willful misconduct, and provided further except that: (a) unless an Event of Default actually known to the Collateral Agent shall have occurred and be continuing, the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement against the Collateral Agent but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement;; and (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counselcounsel (which counsel shall be independent of the Companies, any Affiliate thereof and the Secured Creditors), note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties;; and (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counselcounsel (which counsel shall be independent of the Companies, any Affiliate thereof and the Secured Creditors, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable;; and (d) the Collateral Agent may consult with counsel (which counsel shall be independent of the Companies, any Affiliate thereof and the Secured Creditors) and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel;; and (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor pursuant to the terms of this Agreement;Administrative Agent or the requisite portion thereof as expressly provided herein; and (f) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that Agent; and (g) the Collateral Agent was grossly negligent in ascertaining shall not be deemed to have knowledge of any Default or Event of Default unless and until an officer of the pertinent facts;Corporate Trust Department of the Collateral Agent who customarily handles corporate trusts or such other Person employed by the Collateral Agent who has primary responsibility for the transactions contemplated hereby shall have actual knowledge thereof or the Collateral Agent shall have received written advice thereof from the Administrative Agent or any Lender; and (gh) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor one or more Secured Creditors outstanding hereunder and furnished, from time to time as it may require, with reasonable security and indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 5.9 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, or its own willful misconduct, and provided further except that: (a) the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement or in the Security Documents and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement or into the Security Documents against the Collateral Agent but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement;Agreement and the Security Documents, including, without limitation, as a result of (i) the Collateral Agent acting or refraining from acting in accordance with the directions of the Majority Creditors, (ii) the Collateral Agent refraining from acting in the absence of instructions to act from the Majority Creditors, whether or not the Collateral Agent has discretionary power to take such action, or (iii) the Collateral Agent taking discretionary action it is authorized to take under this Section; and (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties;; and (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable;; and (d) the Collateral Agent may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel;; and (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor Noteholder pursuant to the terms of this Agreement;Agreement or any of the Security Documents; and (f) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts;; and (g) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement or any of the Security Documents which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor the Majority Creditors and furnished, from time to time as it may require, with reasonable satisfactory security and indemnity; and . This Section does not impair or otherwise affect the Noteholders’ obligations and liabilities to the Credit Parties (hif any) under the terms of the Credit Agreement and Note Purchase Agreements for any act or failure to act by the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in each case that is in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, or its own willful misconduct, and provided further except that: (a) the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement or in the Security Documents and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement or any Security Document against the Collateral Agent but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement;Agreement and the Security Documents; and (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s 's certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties;; and (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s 's certificate; , provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable;; and (d) the Collateral Agent may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel; (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor pursuant to the terms of this Agreement;Agreement or any of the Security Documents; and (fe) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts;; and (gf) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement or any of the Security Documents which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a the Majority Senior Creditor Creditors and furnished, from time to time as it may require, with reasonable security and a satisfactory indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 §8.13 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, gross negligence or its own willful misconduct, and provided further except that: (a) unless an Event of Default actually known to the Collateral Agent shall have occurred and be continuing, the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement against the Collateral Agent but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement;; and (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counselcounsel (which counsel shall be independent of the Companies, any Affiliate thereof and the Secured Creditors), note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties;; and (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counselcounsel (which counsel shall be independent of the Companies, any Affiliate thereof and the Secured Creditors, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable;; and (d) the Collateral Agent may consult with counsel (which counsel shall be independent of the Companies, any Affiliate thereof and the Secured Creditors) and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel;; and (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor pursuant to the terms of this Agreement;Administrative Agent, the Lenders or the requisite portion thereof as expressly provided herein; and (f) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that Agent; and (g) the Collateral Agent was grossly negligent in ascertaining shall not be deemed to have knowledge of any Default or Event of Default unless and until an officer of the pertinent facts;Corporate Trust Department of the Collateral Agent who customarily handles corporate trusts or such other Person employed by the Collateral Agent who has primary responsibility for the transactions contemplated hereby shall have actual knowledge thereof or the Collateral Agent shall have received written advice thereof from the Administrative Agent or any Lender; and (gh) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor one or more Secured Creditors outstanding hereunder and furnished, from time to time as it may require, with reasonable security and indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 hereof) shall be construed to relieve Neither the Collateral Agent from liability nor any of its directors, officers, employees, attorneys, and other agents shall be liable for its own grossly negligent action, grossly negligent failure to act, any action or its own omission on their respective parts except for gross negligence or willful misconduct. Without limitation of the generality of the foregoing, and provided further that: the Collateral Agent: (a) the Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable except for the performance of such duties as are specifically set forth in this Agreement and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement; (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties; (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable; (d) the Collateral Agent may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel; (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the advice or such counsel, accountants or experts which have been selected by the Collateral Agent with reasonable care; (b) makes no warranty or representation to any Secured Party and shall not be responsible to any Secured Party for any statements, warranties or representations made in or in connection with this Agreement, the Notes or any agreement, including, without limitation, the truth of the statements made in any certificate delivered by the Company in this Agreement, the Notes, any Financing document or other agreement related to any of the foregoing, the Collateral Agent being entitled for the purposes of determining fulfillment of the conditions set forth therein to rely conclusively upon any certificate signed by the Company; (d) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the Notes or to inspect the property (including the books and records) of the Company; (e) shall not be responsible to any Secured Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, or collateral covered by any agreement, the Notes or any other agreement or document and (f) shall incur no liability under or in respect of this Agreement, the Notes or any other agreement or document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopy) believed by it in good faith in accordance with to be genuine and correct and signed or sent by the proper party or parties. Neither the Collateral Agent nor any direction of its directors, officers, employees or request of a Senior Creditor pursuant sub-Collateral agents shall have any responsibility to the terms Company on account of this Agreement; (f) the failure of or delay in performance or breach by any Secured Party of any of its obligations hereunder or to any Secured Party on account of the failure of or delay in performance or breach by any other Secured Party or the Company of any of their respective obligations hereunder, under the Notes or under any other agreement or in connection herewith or therewith. The Secured Parties each hereby acknowledge that the Collateral Agent shall not be liable for under no duty to take any error discretionary action permitted to be taken by it pursuant to the provisions of judgment made in good faith by an officer of the Collateral Agent this Agreement unless it shall be proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts; (g) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do so by a Senior Creditor and furnished, from time to time as it may require, with reasonable security and indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this AgreementRequired Secured Parties.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 8.13 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, gross negligence or its own willful misconduct, and provided further except that: (a) unless an Event of Default actually known to the Collateral Agent shall have occurred and be continuing, the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement against the Collateral Agent but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement;; and (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counselcounsel (which counsel shall be independent of the Companies, noteany Affiliate thereof and the Secured Creditors), Note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties;; and (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counselcounsel (which counsel shall be independent of the Companies, any Affiliate thereof and the Secured Creditors), shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable;; and (d) the Collateral Agent may consult with counsel (which counsel shall be independent of the Companies, any Affiliate thereof and the Secured Creditors) and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel;; and (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor pursuant to the terms of this Agreement;Administrative Agent, the Lenders or the requisite portion thereof as expressly provided herein; and (f) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that Agent; and (g) the Collateral Agent was grossly negligent in ascertaining shall not be deemed to have knowledge of any Default or Event of Default unless and until an officer of the pertinent facts;Corporate Trust Department of the Collateral Agent who customarily handles corporate trusts or such other Person employed by the Collateral Agent who has primary responsibility for the transactions contemplated hereby shall have actual knowledge thereof or the Collateral Agent shall have received written advice thereof from the Administrative Agent or any Lender; and (gh) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor one or more Secured Creditors outstanding hereunder and furnished, from time to time as it may require, with reasonable security and indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 8.13 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, gross negligence or its own willful misconduct, and provided further except that: (a) unless an Event of Default actually known to the Collateral Agent shall have occurred and be continuing, the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement against the Collateral Agent but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement;; and (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counselcounsel (which counsel shall be independent of the Borrower, noteany Affiliate thereof and the Secured Creditors), Note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties;; and (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counselcounsel (which counsel shall be independent of the Borrower, any Affiliate thereof and the Secured Creditors), shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable;; and (d) the Collateral Agent may consult with counsel (which counsel shall be independent of the Borrower, any Affiliate thereof and the Secured Creditors) and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel;; and (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor pursuant to the terms of this Agreement;Lenders or the requisite portion thereof as expressly provided herein; and (f) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that Agent; and (g) the Collateral Agent was grossly negligent in ascertaining shall not be deemed to have knowledge of any Default or Event of Default unless and until an officer of the pertinent facts;Corporate Trust Department of the Collateral Agent who customarily handles corporate trusts or such other Person employed by the Collateral Agent who has primary responsibility for the transactions contemplated hereby shall have actual knowledge thereof or the Collateral Agent shall have received written advice thereof from the Administrative Agent or any Lender; and (gh) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor one or more Secured Creditors hereunder and furnished, from time to time as it may require, with reasonable security and indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. l 2 . No provision of this Agreement (except to the extent provided in Section 5.11 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, or its own willful misconduct, and provided further except that: (a) the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement or in the Security Documents and no implied covenants or obligations of the Collateral Agent (including, without limitation, any fiduciary duties) shall be read into this Agreement or into the Security Documents against the Collateral Agent but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement;Agreement and the Security Documents; and (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties;; and (c) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon, and shall be protected in acting upon, any statement made to it orally or by telephone and believed in good faith by it to have been made by the proper Person; and (d) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable;; and (de) the Collateral Agent may consult with counsel or other experts selected by it and the advice or opinion of such counsel or other experts shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel;counsel or other experts; and (ef) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor pursuant and subject to the terms of this Agreement;Agreement or any of the Security Documents; and (fg) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved determined in a final and nonappealable judgment by a court of competent jurisdiction that the Collateral Agent was grossly negligent in ascertaining the pertinent facts;; and (gh) the Collateral Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Creditors or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment; and (i) the Collateral Agent shall not, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Collateral Agent or any of its branches or Affiliates in any capacity; and (j) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action which, in its opinion or the opinion of its counsel, is contrary to any Credit Document or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law; and (k) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement or any of the Security Documents which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor the Required Creditors, and, if the Collateral Agent believes, in good faith, that the Creditors are requesting that the Collateral Agent take some action outside of the ordinary and customary course, the Collateral Agent shall immediately advise the Creditors of its position with explanation in writing and, if the Creditors continue to require that course of action, the Collateral Agent shall be furnished, from time to time as it may reasonably require, with a reasonable security and indemnity; and (h) customary unsecured agreement to indemnify the Collateral Agent shall not be concerned in connection therewith from an institutional entity with a Tangible Net Worth (as defined in the Note Agreement as in effect on the date hereof or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance as modified with the provisions consent of this Agreementthe Collateral Agent) equal to or greater than $100,000,000. This Section does not impair or otherwise affect the Creditors’ obligations and liabilities to the Borrower (if any) under the terms of the Credit Agreement and Note Agreement for any act or failure to act by the Collateral Agent.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 5.9 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, or its own willful misconduct, and provided further except that: (a) the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement or in the Security Documents and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement or into the Security Documents against the Collateral Agent but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement;Agreement and the Security Documents; and (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s 's certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties;; and (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s 's certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable; (d) ; and the Collateral Agent may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel; (e) ; and the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor pursuant to the terms of this Agreement; (f) Agreement or any of the Security Documents; and the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts; (g) ; and whether or not an Event of Actionable Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement or any of the Security Documents which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor the Creditors (acting unanimously) and furnished, from time to time as it may require, with reasonable satisfactory security and indemnity; and . This Section does not impair or otherwise affect the Creditors' obligations and liabilities to the Company (hif any) under the terms of the Bank Credit Agreement and Note Agreements for any act or failure to act by the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in each case that is in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. No provision of this Intercreditor Agreement (except to the extent provided in Section 5.11 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, or its own willful misconduct, and provided further except that: (a) the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Intercreditor Agreement or in the Pledge Agreement, and no implied covenants or obligations of the Collateral Agent shall be read into this Intercreditor Agreement or the Pledge Agreement against the Collateral Agent, but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Intercreditor Agreement and the Pledge Agreement; (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or partiesparties and the Collateral Agent shall not assume, and shall not be deemed to have assumed, any obligation towards or relationship of agency, fiduciary or trust with or for any other Person; (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable; (d) the Collateral Agent may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel; (e) the Collateral Agent shall not be liable with respect to any action taken or omitted omitted, to be taken by it in good faith in accordance with any direction or request of a Senior Creditor Secured Party pursuant to the terms of this Intercreditor Agreement or the Pledge Agreement; (fe) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer officer, director, employee or agent of the Collateral Agent unless it shall be proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts;Agent; and (gf) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Intercreditor Agreement or the Pledge Agreement (i) which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor the Required Secured Parties and furnished, from time to time as it may require, with reasonable satisfactory security and indemnity; and indemnity or (hii) which may conflict with any provisions of law, this Intercreditor Agreement, the Collateral Agent shall not be concerned with Pledge Agreement or accountable to any Person for the use or application order of any deposited moneys which shall be released court or withdrawn in accordance with the provisions of this Agreementadministrative agency.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, gross negligence or its own willful misconduct, and provided further except that: (a) the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement or in the Security Documents and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement or into the Security Documents against the Collateral Agent but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this AgreementAgreement and the Security Documents; (b) in the absence of bad faith faith, gross negligence or willful misconduct on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s 's certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties; (c) in the absence of bad faith faith, gross negligence or willful misconduct on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s 's certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable; (d) the Collateral Agent may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel; (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor the Majority Creditors pursuant to the terms of this AgreementAgreement or any of the Security Documents; (f) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts;; and (g) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement or any of the Security Documents which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor the Majority Creditors and furnished, from time to time as it may require, with reasonable security satisfactory indemnity. This Section does not impair or otherwise affect the Creditors' obligations and indemnity; and liabilities to the Credit Parties (hif any) under the terms of the Credit Agreement and Note Agreement for any act or failure to act by the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in each case that is in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. No provision of this Intercreditor Agreement (except to the extent provided in Section 5.11 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, negligence or its own willful misconduct, in each case as determined by a court of competent jurisdiction, and provided further thatfurthermore: (a) the Collateral Agent shall not be liable except for the performance of with respect to such duties as are specifically set forth in this Intercreditor Agreement or in the Collateral Documents and no implied covenants or obligations of the Collateral Agent shall be read into this Intercreditor Agreement or the Collateral Documents against the Collateral Agent, but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this AgreementIntercreditor Agreement and the Collateral Documents; (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or partiesparties and the Collateral Agent shall not assume, and shall not be deemed to have assumed, any obligation towards or relationship of agency, fiduciary or trust with or for any other Person; (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable; (d) the Collateral Agent may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel; (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor the Majority Secured Parties pursuant to the terms of this AgreementIntercreditor Agreement or the Collateral Documents; (fe) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved determined by a court of competent jurisdiction that the Collateral Agent was grossly negligent in ascertaining the pertinent facts;; and (gf) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Intercreditor Agreement or the Collateral Documents (i) which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor the Majority Secured Parties and furnished, from time to time as it may require, with reasonable satisfactory security and indemnity; and indemnity or (hii) which may conflict with any provisions of law, this Intercreditor Agreement, the Collateral Agent shall not be concerned with Documents or accountable to any Person for the use or application order of any deposited moneys which shall be released court or withdrawn in accordance with the provisions of this Agreementadministrative agency.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 §8.13 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, gross negligence or its own willful misconduct, and provided further except that: (a) unless an Event of Default actually known to the Collateral Agent shall have occurred and be continuing, the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement against the Collateral Agent but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement;; and (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counselcounsel (which counsel shall be independent of the Borrower, noteany Affiliate thereof and the Secured Creditors), Note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties;; and (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counselcounsel (which counsel shall be independent of the Borrower, any Affiliate thereof and the Secured Creditors), shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable;; and (d) the Collateral Agent may consult with counsel (which counsel shall be independent of the Borrower, any Affiliate thereof and the Secured Creditors) and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel;; and (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor pursuant to the terms of this Agreement;Lenders or the requisite portion thereof as expressly provided herein; and (f) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that Agent; and (g) the Collateral Agent was grossly negligent in ascertaining shall not be deemed to have knowledge of any Default or Event of Default unless and until an officer of the pertinent facts;Corporate Trust Department of the Collateral Agent who customarily handles corporate trusts or such other Person employed by the Collateral Agent who has primary responsibility for the transactions contemplated hereby shall have actual knowledge thereof or the Collateral Agent shall have received written advice thereof from the Administrative Agent or any Lender; and (gh) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor one or more Secured Creditors hereunder and furnished, from time to time as it may require, with reasonable security and indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 §8.13 hereof) shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act, gross negligence or its own willful misconduct, and provided further except that: (a) unless an Event of Default actually known to the Collateral Agent shall have occurred and be continuing, the Collateral Agent shall not be liable except for the performance of such duties as are specifically set forth in this Agreement and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement against the Collateral Agent but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement;; and (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counselcounsel (which counsel shall be independent of the Borrower, noteany Affiliate thereof and the Lenders), Note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties;; and (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counselcounsel (which counsel shall be independent of the Borrower, any Affiliate thereof and the Secured Creditors), shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable;; and (d) the Collateral Agent may consult with counsel (which counsel shall be independent of the Borrower, any Affiliate thereof and the Secured Creditors) and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel;; and (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction or request of a Senior Creditor pursuant to the terms of this Agreement;Lenders or the requisite portion thereof as expressly provided herein; and (f) the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer of the Collateral Agent unless it shall be proved that Agent; and (g) the Collateral Agent was grossly negligent in ascertaining shall not be deemed to have knowledge of any Default or Event of Default unless and until an officer of the pertinent facts;Corporate Trust Department of the Collateral Agent who customarily handles corporate trusts or such other Person employed by the Collateral Agent who has primary responsibility for the transactions contemplated hereby shall have actual knowledge thereof or the Collateral Agent shall have received written advice thereof from the Administrative Agent or any Lender; and (gh) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do by a Senior Creditor one or more Secured Creditors hereunder and furnished, from time to time as it may require, with reasonable security and indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this Agreement.

Collateral Agent’s Liability. No provision of this Agreement (except to the extent provided in Section 5.11 hereof) shall be construed to relieve Neither the Collateral Agent from liability nor any of its directors, officers, employees, attorneys, and other agents shall be liable for its own grossly negligent action, grossly negligent failure to act, any action or its own omission on their respective parts except for gross negligence or willful misconduct. Without limitation of the generality of the foregoing, and provided further that: the Collateral Agent: (a) the Collateral Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable except for the performance of such duties as are specifically set forth in this Agreement and no implied covenants or obligations of the Collateral Agent shall be read into this Agreement but the duties and obligations of the Collateral Agent shall be determined solely by the express provisions of this Agreement; (b) in the absence of bad faith on the part of the Collateral Agent, the Collateral Agent may rely upon the authenticity of, and the truth of the statements and the correctness of the opinions expressed in, and shall be protected in acting upon, any resolution, officer’s certificate, opinion of counsel, note, request, notice, consent, waiver, order, signature guaranty, notarial seal, stamp, acknowledgment, verification, appraisal, report, stock certificate, or other paper or document believed by the Collateral Agent to be genuine and to have been signed, affixed or presented by the proper party or parties; (c) in the absence of bad faith on the part of the Collateral Agent, whenever the Collateral Agent, or any of its agents, representatives, experts or counsel, shall consider it necessary or desirable that any matter be proved or established, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an officer’s certificate; provided, however, that the Collateral Agent, or such agent, representative, expert or counsel, may require such further and additional evidence and make such further investigation as it or they may consider reasonable; (d) the Collateral Agent may consult with counsel and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel; (e) the Collateral Agent shall not be liable with respect to any action taken or omitted to be taken in good faith by it in accordance with the advice or such counsel, accountants or experts which have been selected by the Collateral Agent with reasonable care; (b) makes no warranty or representation to any Secured Party and shall not be responsible to any Secured Party for any statements, warranties or representations made in or in connection with this Agreement, the 2005 Notes or any agreement, including, without limitation, the truth of the statements made in any certificate delivered by the Company in this Agreement, the 2005 Notes, any Financing document or other agreement related to any of the foregoing, the Collateral Agent being entitled for the purposes of determining fulfillment of the conditions set forth therein to rely conclusively upon any certificate signed by the Company; (d) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the 2005 Notes or to inspect the property (including the books and records) of the Company; (e) shall not be responsible to any Secured Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, or collateral covered by any agreement, the 2005 Notes or any other agreement or document and (f) shall incur no liability under or in respect of this Agreement, the 2005 Notes or any other agreement or document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopy) believed by it in good faith in accordance with to be genuine and correct and signed or sent by the proper party or parties. Neither the Collateral Agent nor any direction of its directors, officers, employees or request of a Senior Creditor pursuant sub-Collateral agents shall have any responsibility to the terms Company on account of this Agreement; (f) the failure of or delay in performance or breach by any Secured Party of any of its obligations hereunder or to any Secured Party on account of the failure of or delay in performance or breach by any other Secured Party or the Company of any of their respective obligations hereunder, under the 2005 Notes or under any other agreement or in connection herewith or therewith. The Secured Parties each hereby acknowledge that the Collateral Agent shall not be liable for under no duty to take any error discretionary action permitted to be taken by it pursuant to the provisions of judgment made in good faith by an officer of the Collateral Agent this Agreement unless it shall be proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts; (g) whether or not an Event of Default shall have occurred, the Collateral Agent shall not be under any obligation to take or refrain from taking any action under this Agreement which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it by the security afforded to it by the terms of this Agreement, unless and until it is requested in writing so to do so by a Senior Creditor and furnished, from time to time as it may require, with reasonable security and indemnity; and (h) the Collateral Agent shall not be concerned with or accountable to any Person for the use or application of any deposited moneys which shall be released or withdrawn in accordance with the provisions of this AgreementRequired Secured Parties.