Common use of Liability of Collateral Agent Clause in Contracts

Liability of Collateral Agent. (a) Neither the Collateral Agent nor any of its Related Parties (as defined in the Amended Original Securities Purchase Agreement) shall: (i) BE LIABLE FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY ANY OF THEM UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (EXCEPT FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS DUTIES EXPRESSLY SET FORTH HEREIN AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT); PROVIDED THAT NO ACTION TAKEN OR NOT TAKEN BY THE COLLATERAL AGENT AT THE DIRECTION OF THE REQUIRED HOLDERS (OR SUCH OTHER NUMBER OR PERCENTAGE OF NOTE HOLDERS AS IS REQUIRED HEREUNDER) SHALL BE CONSIDERED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENT, or (ii) be responsible in any manner to any Note Holder or any other Person for any recital, statement, representation or warranty made by the Company or any officer thereof, contained herein or in any other Transaction 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, this Agreement or any other Transaction Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document, or for the priority of any liens purported to be created by any of the Transaction Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any Collateral, or to make any inquiry respecting the performance by the Company of its obligations hereunder or under any other Transaction Document, or for any failure of the Company or any other party to any Transaction Document to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Transaction Document, or to inspect the properties, books or records of the Company. (b) The Collateral Agent shall not be required to use, risk or advance its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder. In no event shall the Collateral Agent be liable, directly or indirectly, for any special, indirect, punitive or consequential damages, even if the Collateral Agent has been advised of the possibility of such damages and regardless of the form of action. (c) Notwithstanding any other provision of this Agreement or the other Transaction Documents, the Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request or direction of the Required Holders (or such other number or percentage of Note Holders as is required hereunder). The Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Event of Default has occurred and is continuing. The Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Transaction Document or applicable law. (d) The Collateral Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control, including any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility. (e) The Collateral Agent shall have no obligation to file or record any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve, perfect or validate any security interest granted to the Collateral Agent pursuant to any Transaction Document or (ii) enable the Collateral Agent to exercise and enforce its rights under any Transaction Document. In addition, the Collateral Agent shall have no responsibility or liability (i) in connection with the acts or omissions of any Person in respect of the foregoing or (ii) for or with respect to the legality, validity and enforceability of any security interest created in the Collateral or priority of such security interest. (f) Whenever reference is made in this Agreement or any other Transaction Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent (except in connection with the Collateral Agent’s ability to enter into any amendment to the Collateral Agent Fee Letter or any other Transaction Document to which it is a party when such amendment affects the rights and obligations of the Collateral Agent, each of which shall be made in the Collateral Agent’s sole discretion), it is understood that in all cases that the Collateral Agent shall not have any duty to act, and shall be fully justified in failing or refusing to take any such action, if it has not received written instruction, advice or concurrence (email being sufficient) from the Required Holders in respect of such action.

Liability of Collateral Agent. (a) Neither the Collateral Agent nor any of its Related Parties (as defined directors, officers or employees shall be liable for any action taken or omitted by it hereunder except in the Amended Original Securities Purchase Agreement) shall: (i) BE LIABLE FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY ANY OF THEM UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (EXCEPT FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS DUTIES EXPRESSLY SET FORTH HEREIN AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT); PROVIDED THAT NO ACTION TAKEN OR NOT TAKEN BY THE COLLATERAL AGENT AT THE DIRECTION OF THE REQUIRED HOLDERS (OR SUCH OTHER NUMBER OR PERCENTAGE OF NOTE HOLDERS AS IS REQUIRED HEREUNDER) SHALL BE CONSIDERED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENTcase of its willful misfeasance, or (ii) be responsible bad faith, gross negligence or reckless disregard of its duties hereunder or its failure to use reasonable care with respect to the custody, safekeeping and physical preservation of the Collateral in any manner to any Note Holder or any other Person its possession. The Collateral Agent may consult with counsel of its own choice, including in-house counsel, and shall have full and complete authorization and protection for any recital, statement, representation action taken or warranty made omitted by it hereunder in good faith and in accordance with the Company or any officer thereof, contained herein or in any other Transaction 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, this Agreement or any other Transaction Document, or the validity, effectiveness, genuineness, enforceability or sufficiency opinion of this Agreement or any other Transaction Document, or for the priority of any liens purported to be created by any of the Transaction Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any Collateral, or to make any inquiry respecting the performance by the Company of its obligations hereunder or under any other Transaction Document, or for any failure of the Company or any other party to any Transaction Document to perform its obligations hereunder or thereundersuch counsel. The Collateral Agent shall not be under liable with respect to any obligation action taken, suffered or omitted by it in good faith (i) reasonably believed by it to ascertain be authorized or to inquire as to within the observance discretion or performance of any of the agreements contained in, rights or conditions of, powers conferred on it by this Agreement or (ii) in accordance with any other Transaction Document, direction or to inspect the properties, books or records request of the Company. (b) The Collateral Agent shall not be required to use, risk or advance its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunderTrustees. In no event shall the Collateral Agent be liable, directly or indirectly, personally liable for any special, indirect, punitive taxes or consequential damages, even if other governmental charges imposed upon or in respect of (i) the Collateral Agent has been advised of or (ii) the possibility of such damages and regardless of the form of action. (c) Notwithstanding any income or other provision of this Agreement or the other Transaction Documentsdistributions thereon. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectability or marketability of any Collateral Delivered to or held by it hereunder or for the validity or sufficiency of the Lien (or the priority thereof) on the Collateral purported to be created hereby. In no event shall the Collateral Agent be liable for punitive, exemplary, indirect or consequential damages. Except as specifically set forth herein or contemplated hereby, the Collateral Agent shall have no duty (i) to see to any action taken recording, filing or not taken by it depositing of this Agreement or any agreement referred to herein or therein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any re-recording, refiling or redepositing of any thereof, (ii) to see to the maintenance of any insurance or (iii) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with the consent respect to, assessed or at the request or direction levied against, any part of the Required Holders (or such other number or percentage of Note Holders as is required hereunder)Collateral. The Collateral Agent shall not be subject to any fiduciary accountable for the use or other implied duties, regardless of whether a Event of Default has occurred and is continuing. The Collateral Agent shall not be required to take any action that, in its opinion or application by the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Transaction Document or applicable law. (d) The Collateral Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control, including any act or provision Trust of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility. (e) The Collateral Agent shall have no obligation to file or record any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve, perfect or validate any security interest granted to the Collateral Agent pursuant to any Transaction Document or (ii) enable the Collateral Agent to exercise and enforce its rights under any Transaction Document. In addition, the Collateral Agent shall have no responsibility or liability (i) in connection with the acts or omissions of any Person in respect proceeds of the foregoing or (ii) for or with respect to the legality, validity and enforceability of any security interest created in the Collateral or priority of such security interestCollateral. (f) Whenever reference is made in this Agreement or any other Transaction Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent (except in connection with the Collateral Agent’s ability to enter into any amendment to the Collateral Agent Fee Letter or any other Transaction Document to which it is a party when such amendment affects the rights and obligations of the Collateral Agent, each of which shall be made in the Collateral Agent’s sole discretion), it is understood that in all cases that the Collateral Agent shall not have any duty to act, and shall be fully justified in failing or refusing to take any such action, if it has not received written instruction, advice or concurrence (email being sufficient) from the Required Holders in respect of such action.

Liability of Collateral Agent. (a) Neither the Collateral Agent nor any of its Related Parties (as defined directors, officers or employees shall be liable for any action taken or omitted by it hereunder except in the Amended Original Securities Purchase Agreement) shall: (i) BE LIABLE FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY ANY OF THEM UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (EXCEPT FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS DUTIES EXPRESSLY SET FORTH HEREIN AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT); PROVIDED THAT NO ACTION TAKEN OR NOT TAKEN BY THE COLLATERAL AGENT AT THE DIRECTION OF THE REQUIRED HOLDERS (OR SUCH OTHER NUMBER OR PERCENTAGE OF NOTE HOLDERS AS IS REQUIRED HEREUNDER) SHALL BE CONSIDERED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENTcase of its willful misfeasance, or (ii) be responsible bad faith, gross negligence or reckless disregard of its duties hereunder or its failure to use reasonable care with respect to the custody, safekeeping and physical preservation of the Collateral in any manner to any Note Holder or any other Person its possession. The Collateral Agent may consult with counsel of its own choice, including in-house counsel, and shall have full and complete authorization and protection for any recital, statement, representation action taken or warranty made omitted by it hereunder in good faith and in accordance with the Company or any officer thereof, contained herein or in any other Transaction 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, this Agreement or any other Transaction Document, or the validity, effectiveness, genuineness, enforceability or sufficiency opinion of this Agreement or any other Transaction Document, or for the priority of any liens purported to be created by any of the Transaction Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any Collateral, or to make any inquiry respecting the performance by the Company of its obligations hereunder or under any other Transaction Document, or for any failure of the Company or any other party to any Transaction Document to perform its obligations hereunder or thereundersuch counsel. The Collateral Agent shall not be under liable with respect to any obligation action taken, suffered or omitted by it in good faith (i) reasonably believed by it to ascertain be authorized or to inquire as to within the observance discretion or performance of any of the agreements contained in, rights or conditions of, powers conferred on it by this Agreement or (ii) in accordance with any other Transaction Document, direction or to inspect the properties, books or records request of the Company. (b) The Collateral Agent shall not be required to use, risk or advance its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunderTrustees. In no event shall the Collateral Agent be liable, directly or indirectly, personally liable for any special, indirect, punitive taxes or consequential damages, even if other governmental charges imposed upon or in respect of (i) the Collateral Agent has been advised of or (ii) the possibility of such damages and regardless of the form of action. (c) Notwithstanding any income or other provision of this Agreement or the other Transaction Documentsdistributions thereon. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral Delivered to or held by it hereunder or for the validity or sufficiency of the Lien (or the priority thereof) on the Collateral purported to be created hereby. In no event shall the Collateral Agent be liable for punitive, exemplary, indirect or consequential damages. Except as specifically set forth herein or contemplated hereby, the Collateral Agent shall have no duty (a) to see to any action taken recording, filing or not taken by it depositing of this Agreement or any agreement referred to herein or therein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (b) to see to the maintenance of any insurance or (c) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with the consent respect to, assessed or at the request or direction levied against, any part of the Required Holders (or such other number or percentage of Note Holders as is required hereunder)Collateral. The Collateral Agent shall not be subject to any fiduciary accountable for the use or other implied duties, regardless of whether a Event of Default has occurred and is continuing. The Collateral Agent shall not be required to take any action that, in its opinion or application by the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Transaction Document or applicable law. (d) The Collateral Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control, including any act or provision Trust of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility. (e) The Collateral Agent shall have no obligation to file or record any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve, perfect or validate any security interest granted to the Collateral Agent pursuant to any Transaction Document or (ii) enable the Collateral Agent to exercise and enforce its rights under any Transaction Document. In addition, the Collateral Agent shall have no responsibility or liability (i) in connection with the acts or omissions of any Person in respect proceeds of the foregoing or (ii) for or with respect to the legality, validity and enforceability of any security interest created in the Collateral or priority of such security interestCollateral. (f) Whenever reference is made in this Agreement or any other Transaction Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent (except in connection with the Collateral Agent’s ability to enter into any amendment to the Collateral Agent Fee Letter or any other Transaction Document to which it is a party when such amendment affects the rights and obligations of the Collateral Agent, each of which shall be made in the Collateral Agent’s sole discretion), it is understood that in all cases that the Collateral Agent shall not have any duty to act, and shall be fully justified in failing or refusing to take any such action, if it has not received written instruction, advice or concurrence (email being sufficient) from the Required Holders in respect of such action.

Liability of Collateral Agent. (a) Neither the Collateral Agent nor any of its Related Parties (as defined directors, officers or employees shall be liable for any action taken or omitted by it hereunder except in the Amended Original Securities Purchase Agreement) shall: (i) BE LIABLE FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY ANY OF THEM UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (EXCEPT FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS DUTIES EXPRESSLY SET FORTH HEREIN AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT); PROVIDED THAT NO ACTION TAKEN OR NOT TAKEN BY THE COLLATERAL AGENT AT THE DIRECTION OF THE REQUIRED HOLDERS (OR SUCH OTHER NUMBER OR PERCENTAGE OF NOTE HOLDERS AS IS REQUIRED HEREUNDER) SHALL BE CONSIDERED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENTcase of its gross negligence, or (ii) be responsible bad faith, willful misconduct or its failure to use reasonable care with respect to the custody, safekeeping and physical preservation of the Collateral in any manner to any Note Holder or any other Person its possession. The Collateral Agent may consult with counsel of its own choice, including in-house counsel, and shall have full and complete authorization and protection for any recital, statement, representation action taken or warranty made omitted by it hereunder in good faith and in accordance with the Company or any officer thereof, contained herein or in any other Transaction 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, this Agreement or any other Transaction Document, or the validity, effectiveness, genuineness, enforceability or sufficiency opinion of this Agreement or any other Transaction Document, or for the priority of any liens purported to be created by any of the Transaction Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any Collateral, or to make any inquiry respecting the performance by the Company of its obligations hereunder or under any other Transaction Document, or for any failure of the Company or any other party to any Transaction Document to perform its obligations hereunder or thereundersuch counsel. The Collateral Agent shall not be under liable with respect to any obligation action taken, suffered or omitted by it in good faith (i) reasonably believed by it to ascertain be authorized or to inquire as to within the observance discretion or performance of rights or powers conferred on it by this Security and Pledge Agreement or (ii) in accordance with any direction or request of the agreements contained in, or conditions of, this Agreement or any other Transaction Document, or to inspect the properties, books or records of the Company. (b) The Collateral Agent shall not be required to use, risk or advance its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunderTrustees. In no event shall the Collateral Agent be liable, directly or indirectly, personally liable for any special, indirect, punitive taxes or consequential damages, even if other governmental charges imposed upon or in respect of (i) the Collateral Agent has been advised of or (ii) the possibility of such damages and regardless of the form of action. (c) Notwithstanding any income or other provision of this Agreement or the other Transaction Documentsdistributions thereon. Except as specifically provided herein, the Collateral Agent shall not be liable responsible for the validity, sufficiency, collectibility or marketability of any action taken Collateral Delivered to or not taken held by it with hereunder or for the consent validity or at the request or direction sufficiency of the Required Holders Forward Purchase Contract or the Lien (or such other number or percentage of Note Holders as is required hereunder)the priority thereof) on the Collateral purported to be created hereby. The Collateral Agent In no event shall not be subject to any fiduciary or other implied duties, regardless of whether a Event of Default has occurred and is continuing. The Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Transaction Document or applicable law. (d) The Collateral Agent shall not be responsible or liable for any failure punitive, exemplary, indirect or delay in the performance of its obligations under this Agreement arising out of consequential damages. Except as specifically set forth herein or caused, directly or indirectly, by circumstances beyond its control, including any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility. (e) The Collateral Agent shall have no obligation to file or record any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve, perfect or validate any security interest granted to the Collateral Agent pursuant to any Transaction Document or (ii) enable the Collateral Agent to exercise and enforce its rights under any Transaction Document. In additioncontemplated hereby, the Collateral Agent shall have no responsibility duty (a) to see to any recording, filing or liability (i) in connection with the acts or omissions depositing of any Person in respect of the foregoing or (ii) for or with respect to the legality, validity this Security and enforceability of any security interest created in the Collateral or priority of such security interest. (f) Whenever reference is made in this Pledge Agreement or any other Transaction Document agreement referred to herein or therein or any discretionary action by, consent, designation, specification, requirement financing statement or approval of, notice, request or other communication fromcontinuation statement evidencing a security interest, or other direction given to see to the maintenance of any such recording or action to be undertaken filing or to be (or not to be) suffered or omitted by the Collateral Agent depositing or to any electionrerecording, decisionrefiling or redepositing of any thereof, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies (b) to be made (or not to be made) by the Collateral Agent (except in connection with the Collateral Agent’s ability to enter into any amendment see to the Collateral Agent Fee Letter maintenance of any insurance or any other Transaction Document (c) to which it is a party when such amendment affects the rights and obligations of the Collateral Agent, each of which shall be made in the Collateral Agent’s sole discretion), it is understood that in all cases that the Collateral Agent shall not have any duty see to act, and shall be fully justified in failing or refusing to take any such action, if it has not received written instruction, advice or concurrence (email being sufficient) from the Required Holders in respect of such action.the

Liability of Collateral Agent. (a) Neither None of the Collateral Agent nor any of its Related Parties (as defined in the Amended Original Securities Purchase Agreement) shall: directors, officers, employees or agents shall (i) BE LIABLE FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY ANY OF THEM UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the Note or the transactions contemplated hereby (EXCEPT FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS DUTIES EXPRESSLY SET FORTH HEREIN AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENTexcept for its own gross negligence or willful misconduct); PROVIDED THAT NO ACTION TAKEN OR NOT TAKEN BY THE COLLATERAL AGENT AT THE DIRECTION OF THE REQUIRED HOLDERS (OR SUCH OTHER NUMBER OR PERCENTAGE OF NOTE HOLDERS AS IS REQUIRED HEREUNDER) SHALL BE CONSIDERED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENT, or or (ii) be responsible in any manner to any Note Holder or any other Person the Secured Creditor for any recital, statement, representation or warranty made by the Company Assignor or any subsidiary or affiliate of the Assignor, or any officer thereof, contained herein in this Agreement or in any other Transaction Documentthe Note, 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, this Agreement or any other Transaction Documentthe Note, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document, or for the priority of any liens purported to be created by any of the Transaction Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any Collateral, or to make any inquiry respecting the performance by the Company of its obligations hereunder or under any other Transaction DocumentNote, or for any failure of the Company Assignor or any other party to any Transaction Document this Agreement or the Note to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to the Secured Creditor to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Transaction Documentthe Note, or to inspect the properties, books or records of the CompanyAssignor or any of the Assignor's subsidiaries or affiliates. (b) The Collateral Agent shall not be required Secured Creditor hereby agrees to useindemnify, risk or advance its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights reimburse and powers hereunder. In no event shall hold the Collateral Agent be liableand its respective successors, directly assigns and employees (hereinafter in this Section 8.5(b) referred to individually as an "Agent Indemnitee," and collectively as "Agent Indemnitees") harmless from any and all expenses of whatsoever kind and nature imposed on, asserted against or indirectly, for incurred by any special, indirect, punitive of the Agent Indemnitees relating to or consequential damages, even if arising out of the performance by the Collateral Agent has been advised of the possibility of such damages and regardless of the form of action. (c) Notwithstanding any other provision of this Agreement or the other Transaction Documents, the Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request or direction of the Required Holders (or such other number or percentage of Note Holders as is required hereunder). The Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Event of Default has occurred and is continuing. The Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Transaction Document or applicable law. (d) The Collateral Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of as Collateral Agent or caused, directly other document executed in connection herewith or indirectly, by circumstances beyond its control, including in any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or other way connected with the unavailability administration of the Federal Reserve Bank wire transactions contemplated hereby or telex or other wire or communication facility. (e) The Collateral Agent shall have no obligation to file or record any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve, perfect or validate any security interest granted to the Collateral Agent pursuant to any Transaction Document or (ii) enable the Collateral Agent to exercise and enforce its rights under any Transaction Document. In addition, the Collateral Agent shall have no responsibility or liability (i) in connection with the acts or omissions of any Person in respect of the foregoing or (ii) for or with respect to the legality, validity and enforceability of any security interest created in the Collateral or priority of such security interest. (f) Whenever reference is made in this Agreement or any other Transaction Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted thereby by the Collateral Agent as the Collateral Agent or the enforcement of any of the terms of, or the preservation of any rights under any thereof, or in any way relating to any electionor arising out of the manufacture, decisionownership, opinionordering, purchase, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or other disposition, or use of judgmentthe Subsidiary Collateral (including, expression of satisfaction without limitation, latent or other exercise of discretiondefects, rights or remedies to be made (whether or not discoverable), the violation of the laws of any country, state or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the death of any Person (including any Agent Indemnitee), or property damage), or contract claim; provided that no Agent Indemnitee shall be madeindemnified pursuant to this Section 8.5(b) for losses, damages or liabilities to the extent caused by the Collateral Agent (except in connection with the Collateral Agent’s ability to enter into any amendment to the Collateral Agent Fee Letter gross negligence or any other Transaction Document to which it is a party when such amendment affects the rights and obligations of the Collateral Agent, each of which shall be made in the Collateral Agent’s sole discretion), it is understood that in all cases that the Collateral Agent shall not have any duty to act, and shall be fully justified in failing or refusing to take any such action, if it has not received written instruction, advice or concurrence (email being sufficient) from the Required Holders in respect willful misconduct of such actionAgent Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision).

Liability of Collateral Agent. (a) Neither the The Collateral Agent nor any of its Related Parties (undertakes to perform only such duties as defined in the Amended Original Securities Purchase Agreement) shall: (i) BE LIABLE FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY ANY OF THEM UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (EXCEPT FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS DUTIES EXPRESSLY SET FORTH HEREIN AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENT); PROVIDED THAT NO ACTION TAKEN OR NOT TAKEN BY THE COLLATERAL AGENT AT THE DIRECTION OF THE REQUIRED HOLDERS (OR SUCH OTHER NUMBER OR PERCENTAGE OF NOTE HOLDERS AS IS REQUIRED HEREUNDER) SHALL BE CONSIDERED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENT, or (ii) are expressly set forth herein and no duties shall be responsible in any manner to any Note Holder or any other Person for any recital, statement, representation or warranty made by the Company or any officer thereof, contained herein or in any other Transaction Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the implied. The Collateral Agent shall have no liability under or in connection with, and no duty to inquire as to the provisions of any agreement other than this Agreement or any other Transaction Document, or and the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document, or for the priority of any liens purported to be created by any of the Transaction Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any Collateral, or to make any inquiry respecting the performance by the Company of its obligations hereunder or under any other Transaction Document, or for any failure of the Company or any other party to any Transaction Document to perform its obligations hereunder or thereunderPledge Agreement. The Collateral Agent shall not be under liable for any obligation to ascertain action taken or to inquire as omitted by it in good faith except to the observance extent that a court of competent jurisdiction determines that the Collateral Agent’s gross negligence or performance willful misconduct was the primary cause of any loss to the Issuer or the Holders. The Collateral Agent’s sole responsibility shall be for the safekeeping and disbursement of any Possessory Collateral and Collateral Funds, and performing its obligations under the agreements contained inPledge Agreement, or conditions of, in accordance with the terms of this Agreement or any other Transaction Document, or to inspect and the properties, books or records of the Company. (b) Pledge Agreement. The Collateral Agent shall have no implied duties or obligations and shall not be required to use, risk charged with knowledge or advance its own funds or otherwise incur financial liability in the performance notice of any of fact or circumstance not specifically set forth herein. The Collateral Agent may rely upon any notice, instruction, request or other instrument, not only as to its duties or due execution, validity and effectiveness, but also as to the exercise truth and accuracy of any of its rights information contained therein, which the Collateral Agent shall believe to be genuine and powers hereunderto have been signed or presented by the person or parties purporting to sign the same. In no event shall the Collateral Agent be liable, directly or indirectly, liable for any specialincidental, indirect, special, consequential or punitive or consequential damagesdamages (including, but not limited to lost profits), even if the Collateral Agent has been advised of the possibility likelihood of such damages loss or damage and regardless of the form of action. (c) Notwithstanding any other provision of this Agreement or . Absent written direction to do so from the other Transaction DocumentsDirecting Holders and indemnification from the Holders satisfactory to it, the Collateral Agent shall not be liable for obligated to take any legal action taken or not taken by it commence any proceeding in connection with the consent Collateral Funds, any account in which Collateral Funds are deposited, this Agreement or at the request Pledge Agreement, or direction of the Required Holders (to appear in, prosecute or defend any such other number legal action or percentage of Note Holders as is required hereunder)proceeding. The Collateral Agent shall not be subject responsible or liable in any manner for the performance by any other party of their respective obligations under the Pledge Agreement nor shall the Collateral Agent be responsible or liable in any manner for the failure of any other party to honor any fiduciary or other implied duties, regardless of whether a Event the provisions of Default has occurred and is continuingthis Agreement. The Collateral Agent may consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute involving any party hereto, and shall incur no liability and shall be fully indemnified from any liability whatsoever in acting in accordance with the opinion or instruction of such counsel. The Issuer shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel. (b) The Collateral Agent is authorized, in its sole discretion, to comply with orders issued or process entered by any court with respect to the Pledged Collateral and any Collateral Funds, without determination by the Collateral Agent of such court’s jurisdiction in the matter. If any portion of the Pledged Collateral or the Collateral Funds is at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part thereof, then and in any such event, the Collateral Agent is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which it is advised by legal counsel selected by it is binding upon it without the need for appeal or other action; and if the Collateral Agent complies with any such order, writ, judgment or decree, it shall not be required liable to take any action thatof the parties hereto or to any other person or entity by reason of such compliance even though such order, in its opinion writ, judgment or the opinion of its counseldecree may be subsequently reversed, may expose the modified, annulled, set aside or vacated. (c) The Collateral Agent to liability shall in all cases be fully protected in acting or that in refraining from acting if such action or refraining from action is contrary to any Transaction Document or applicable lawin accordance with the written instructions of the Directing Holders. (d) The Collateral Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or causedobligated to file, directly or indirectly, by circumstances beyond its control, including any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility. (e) The Collateral Agent shall have no obligation to file perfect or record any financing statements, notices, instruments, documents, agreements, consents document or other papers as shall be necessary to (i) create, preserve, perfect maintain perfected or validate recorded any security interest granted document relating to the Pledged Collateral Agent pursuant to any Transaction Document or (ii) enable other than at the Collateral Agent to exercise and enforce its rights under any Transaction Document. In addition, the Collateral Agent shall have no responsibility or liability (i) in connection with the acts or omissions of any Person in respect direction of the foregoing Directing Holders or (ii) for or with respect to the legality, validity and enforceability of any security interest created as expressly authorized in the Collateral or priority of such security interestPledge Agreement. (f) Whenever reference is made in this Agreement or any other Transaction Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent (except in connection with the Collateral Agent’s ability to enter into any amendment to the Collateral Agent Fee Letter or any other Transaction Document to which it is a party when such amendment affects the rights and obligations of the Collateral Agent, each of which shall be made in the Collateral Agent’s sole discretion), it is understood that in all cases that the Collateral Agent shall not have any duty to act, and shall be fully justified in failing or refusing to take any such action, if it has not received written instruction, advice or concurrence (email being sufficient) from the Required Holders in respect of such action.

Liability of Collateral Agent. (a) Neither None of the Collateral Agent nor any of its Related Parties (as defined in the Amended Original Securities Purchase Agreement) shall: directors, officers, employees or agents shall (i) BE LIABLE FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY ANY OF THEM UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the Notes or the transactions contemplated hereby (EXCEPT FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS DUTIES EXPRESSLY SET FORTH HEREIN AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENTexcept for its own gross negligence or willful misconduct); PROVIDED THAT NO ACTION TAKEN OR NOT TAKEN BY THE COLLATERAL AGENT AT THE DIRECTION OF THE REQUIRED HOLDERS (OR SUCH OTHER NUMBER OR PERCENTAGE OF NOTE HOLDERS AS IS REQUIRED HEREUNDER) SHALL BE CONSIDERED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENT, or or (ii) be responsible in any manner to any Note Holder or any other Person of the Secured Creditors for any recital, statement, representation or warranty made by the Company Assignors or any subsidiary or affiliate of the Assignors, or any officer thereof, contained herein in this Agreement or in any other Transaction Documentthe Notes, 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, this Agreement or any other Transaction Documentthe Notes, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document, or for the priority of any liens purported to be created by any of the Transaction Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any Collateral, or to make any inquiry respecting the performance by the Company of its obligations hereunder or under any other Transaction DocumentNotes, or for any failure of the Company Assignors or any other party to any Transaction Document this Agreement or the Notes to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to any Secured Creditor to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Transaction Documentthe Notes, or to inspect the properties, books or records of the CompanyAssignors or any of the Assignors' subsidiaries or affiliates. (b) The Collateral Agent shall not be required Secured Creditors hereby agree to useindemnify, risk or advance its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights reimburse and powers hereunder. In no event shall hold the Collateral Agent be liableand its respective successors, directly assigns and employees (hereinafter in this Section 8.5(b) referred to individually as an "Agent Indemnitee," and collectively as "Agent Indemnitees") harmless from any and all expenses of whatsoever kind and nature imposed on, asserted against or indirectly, for incurred by any special, indirect, punitive of the Agent Indemnitees relating to or consequential damages, even if arising out of the performance by the Collateral Agent has been advised of the possibility of such damages and regardless of the form of action. (c) Notwithstanding any other provision of this Agreement or the other Transaction Documents, the Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request or direction of the Required Holders (or such other number or percentage of Note Holders as is required hereunder). The Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Event of Default has occurred and is continuing. The Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Transaction Document or applicable law. (d) The Collateral Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of as collateral agent or caused, directly other document executed in connection herewith or indirectly, by circumstances beyond its control, including in any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or other way connected with the unavailability administration of the Federal Reserve Bank wire transactions contemplated hereby or telex or other wire or communication facility. (e) The Collateral Agent shall have no obligation to file or record any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve, perfect or validate any security interest granted to the Collateral Agent pursuant to any Transaction Document or (ii) enable the Collateral Agent to exercise and enforce its rights under any Transaction Document. In addition, the Collateral Agent shall have no responsibility or liability (i) in connection with the acts or omissions of any Person in respect of the foregoing or (ii) for or with respect to the legality, validity and enforceability of any security interest created in the Collateral or priority of such security interest. (f) Whenever reference is made in this Agreement or any other Transaction Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted thereby by the Collateral Agent as the collateral agent or the enforcement of any of the terms of, or the preservation of any rights under any thereof, or in any way relating to any electionor arising out of the manufacture, decisionownership, opinionordering, purchase, delivery, control, acceptance, use of judgmentlease, expression of satisfaction financing, possession, operation, condition, sale, return or other exercise of discretiondisposition, rights or remedies to be made (or not to be made) by the Collateral Agent (except in connection with the Collateral Agent’s ability to enter into any amendment to the Collateral Agent Fee Letter or any other Transaction Document to which it is a party when such amendment affects the rights and obligations use of the Collateral Agent(including, each without limitation, latent or other defects, whether or not discoverable), the violation of which the laws of any country, state or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the death of any Person (including any Agent Indemnitee), or property damage), or contract claim; provided that no Agent Indemnitee shall be made in indemnified pursuant to this Section 8.5(b) for losses, damages or liabilities to the Collateral Agent’s sole discretion), it is understood that in all cases that extent caused by the Collateral Agent shall not have any duty to act, and shall be fully justified in failing gross negligence or refusing to take any such action, if it has not received written instruction, advice or concurrence (email being sufficient) from the Required Holders in respect willful misconduct of such actionAgent Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision).

Liability of Collateral Agent. (a) Neither None of the Collateral Agent nor any of its Related Parties (as defined in the Amended Original Securities Purchase Agreement) shall: directors, officers, employees or agents shall (i) BE LIABLE FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY ANY OF THEM UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the Note or the transactions contemplated hereby (EXCEPT FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS DUTIES EXPRESSLY SET FORTH HEREIN AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENTexcept for its own gross negligence or willful misconduct); PROVIDED THAT NO ACTION TAKEN OR NOT TAKEN BY THE COLLATERAL AGENT AT THE DIRECTION OF THE REQUIRED HOLDERS (OR SUCH OTHER NUMBER OR PERCENTAGE OF NOTE HOLDERS AS IS REQUIRED HEREUNDER) SHALL BE CONSIDERED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENT, or or (ii) be responsible in any manner to any Note Holder or any other Person the Secured Creditor for any recital, statement, representation or warranty made by the Company Assignor or any subsidiary or affiliate of the Assignor, or any officer thereof, contained herein in this Agreement or in any other Transaction Documentthe Note, 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, this Agreement or any other Transaction Documentthe Note, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document, or for the priority of any liens purported to be created by any of the Transaction Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any Collateral, or to make any inquiry respecting the performance by the Company of its obligations hereunder or under any other Transaction DocumentNote, or for any failure of the Company Assignor or any other party to any Transaction Document this Agreement or the Note to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to the Secured Creditor to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Transaction Documentthe Note, or to inspect the properties, books or records of the CompanyAssignor or any of the Assignor's subsidiaries or affiliates. (b) The Collateral Agent shall not be required Secured Creditor hereby agrees to useindemnify, risk or advance its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights reimburse and powers hereunder. In no event shall hold the Collateral Agent be liableand its respective successors, directly assigns and employees (hereinafter in this Section 8.5(b) referred to individually as an "Agent Indemnitee," and collectively as "Agent Indemnitees") harmless from any and all expenses of whatsoever kind and nature imposed on, asserted against or indirectly, for incurred by any special, indirect, punitive of the Agent Indemnitees relating to or consequential damages, even if arising out of the performance by the Collateral Agent has been advised of the possibility of such damages and regardless of the form of action. (c) Notwithstanding any other provision of this Agreement or the other Transaction Documents, the Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request or direction of the Required Holders (or such other number or percentage of Note Holders as is required hereunder). The Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Event of Default has occurred and is continuing. The Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Transaction Document or applicable law. (d) The Collateral Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of as Collateral Agent or caused, directly other document executed in connection herewith or indirectly, by circumstances beyond its control, including in any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or other way connected with the unavailability administration of the Federal Reserve Bank wire transactions contemplated hereby or telex or other wire or communication facility. (e) The Collateral Agent shall have no obligation to file or record any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve, perfect or validate any security interest granted to the Collateral Agent pursuant to any Transaction Document or (ii) enable the Collateral Agent to exercise and enforce its rights under any Transaction Document. In addition, the Collateral Agent shall have no responsibility or liability (i) in connection with the acts or omissions of any Person in respect of the foregoing or (ii) for or with respect to the legality, validity and enforceability of any security interest created in the Collateral or priority of such security interest. (f) Whenever reference is made in this Agreement or any other Transaction Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted thereby by the Collateral Agent as the Collateral Agent or the enforcement of any of the terms of, or the preservation of any rights under any thereof, or in any way relating to any electionor arising out of the manufacture, decisionownership, opinionordering, purchase, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or other disposition, or use of judgmentthe Company Collateral (including, expression of satisfaction without limitation, latent or other exercise of discretiondefects, rights or remedies to be made (whether or not discoverable), the violation of the laws of any country, state or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the death of any Person (including any Agent Indemnitee), or property damage), or contract claim; provided that no Agent Indemnitee shall be madeindemnified pursuant to this Section 8.5(b) for losses, damages or liabilities to the extent caused by the Collateral Agent (except in connection with the Collateral Agent’s ability to enter into any amendment to the Collateral Agent Fee Letter gross negligence or any other Transaction Document to which it is a party when such amendment affects the rights and obligations of the Collateral Agent, each of which shall be made in the Collateral Agent’s sole discretion), it is understood that in all cases that the Collateral Agent shall not have any duty to act, and shall be fully justified in failing or refusing to take any such action, if it has not received written instruction, advice or concurrence (email being sufficient) from the Required Holders in respect willful misconduct of such actionAgent Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision).

Liability of Collateral Agent. (a) Neither None of the Collateral Agent nor any of its Related Parties (as defined in the Amended Original Securities Purchase Agreement) shall: directors, officers, employees or agents shall (i) BE LIABLE FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY ANY OF THEM UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or the Notes or the transactions contemplated hereby (EXCEPT FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS DUTIES EXPRESSLY SET FORTH HEREIN AS DETERMINED BY A COURT OF COMPETENT JURISDICTION IN A FINAL AND NONAPPEALABLE JUDGMENTexcept for its own gross negligence or willful misconduct); PROVIDED THAT NO ACTION TAKEN OR NOT TAKEN BY THE COLLATERAL AGENT AT THE DIRECTION OF THE REQUIRED HOLDERS (OR SUCH OTHER NUMBER OR PERCENTAGE OF NOTE HOLDERS AS IS REQUIRED HEREUNDER) SHALL BE CONSIDERED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENT, or or (ii) be responsible in any manner to any Note Holder or any other Person of the Secured Creditors for any recital, statement, representation or warranty made by the Company Assignor or any subsidiary or affiliate of the Assignor, or any officer thereof, contained herein in this Agreement or in any other Transaction Documentthe Notes , 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, this Agreement or any other Transaction Documentthe Notes, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document, or for the priority of any liens purported to be created by any of the Transaction Documents, or the validity, genuineness, enforceability, existence, value or sufficiency of any Collateral, or to make any inquiry respecting the performance by the Company of its obligations hereunder or under any other Transaction DocumentNotes, or for any failure of the Company Assignor or any other party to any Transaction Document this Agreement or the Notes to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to any Secured Creditor to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Transaction Documentthe Notes, or to inspect the properties, books or records of the CompanyAssignor or any of the Assignor's subsidiaries or affiliates. (b) The Collateral Agent shall not be required Secured Creditors hereby agree to useindemnify, risk or advance its own funds or otherwise incur financial liability in the performance of any of its duties or the exercise of any of its rights reimburse and powers hereunder. In no event shall hold the Collateral Agent be liableand its respective successors, directly assigns and employees (hereinafter in this Section 8.5(b) referred to individually as an "Agent Indemnitee," and collectively as "Agent Indemnitees") harmless from any and all expenses of whatsoever kind and nature imposed on, asserted against or indirectly, for incurred by any special, indirect, punitive of the Agent Indemnitees relating to or consequential damages, even if arising out of the performance by the Collateral Agent has been advised of the possibility of such damages and regardless of the form of action. (c) Notwithstanding any other provision of this Agreement or the other Transaction Documents, the Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request or direction of the Required Holders (or such other number or percentage of Note Holders as is required hereunder). The Collateral Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Event of Default has occurred and is continuing. The Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Transaction Document or applicable law. (d) The Collateral Agent shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of as collateral agent or caused, directly other document executed in connection herewith or indirectly, by circumstances beyond its control, including in any act or provision of any present or future law or regulation or governmental authority; acts of God; earthquakes; fires; floods; wars; terrorism; civil or military disturbances; sabotage; epidemics; pandemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; or other way connected with the unavailability administration of the Federal Reserve Bank wire transactions contemplated hereby or telex or other wire or communication facility. (e) The Collateral Agent shall have no obligation to file or record any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve, perfect or validate any security interest granted to the Collateral Agent pursuant to any Transaction Document or (ii) enable the Collateral Agent to exercise and enforce its rights under any Transaction Document. In addition, the Collateral Agent shall have no responsibility or liability (i) in connection with the acts or omissions of any Person in respect of the foregoing or (ii) for or with respect to the legality, validity and enforceability of any security interest created in the Collateral or priority of such security interest. (f) Whenever reference is made in this Agreement or any other Transaction Document to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted thereby by the Collateral Agent as the collateral agent or the enforcement of any of the terms of, or the preservation of any rights under any thereof, or in any way relating to any electionor arising out of the manufacture, decisionownership, opinionordering, purchase, delivery, control, acceptance, use of judgmentlease, expression of satisfaction financing, possession, operation, condition, sale, return or other exercise of discretiondisposition, rights or remedies to be made (or not to be made) by the Collateral Agent (except in connection with the Collateral Agent’s ability to enter into any amendment to the Collateral Agent Fee Letter or any other Transaction Document to which it is a party when such amendment affects the rights and obligations use of the Collateral Agent(including, each without limitation, latent or other defects, whether or not discoverable), the violation of which the laws of any country, state or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the death of any Person (including any Agent Indemnitee), or property damage), or contract claim; provided that no Agent Indemnitee shall be made in indemnified pursuant to this Section 8.5(b) for losses, damages or liabilities to the Collateral Agent’s sole discretion), it is understood that in all cases that extent caused by the Collateral Agent shall not have any duty to act, and shall be fully justified in failing gross negligence or refusing to take any such action, if it has not received written instruction, advice or concurrence (email being sufficient) from the Required Holders in respect willful misconduct of such actionAgent Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision).